I hit the car and sustained some quite serious injuries. My insurers are telling me that the accident was completely my fault and the solicitors that came free with my insurance said that I have no case at all.
I really think I do have a case. I accept that I went into the bend with a disappearing apex a bit hotter than I should have done but surely a driver running out of fuel and letting his car stop in a blind bend must take some responsibility?
Answer
Because this is a live case, I will not delve too deeply into many of the details of your query.
The car in question was a modern middle/upper-market car with an ECU. This certainly would have told the driver that he was running low on fuel. A quick search on the internet shows that when the vehicle gets low on fuel, it will give a mileage range before the tank will be completely empty.
My view is that if you were to take this case to court, you would have a decent chance of a partial win, meaning establishing some liability against the driver. However, in my opinion, each of you would probably take something close to equal blame.
I follow your argument that running a car out of fuel on the highway is not bad luck, like a flat tyre or an engine failure but a deliberate act. The driver took a chance that he could limp the car home but didn’t get away with it.
Leaving a stranded vehicle on the highway is creating a dangerous obstruction which brings in a different head of law. You have said that it was negligent to run out of fuel and I agree with you. It is also a ‘public nuisance’ to leave a stranded vehicle on the highway unless you have a good excuse.
In my view, it is for the stranded driver to show how the vehicle ran out of fuel, without negligence on his part. I think you have a good chance of establishing blame on the driver of the vehicle but you were riding beyond your braking distances. In my view, a judge would be likely to reduce your damages on a bad day by 50% and on a good day by 25%.
We need only change the facts slightly for you to lose altogether. If that driver had, for example, a blownout tyre or hit a sheep in the road, you would have no case at all. If the vehicle comes to a halt on the highway without negligence on the driver’s part, then usually the entire blame would rest with you.
However, in my opinion, this driver has been negligent and I think you should run this case. The solicitors who came with your insurance have analysed the case differently to the way that I have. They are entitled so to do. They take the viev that you have a less than 50% chance of winning and on that basis, they do not have to bring the claim under your policy of Legal Expenses Insurance.
Despite this, you must ensure that your insurers do not settle the claim with the driver of the car on a full liability basis or indeed any other basis other than without prejudice. There is case law developing (so far only in the lower courts but the most recent appeal was heard by a county-court judge) which says your insurer can concede liability on your behalf, without your consent.
Andrew Dalton
RiDE Magazine June 2023
