A new German-built car passed me at about 85 mph. and suddenly battered into the central reservation, then cut across me, smacking my leg with its nearside door and knocking me off my bike, with the bike landing on my leg. My adventure boots saved a lot of damage but I’m still left with some quite serious consequences.
The police turned up along with traffic officers and one officer in particular seemed to understand the situation. The front offside tyre of the car was a total mess.
My bike was carted off. I was taken to hospital and my insurers appointed solicitors to bring what I thought would be a straightforward claim. I was advised to strengthen my case by using a hire bike which would bring pressure on the car’s insurers to settle my claim.
Now I am being told by the insurance appointed solicitor that I have no claim because the driver of the car had a puncture that caused the loss of control, so there was no negligence and therefore I have no claim.
Can this possibly be correct? And who pays for the hire bike?
Answer
The liability advice could be correct but I think it is very unlikely to be the case and this is thanks to the very switched-on police officer. I also point out that your insurance-appointed person is no more of a solicitor than you are.
The law is this; there is a principle of evidence, Res ipsa loquitur, which means that where you have control over something – in this case a car – and that car causes harm which is not typical of its use, then you as the driver must show that it is more likely than not that there was some intervening factor not of your making which caused the harm to occur.
This is where the police officer has done you enormous favours. He has given any competent lawyer some massive clues as to the reality of this tyre suddenly puncturing. His report says;
“The front offside tyre of the (German car) showed signs of significant delamination. Visual examination revealed no piercing puncture nor any foreign object in the tyre. In my opinion this tyre has been run at low pressure for some significant distance before failure. The front tyre would have given steering feedback to the driver indicating that something was wrong. Because I was unable to start the vehicle. I cannot say this vehicle has tyre-pressure monitoring but I would anticipate that it has.”
He could not have signposted your ‘lawyer’ any more clearly. I would not necessarily expect a non-speclallst solicitor to have particular knowledge of tyre delamlnatlon. It is something we come across in practice quite a lot but all of our work is road traffic, so a more general solicitor might not have that exposure. However, anyone with a law degree knows res ipsa. and when the answer is being spoon fed to the unqualified clerk who is dealing with your case, he really should have picked it up.
In my opinion, you will win this case. The police officer’s evidence indicates the absence of a puncture but notes a tyre driven without proper pressure for sufficient distance to cause it to heat to the point it became so hot it lost its structure and the absence of evidence of “foreign object penetration”.
The driver of the car is not going to be able to show that he had a sudden and catastrophic puncture but rather that he had been running a tyre under-inflated for some time and as a consequence of driving a low-pressure, low-profile tyre at around 85mph, it catastrophically failed. The driver must show how the accident happened without negligence on his part and in my opinion, he will fall.
You will need an expert in tyres, and there are such experts – I have used them myself. As to the hire bike, the contract you have means you are liable for the charges, so best get on with suing the driver.
Andrew Dalton
RiDE July 2021
Surely the issue of puncture or not is irrelevant? The car changed lanes unexpectedly and knocked the rider off, full stop. That’s what insurance is for, the car’s insurer should pay all 3rd party damages. The actual cause of the event is for them to argue with their insured?
Hi Richard, that is factually probably correct but not quite right in law. In this case it is for the driver of the car to prove that it is more likely than not that the blow out arose without negligence. In English law negligence has to be shown. In a case such as this, where the car did something very unusual and the car was in the control of the driver, he has to “disprove” negligence, which will be presumed.
It should be an offence for a non-qualified person to give legal advice without full disclosure i.e. ‘I am not a lawyer’ – As for ‘..was advised to strengthen my case by using a hire bike which would bring pressure on the car’s insurers to settle my claim.’ This is a pure sales ploy to sell inflated cost motorcycle hire which many riders don’t need. The company providing such poor advice should be made to pay for the hire. Unless you absolutely need a hire vehicle following an accident there are no circumstances where it would be beneficial to your case. (IANAL!).
I absolutely agree. A farrier can’t shoe a horse without being a qualified farrier. A gas fitter cannot fit a boiler without the requisite qualification. I can go on, dentist, physiotherapist, structural engineer, high access window cleaner, etc etc. But advising people about lifechanging events. Well, put a shaved monkey in a polyester suit and call him a claims litigation consultant, or whatever, and they can play at being lawyers. I took over a case which was being absolutely butchered by an unqualified person and she told my client “I am a litigation claims executive and your new person is JUST a solicitor” – in fairness this particular observation has been made, in close to 30 years of practice, just once, but I am not sure this dopey clown actually had any idea what a solicitor actually is.
Still amazed that non qualified persons are advising claimants, hehe why I phoned you the same night as my accident 😃
It is handy, Dave, when the people you ask for help actually know what they are doing!