Whose insurance pays out?

Whose insurance pays out?

Two bikes, two Insurance companies, one fire and one mess. Insurance of first bike to catch fire pays for both

My wife’s Kawasaki ER6 was parked on the drive next to my Honda NC750. My wife’s bike suddenly spontaneously caught fire, for reasons unknown.

That properly went up, to the point that the fire brigade was called, and both bikes were destroyed. We are insured by different companies. I do not want to put in a claim under my fully comprehensive policy with Hastings, but my wife’s insurers, Equity Red Star deny that they need to pay out for my bike, on the basis that “there was no demonstrable negligence” by my wife.

I do not want to get rinsed for two lots of no-claims bonus on both the bikes, then on top of that we have got the cars, and possibly our household insurance. Surely, if through no fault of my own, my wife’s bike catches fire and sets fire to my bike, my insurance company should not be paying for this – and neither should I?

Answer

Equity Red Star are simply wrong in law. Your wife cannot say how her bike came to catch fire, but you have photographic evidence showing her bike on fire and well ablaze, before your bike caught fire.

This principle is called res ipsa loquitur, but just because it has a Harry Potter Latin tag, that does not actually make it especially complex.

It is a rule of evidence, which in basic terms means that when something happens that would not happen without negligence – and the thing that inflicted the damage was under the sole management and control of the defendant — then on the balance of probability it must follow that the defendant must have been negligent.

There is no evidence at all as to how the fire took place. Any idea as to why your wife’s bike caught fire would be pure speculation. But the test is that this cannot normally happen without negligence.

The application of res ipsa loquitur has been that in the absence of negligence, bales of sugar do not usually fall from hoists (the original case of Scott v London & St Katharine’s Docks 1865, involved a docker getting crushed when a bale of sugar cane fell on him) and there are numerous examples given in the practitioner texts of the application of res ipsa loquitur.

The leading practitioner-text in this field of law gives what it calls a “classic illustration” in which two heavy panels fell upon a workman. The managers of the site called no evidence and the Judge said that even if he was unable to say how the panels came to fall, they can only have fallen because of the negligence of those working on the panels, and the Court of Appeal upheld his decision.

Res ipsa loquitur is readily inferred by the courts when there is an inexplicable mechanical failure. However, I fear you will need to go to a small-claims court on this point if your wife’s insurers do not pay for the risk that they have insured.

Stop Press

The writer’s wife’s insurers paid out on the claim after he pointed out this principle of evidence.

Andrew Dalton

RiDE Magazine February 2018

Posted by Andrew Dalton. Last modified: March 26, 2018 at 11:26 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.

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