High and dry in the Highlands

High and dry in the Highlands

I was following a coach along some single track roads in the Scottish Highlands. Eventually the driver braked to give way to an oncoming vehicle, but then put his coach into reverse and backed up and in the process, ran both me and my motorcycle over.

As he reversed, he managed to tear the sump out of his coach, and aggressively told me that the accident was at least partially my fault because I should have sounded my horn to warn him of my presence.

The local police did a good job, but my bike was obviously unrideable. I phoned my insurers and it transpired that as there was an exclusion clause for riding in the Scottish Highlands and Islands, they would not repatriate the motorcycle. It was buried in the small print of my contract so they were no help getting my riding gear back to England. Thanks to some kind and generous locals, I eventually managed to get my motorbike and kit home.

In the process there were hotel and recovery costs, postage for my kit, a giant taxi fare for me to get to a train and travelling expenses to go back and pick up my damaged motorbike. My insurers will pay for the repairs to my motorbike, but nothing else. What am I entitled to recover from the coach driver’s insurer?

Answer

In so far as recovery from your own insurers is concerned, your relationship is governed entirely by contract, and your contract of insurance has the flavour to me of an example which has been bought off a comparison website which, because they compete on price, has chipped away at anything that might cause them an expense. You are bound by the contract and the insurers are under no obligation to go beyond their contractual requirements, and that is indeed exactly where they have stuck. Sorry to sound unsympathetic but if you click on the cheapest price, you’ll get the lowest cover. An Islands exclusion is a new one on me, though.

I also have to be a little careful as your collision occurred in Scotland so this answer is correct in English law and looking at your return home, I think you are based in England. It could be argued that an English court would have jurisdiction in this instance, as the coach driver was in an English coach, and you are domiciled in England and Wales.

The Law of Restitution across all of Europe, and indeed the world, is really quite similar. It is based on the Roman Law concept that “the wrongdoer must place his victim in as close a position as he can to the position the victim would have been in, had the wrongful deed not been done”.

This concept is known as “restitutio in integrum’. The law in England and Wales is this: If A does harm to B and B has to remedy it, so long as what B does is not unreasonable, A has to pay for it. B may have found a cheaper way of remedying the problems that A placed them in, but unless what B does is clearly unreasonable, and A can prove that it is so, then A is liable to B for their losses. Nothing you have done strikes me as being even vaguely unreasonable, in the situation you found yourself in.

As far as the willing helpers are concerned, in English law at least, they are entitled to recompense but you must bring their claim, for example for postage of your kit, on one of two grounds. The first is your duty to pay them back. Second. If the good people decline your payment, a wrongdoer cannot escape his liabilities because of the “beneficence” of others. The English law will not suffer a wrongdoer escaping liability through the generous intervention of others.

In some jurisdictions, but not England, an individual who intervenes to help another has a direct cause of action against the wrongdoer. In English law, any such action will ‘piggyback’ on your claim. The claim will be brought in your name and you will hold any monies recovered on trust.

Andrew Dalton

RiDE Magazine

September 2018

Posted by Andrew Dalton. Last modified: August 24, 2018 at 9:53 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.

Comments

  1. Nicholas KotarskiOctober 27, 2018

    Not a reply to above but a theoretical question. My wife and I are approaching our later years. As I am the assured on my bike and car insurance would my wife still be covered to drive our car after I passed away and claim on the insurance in the event of an accident or would the policies stop on my death? She is a named driver.

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