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My son (Best driver in the world, especially with his foglights on) has come home this evening in a taxi as his Civic is awaiting removal from the roadside after rear ending a Mondeo. This happened on an urban dual carriageway, late evening on a dry road. Son swears he was not speeding or tailgating and that the Mondeo driver just slammed on his anchors for no other reason than he had missed his turn. The driver volunteered this explanation and even apologised, he had given no signals at all. Sons' car is almost certainly a write off, the crumple zones doing their job perfectly and he is convinced it was the other guys fault. I don';t think the insurance company will wear that. Has he got a chance?
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none, I'm afraid - think I'm right in saying (paraphrasing) that basic law (insurers) require us to drive at speed whereby we can avoid any situation that might arise ..
now, if he reversed into you ....
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Even if they reverse into you its still dodgey. I had a woman roll back into me . She apologised at first then after a thinking for a little while changed her mind and said I had driven into her. Fortunately there was no damage done but if there was it would be difficult to prove.
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Phil
I refer you to case law- Scott v Warren (1974) when defendant driving in a line of moving traffic was unable to avoid hitting the van in front which had made an emergency stop to avoid hitting a piece of metal which had fallen off a lorry in front of the van. The Magistrates dismissed the case and it was suggested on the hearing of the case stated before the High Court that if a driver did not leave sufficient space between himself and the vehicle in front to avoid a collision then the defendant was guilty of careless driving as he would be in breach of the Highway Code. The Divisional Court disagreed, holding that whether a person had driven carelessly is primarily a matter of fact: the duty of a driver following another vehicle was, as far as reasonably possible, to take up such a position and to drive in such a fashion as to be able to deal with all traffic exigencies REASONABLY expected.
It is automatically assumed by many that in rear end shunts the shunter is guilty of careless driving . Not so if the one in front takes some unindicated and unpredicable action that leads to an accident then that is not careless driving by the back marker.
Quote this to your Insurance Company if they blame your son and the circumstances fit.
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However, that is a matter of law and whether or not an offence was committed. That is not neccessarily related to how an insurance pay-out or not decision is made.
what I am trying to say, is
>Not so if the one in front takes some unindicated and unpredicable action that leads to an accident then that is not careless driving by the back marker
He may or may not be guilty of careless driving, however, the accident is still usually his responsibility.
For example, it is possible for the one in front to be convicted for having no brake lights and still the guy behind can end up having to pay out.
This can be seen clearly in shunt, for example of three cars. The one in the middle will typically have to pay for the damage of the car in front of him, but will be able to claim for the damage to the back of his own car from the one behind. This is way it is always important to remember whether you felt one thump or two.
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After bitter experience (in respect of house insurance, but I'm sure the principle is the same) I have concluded that every policy has a clause in invisible ink - "In the event of a claim this policy is rendered invalid". I think that insurers will sometimes spend as much not paying out as it would cost them to pay, "pour decourager les autres" no doubt.
I would not try too hard on this, lest somebody gets their name in the bad books.
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Several years back I rear-ended a car at a junction who slammed on his brakes for no reason whatsoever and similarly admitted this. I argued this one out with my insurance company as I considered it his fault but the basic line is, as far as they are concerned, you should ALWAYS have braking distance whatever the situation. Therefore for whatever reason someone stamps on the brakes (could be a dog running out in front of the car, driver having an asthma attack or anything) if you run up the back of them it is automatically your fault. The only time it isn't is if someone pulls out of a junction in front of you.
Sorry to be the bearer of bad news - It might be worth a try arguing your case with the insurers but unfortunately you'll almost definitely end up in the same situation.
Main thing is your son is okay - the car is replaceable!
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Phil,
Sorry to hear that you've this to sort out.
I honestly think you all must be pleased he came home in a taxi and put it down to experience.
25yrs ago I went into the side of a Triump Stag at traffic lights , they changed as I was looking down at a map. It was a stupid youth one-off thing, no-one was hurt and I had to accept the blame and live with the premiums for a while.
I had a Rover 2000 then and had modified the sidelamps to replicate Volvo running lights of the time, the guy had no excuse for not seeing me as I hit him.
;-)
David
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There is a small chance that a good solicitor may be able to argue your son's case. As it is he may face a without due care charge if the cops got involved.
HJ
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I suspect you are on a loser unless you can prove that break lights on the car infront were faulty / not working.
I had someone hit the back of me a couple of years ago and although I had slammed on for the car infront of me and managed to miss it (miracle there was enough breaking distance!) the one behind was less fortunate. Mine was a right off, they argued it was my fault for braking hard but lost!!
