I wasn’t badly injured, luckily. It turned out there had been a collision earlier that day and the diesel tank of a van had split. The police turned up, got the damaged vehicles away but left patches of diesel all over the road.
I have written to the police telling them I expected them to pay for the damage to my motorcycle and kit, along with my injuries caused by their failure to exercise their duty of care. I got a pretty blunt letter back, saying they had no duty of care to clear the road and I should direct my claim to the drivers in the original crash, which isn’t much help as I have no idea who they are.
I demanded this information from the Police and they said they would give that information to a solicitor or an insurer, so long as they paid for it and started quoting the Data Protection Act at me. I have contacted my MP who was useless. Is this something I can take up with the Police Complaints people?
Answer
Well, you can but I wouldn’t bother. It is long-established law that the police do not owe a duty to make the road safe, whether after a crash such as yours or, for example, where they know there is black ice. The police have the power to close a road but a power is not the same as a duty and use or failure to use a power does not give any legal remedy, even if they do not intervene or intervene so badly that they made no difference.
I am disappointed with the arrogant way the police solicitor wrote to you. The truth is you are a tax payer and I think most non-lawyers would expect the police to clean up after an accident before re-opening the road. Sadly, your reasonable expectation and the law do not match. The policing was poor but did not give rise to a cause of action.
As you note, your bike was comprehensively insured, and your kit was covered by your household insurance. You have not made any sort of a fuss over your injuries which were modest and cleared up in less than two months. If you had been more seriously injured or you were insured third-party only, then your path of least resistance would be via the Motor Insurer’s Bureau untraced driver’s compensation scheme. Eventually, they will get the police report which will show the vehicles involved in the original accident and you will be bringing a claim against the driver whose negligence put diesel all over the road.
However, that is not the course I recommend. Your insurers, who will be paying for your bike, will be interested to get back the five grand they will be spending on your bike. You need to get your bike repaired under your comprehensive policy and your insurers will do the chasing around for the original tortfeasor (the technical term for the person who has committed the civil wrong which led to diesel being spilt all over the road) by buying the police report and contacting the tortfeasor’s insurers. Then, so long as you check that they have recovered, you’ll get your no-clalms bonus back but you will still have an accident recorded against you which will modestly raise insurance premiums for a few years.
I know it is not for the police solicitor to advise or direct you but I do feel a publicly-funded lawyer could and should have been a fair bit more helpful to you. This accident was not your fault, and your presumption the police hed a ‘duty of care’, while wrong, was entirely understandable in the circumstances.
Top tip for a diesel-splll case: keep your kit. If it stinks of diesel and is scuffed. It is good evidence that it was diesel that fetched you off. However, for any chancers out there who stack their own bikes, strategically spilling diesel onto your clothing and blaming your bike being binned on diesel is first of all very unlikely to meet the civil burden of proof and, secondly, fraudulent claims tend to result in jail time.
The judges absolutely hate insurance fraud, and their default is prison.
Andrew Dalton
RiDE Magazine August 2022
Surely in this case it should hsve been the duty of the local highway authority to make the road surface safe after being notified of the hazard by the police. Temporary signage warning of the hazard should have been the bare minimum! I had an incident several years ago late at night where my diesel tank fell of and punctured on a straight country B road. I notified the police who visited the scene and called out a council worked with a truck of sand. He arrived before the breakdown truck! (This was in N. Lincolnshire)
That was an interesting read.
I always thought Highways/Councils cleaned up after an accident/diesel spill. I’ve had instances where the road is closed or been flagged down, especially at night, to be told diesel is being cleared up and keep to one side of the road where the absorbent material is.
Diesel spillage is a common issue for two-wheelers and not just from accidents. Diesel and rain on smooth surfaced roundabouts in towns, riders need the skills of Torvill and Dean. When you smell diesel it’s usually too late.
I do enjoy some of the Blog stories. Thanks