Who’s to blame?

Who’s to blame?

When someone else’s accident causes you to crash, what should you do about it?

I was riding at night when in the distance, very close to my house, I saw a cluster of flashing blue lights. I rode up and saw various emergency vehicles.

After I had been waiting for a few minutes a firefighter came up to me and asked me where I was going. I told him that I needed to get past the collision scene to get to my house, and when he had satisfied himself that I really did need to go through the collision scene to get to my house he checked with a road traffic copper, and the traffic copper told me to ride through the collision scene slowly.

I did, and I wish I hadn’t. My motorbike just fetched out from underneath me as I fell off on a mix of, probably, water, radiator fluid, and oil from the wrecked cars. My motorbike was damaged and I bust my collar bone.

My mates are all telling me that I should sue the fire brigade or the police because they “breached their duty of care” but as a former soldier that would really stick in my throat. These were just blokes doing a job but my mates are telling me that these people all have insurance and the accident is not my fault.

I do not want to go to some claims monkey telling me what to do, so I am asking you. My own insurers seem utterly clueless as to what I should do. One of their claims people said as the fall did not involve another vehicle it is my fault, which seems a bit harsh. Should I sue the emergency services?

Answer

No, do not sue the Fire Brigade or the Police. You do not need to. Potentially, you may have a fairly weak case against the emergency services but it’s a tenuous one. You do have a much easier route though.

You fell off as a result of a clean-up arising from a collision. Looking at the photographs you sent to me it seems that a small van drove onto the wrong side of the road, at a guess he overcooked the bend and drifted across the carriageway. He then had a head on with a Vauxhall Corsa that was on the correct side of the road, so it seems to me pretty likely that the small van is to blame.

If you crash two vehicles into each other it is fairly likely that fluids will be released onto the roads, and emergency services will have to attend to clean up. As a foreseeable consequence of the small van driver’s negligence, slippery (and therefore dangerous) material was placed on the highway by him, or as a result of the clean-up, the emergency services were obliged to clean up the roads.

We sometimes get similar calls when the Police or Fire Brigade used to put down something that looks very much like cat litter on diesel spills. We always treated these cases as the fault of the diesel spiller, rather than the Police or the Fire Brigade doing their best to limit a dangerous situation.

Little van man created the danger and if rescuers or other road users do not react in exactly the correct way, he cannot escape liability. He caused the danger, so he is the guy that you need to go after, and luckily on the photographs you have got a clear shot of his registration number. This will be a pretty straightforward claim, but not against the Police or the Fire Brigade.

If I were defending this claim for the fire brigade or the police I would simply be saying that you were given permission to ride through, but no warranty was given as to your safety. It is self-evident that the road was wet and there was a collision.

The courts, contrary to a lot of myths, are slow to say to people “you can switch your brain off, and somebody else can look after the consequences”. I do not make this allegation against you. I have once slipped on radiator fluid, and my motorbike shot out from underneath me. I am not sure how you would have seen it in the dark, so I am far from convinced you have done anything wrong.

You clearly were not at all keen on going after the Police or Fire Brigade. I am glad that you asked me, rather than an insurance appointed claims clown (who, surprise, surprise) got the law wrong or a daytime TV claims management muppet. You have got a simple and entirely honourable cause of action so use that.

Little van man created the danger by his negligence. He is insured and his insurers are paying for the Corsa in any event. They may argue you should not have ridden through but not withstanding your military past, I don’t think anyone would expect you to stop away from your home, leave your motorbike and walk home or basha up by the side of the road.

You might not have done exactly the right thing in the cool consideration of a court room, but you were in the dark, on a motorbike and you wanted to get home. And so you would have done had little van man not smashed into the Corsa. So he cannot place upon you a duty to take extraordinary care to negate the danger he has created.

Andrew Dalton

Fast Bikes Magazine September 2018

Disclaimer: The legal advice and statements contained within this/these articles is correct at the time of printing. If you are seeking legal advice after a motorbike accident please contact us to speak directly with one of our lawyers.

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Posted by Andrew Dalton. Last modified: August 24, 2018 at 10:36 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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"The Fast Bikes Legal Clinic is compiled by Andrew Dalton, and his bike riding barristers and solicitors at White Dalton Motorcycle Solicitors.

They deal with personal injury claims and their sister company, Motor Defence Solicitors, deals with all the motoring offences. They know everything about bike law, Andrew is a former London motorbike courier turned barrister and solicitor, and we know he's good.

All the White Dalton lawyers are qualified barristers, or solicitors, or both - and they all have full bike licences, too. They don't act for insurance companies or the prosecution.

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