Matt
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Phil Goodacre wrote:
>
Son swears that the Mondeo driver just slammed on his
> anchors for no other reason than he had missed his turn.
Well he deserved to be rammed then. ;-)
I concur with everyone else. It's bitterly unfair because the mondeo driver has contributed to this incident to such a large extent but, on paper, this is entirely your sons fault...
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A possible defence is that it is illegal to come to a halt on a dual carriageway. This is a criminal offence. The law of negligence affords no protection to those committing a criminal act (a burglar can't sue you if he trips over your stair carpet). Therefore, you can't be liable for damage to the Mondeo.
Try getting the legal protection insurance on the policy to run this argument against the Mondeo insurers.
Another argument may be that it is not reasonably forseeable that a car would come to complete stop on a dual carriageway if there was no obstruction ahead.
Best of luck
Rob
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Rob Fleming wrote:
>
> A possible defence is that it is illegal to come to a halt on
> a dual carriageway.
Stopping on D/C may be morally reprihensible but I don't think you're allowed to ram people for it. ;-)
I think this lad has been bitterly unlucky but I don't think the Mondeo driver can be blamed from a legal point of view... Of course he has IMHO caused this crash.
> This is a criminal offence. The law of
> negligence affords no protection to those committing a
> criminal act (a burglar can't sue you if he trips over your
> stair carpet). Therefore, you can't be liable for damage to
> the Mondeo.
There *must* be flaw in your logic. Dunno what it is though!
> Try getting the legal protection insurance on the policy to
> run this argument against the Mondeo insurers.
Can't hurt to try.
> Another argument may be that it is not reasonably forseeable
> that a car would come to complete stop on a dual carriageway
> if there was no obstruction ahead.
Nah, no chance! It's forseeable that any car may brake urgently at any moment. We can't drive one inch of someone's bumper claiming that there's no reason to assume the car infront will slow...
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In Saturday's D telegraph, Paul Ripley explains why a rear-end shunt is always considered the fault of the driver behind.
In your son's case, his only hope is that the Mondeo driver is honest and will admit his belief in his guilt, and his insurance company will not coerce him to say anything different on oath.
At the end of the day, regardless of the reason for the Mondeo coming to a sudden halt, it will be seen to your son's carelessness in driving without due care. Stopping distances are based on the assumption that the car/obstruction in front has come to an instantaneous dead stop.
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Probably not relevant in this case but there is another situation where a rear-end collision is not necessarily the following driver's fault. I was towing a Daimler on a trailer with a Land-Rover at about 35mph as I approached a closed off right hand lane on a dual carriageway. Nothing in front immediately but three cars came up very fast from behind to pull in front of me just before the roadworks. The front car then braked sharply for a queue ahead making the other two and me brake in turn. I could not brake as quickly as them with 1.5 tonnes of Daimler behind and hit the last car which had swerved in just in front of me. Only damage caused by the L-R bumper was to break all rear lights one side and maybe a slight dent.
I told the driver it was not my fault, had two roadwork witnesses who came over and said exactly the same unbidden and after exchanging insurance details I never heard anything again. I read the Paul Ripley piece and was reminded of what happened to me. Shows once again that Ripley is not so perfect.
David
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I agree with Rob, I believe the Law was changed years ago, when some woman stopped to let a bird ( sparrow or some such) fly off. The person behind rammed but claimed "unreasonable and un-anticipateable stopping". The Law backed him.
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And another exception: stationary traffic queuing up a motorway exit slip road, one driver decides he can't be bothered waiting, pulls out of the queue and back into the inside lane of the m'way at 2mph without checking what's coming up behind him/realising that he can't accelerate quickly enough before the traffic bears down on him...screech, bang.
I used to work near the Warrington IKEA junction of the M62, and it used to happen all the time there - so much so that I would always drive past that junction in the middle lane, even if the inside lane was clear, much as I normally hate middle-lane hogs. Colleague of mine witnessed one such accident, and the driver who had pulled off the slip road was found to be responsible.
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To keep up the flow of Ians ...
I rear-ended somebody once who pulled out of a slip road, in between two heavy vehicles in the inside lane, staright into my lane without looking... crunch!
I then got rammed by the bloke behind me ...
Fortunately nobody was hurt, but the 'cause' driver was over the limit, and everything fell onto his head.
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There is a difference between rear ending someone who stops in front of you - for whatever reason - and someone who swerves into the space in front of you. In the former case, you have more chance of a lottery jackpot than winning the case.
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Rob Fleming wrote:
The law of negligence affords no protection to those committing a criminal act (a burglar can't sue you if he trips over your stair carpet).
