Is driver winging it?

‘These cases come down to the size of the animal’

My brother came off his Bonneville when a car driver swerved into his path. The driver said he made the manoeuvre because a bird flew across his windscreen and he thought he was going to hit it. My brother did not see any bird. But anyway, the driver’s insurer are saying they are not going to compensate my brother for his injuries and damage to the bike and kit because the driver did nothing wrong and it was just a natural reaction to what the driver thought was a danger. Surely the fact that he swerved into John’s path means they should be paying up?

Roger Jenkins, email

AThis is a bit of a grey area in law but as with many legal conundrums of this sort it comes down to being reasonable. Swerving to avoid an animal is an understandable reaction but can be a dangerous one. Swerving should not be the automatic solution to the problem, because it could potentially create greater dangers. It is often safer for a driver to hit the animal rather than swerving into oncoming traffic. In contrast, hitting a larger animal can have very severe consequences. These cases are likely to come down to the size of the animal and potential harm to the car driver (and passengers) versus the potential damage to other road users.

Your brother’s case involves a bird (if the Defendant is to be believed) and as such he is likely to succeed in arguing the car driver was negligent in this instance.