Nom nom nom. I duly wheeled out (manhandled) my trusty Gold Wing and set off. I had the radio on, the heated grips were set to medium, and I was flying on the giant leather sofa of a bike. All was well in the world. After about an hour I was following a builder’s van. I was in no rush and just sat in lane one minding my own business when I saw a hand come out of the driver’s window and flick what I thought was a cigarette (it turned out to be a cigarillo!!!).
I saw it fly through the air and come straight towards me. I tried to dodge it, but it hit me in the neck, burning through my neck warmer before falling inside my jacket. What are the chances?! I must have looked a right sight as I had to slam on my brakes, pull up on the hard shoulder and strip off looking for the damn thing. So, whilst it may sound comical, I now have serious burns on my neck and chest.
Thankfully, I had my headcam running and got the registration number and company details of the van. However, the owner (who was the employer of the driver) has told me it’s just a “freak accident” and an “act of God” as the wind blew the butt and told me to go away. Is he right?
Answer
No, he is completely wrong, and it is important to set out the legal test. In England and Wales, you as the Claimant biker have to prove on the ‘balance of probabilities’ that the Defendant or Defendants have been negligent; and because of that negligence, you have suffered a loss, or will suffer a loss.
With that in mind, it is fair to say that if you throw a hot, burning cigarillo out of a window and hit and burn someone, you are negligent. In this particular claim, you could bring a claim against the driver and/or his employer and the van’s road traffic insurer will have to pay out for the claim.
My advice is get yourself a clued-up personal injury specialist solicitor and crack on with your case. I would be surprised if liability is not admitted. However, if it isn’t I would bet next month’s pay packet that a Judge will find it for you.
Andrew ‘Chef’ Prendergast
More Bikes – March 2025
