I was riding my GS 1200 Adventure along a pretty regular two-way rural road when I was confronted by a massive balloon tyre bouncing down the road towards me.
The GS has ABS but on panic braking and me probably throwing myself out of the way of the tyre, I managed to drop the bike. The tyre bounced harmlessly over my head.
It turns out the tyre came off a livestock trailer towed by a quad. The lad riding the quad was super apologetic – he had fixed a puncture and only finger tightened the trailer wheel on, meaning to pinch it up properly, but he’d forgotten to. Luckily there were no animals in the trailer.
However, it turns out the lad was 16 and not insured to drive the quad. The police are not interested in the driving uninsured – they say the rules do not apply to agricultural vehicles, even though the quad had a number plate and it was insured.
The quads insurers are saying they are not liable for a smidge over five grand’s worth of damage to my bike. They are giving me two (it seems to me) mutually incompatible reasons.
The first is the lad was not insured. The second seems pretty brass neck to me. Because I neither struck the quad nor did the loose wheel strike me, there is no negligence “in any event”.
I am not bothered about my minor injuries; I was a bit sore for a few days. The worst injury I did was lifting the bike up again, along with the lad.
Am I going to have to deal with this under my fully comp? it seems a bit rough, I have not got a solicitor. Do I need one?
You can deal with this under your fully comp if you want a quiet life but the law is clear. Agricultural vehicle exemptions are too complex and too rare to go into in any detail here, but the police are probably right.
However, the quad was insured. The insurer must meet the losses arising from the use of that quad, so long as it is being used as a vehicle. Towing an empty trailer on the road is definitely using the quad as a vehicle. The quad is insured for anyone using it, with or without the owner’s permission.
The insurers are silent as to whether the quad was being used with the owner’s permission, but that is of no concern to you. They have issued a certificate of insurance to recompense anyone hurt or damaged by the use of the quad.
The insurers are liable to you for your losses. The defence of “we never actually hit you” is nonsense but I see it frequently; admittedly not in these circumstances, but so long as your response fell within the range of reasonably foreseeable responses to having a loose balloon wheel and tyre bouncing towards you, losses flowing from it are recoverable.
Your question is “do I need a solicitor” and the short answer is probably, but for a fixed fee and to do a maximum of three jobs.
Job one is to set out in law the duty of an insurer to indemnify the vehicle and to serve the letter of claim on the insurer, but in your name. You do not want a solicitor on the record for a sub £10k claim.
At the same time, they can draft the Particulars of Claim, which will have to be quite precise. Budget for around two hours’ work from a junior solicitor but do yourself a favour – pick one who knows the answer before you start and get a fixed fee for the letter of claim and Particulars of Claim.
A solicitor on the Law Society Personal Injury Panel will know this. A more senior lawyer per hour who knows their way around this area of law would not take more than 90 minutes to get your instructions, do the letter of claim and the technical bits of the court papers.
A family or wills solicitor could run up hours researching this point in much the same way as I would have to start from pretty close to scratch if drafting a will.
This is quite a specialist area of law and the judges hearing these cases expect to be advised of the law, usually by lawyers.
The final stage (if this gets to the small claims court) would be for a solicitor to draft a “skeleton argument”, setting out the legal basis for your claim and alerting the court to an ECJ case called Vnuk, and to remind the judge about relevant sections in the Road Traffic Act 1988.
Personally, I would advise suing the insurers directly. An alternative would be to use the fully comp so your bike is repaired swiftly, see if your insurers get their outlay back and then you don’t have to do anything but tell your insurers if the quad’s insurers do not pay up, you personally want to sue for their outlay.
You will need a solicitor’s help to have the debt “assigned” to you. You can only sue for your own loss – you cannot sue for your insurer’s loss without an assignment.
In summary, you will need lawyer’s help on this. It is not the sort of thing the general high street solicitor would be guaranteed to know about so pick one who instantly knows the answer on the first call.
If they say they need several hours’ research, move on and pick another one. You do not want to be paying to be someone’s learning curve.
Fast Bikes June 2021