I disagree with this. My law degree has taught me that, in such a situation, the burglar can sue. Otherwise, in a Tony Martin type situation, he could put disclaimer notices up all around his property, as in car parks, saying that anyone entering his property is liable to be shot. Assuming he makes adequate provision for the delivery of his mail and milk, under your argument, he would not be liable (provided his gun was held legally). This is certainly not the case...!
Disclaimer: I shall not be held liable for the accuracy of the above information...!!!
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I like the Asian rule, wherever you go its simple. You are responsible for the front and side of your vehicle. The guy behind is responsible for your back. All other circumstances are irrelevant.
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Andy,
Liability in negligence is premised upon omitting to take reasonable care, in a situation where the law says such care ought to have been taken. Shooting at burglars could by no stretch of the imagination be described as an 'omission' - it is a positive act and any 'disclaimer' is utterly irrelevant. In contrast, disclaimers in car parks warn that you cannot sue the operator for omitting to take reasonable care of your car. Tricky, isn't it?
Another possible defence that occurred to me is as follows. Car insurance policies often have a clause in them that you are only insured when driving in accordance with the law. They cease to cover you if, for instance you accidentally drive the wrong way down a one-way street (as the police officer told me at the time). Not only did the Mondeo driver cause the collision, but he had no reasonable excuse and was uninsured at the time.
The Civic driver could therefore make the Mondeo driver personally liable for the damage to the Civic. It would be worth talking to the Civic's legal department about this. The Mondeo's insurer may well be very interested, because they can avoid paying anyone a penny.
No wonder people hate lawyers, is it?
Rob
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Rob
There is a still a case in my mind whereby burglars robbed a public house and, upon exiting the premises, fell on some stairs. It so happened that many customers had warned the landlord of the insufficient lighting on the stairs, the bulb was broken, I believe, but the landlord had neglected to replace it. He was held liable for the personal injury suffered by the burglars.
Further, there was a case where a disused cinema was frequently broken into by youths and when one caused a fire destroying the adjoining property as well, the cinema owner was held liable in negligence, for he had failed to adequately secure the property.
I think that it has already been agreed that the Civic driver has no defence. In any case, the Mondeo driver can always argue that he thought than an animal or a child was about to walk out into the road, which is why he braked so heavily, let alone that he suffered chest pains or something similar. It would be very difficult at a later date to prove that this was not the case. So I cannot agree with your conclusion that the Mondeo driver caused the collision.
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in my book your son should be locked up for a long long time
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Why? We all make mistakes of this nature sometimes - I leave huge braking distances on the motorway and have nearly been caught out a couple of times when some significant braking has happened in front of me.
Not the nicest, most tactful or useful thing to say really - There is a world of difference between this and someone simply not paying attention or driving recklessly. I am sure if you were to be involved in a similar situation where someone braked very harshly in front of you (perhaps in a vehicle with significantly less stopping distance than yourself) and you were unfortunate enough to hit the back of their car you wouldn't wish to be locked away for a 'long long time'?
Still, no doubt your driving is perfect and you never make mistakes...
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> in my book your son should be locked up for a long long time
Why ?
Rather ridiculous reaction and comment; nobody hurt; what seems like, with the information we have, an honest, rather than reckless mistake.
Could happen to anybody, and is at worst a sign or lack of experience, perhaps even bad judgement, but hardly worth being "locked up for a long long time".
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Dan and Mark (B),
Don't take the bait.
S
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> Has he got a chance?
Not one.
It doesn't matter whether or not the other car's brake lights were working, whether or not the behaviour is reaosnable etc. etc.
Even if you could prove one of these, the best you would get under any circumstances would be some sort of contributory negligence which would nto help your son with his insurance issue.
Also, be careful as HJ said, you prob. don't want the police involved.
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As expected, some conflicting posts here. From my own experience, when I was my sons age as it happens, he hasn't got a prayer with the insurers unless Mondeo man admits his actions in writing, and what is the first thing your policy tells you when involved in an accident? Do not admit liability. I just hope that the renewal premium will teach him a lesson and he calms down somewhat. I am just thankful that nobody was hurt.
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Reminds me of a story long ago when driving home from the pub in his Moggie van (ex PO naturally) a mate ran straight into a skip. He staggered home with cuts and bruises and was later visited by the local constabulary. He argued his case that the said skip was not properly illuminated but in defence, the local council produced one of those old paraffin lamps that was now approx 1/8 inch thick and a square yard in size with matching Morris paint specks.
Put it down to experience!
Colin
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