Ask the lawyer
Was he knocked off after a blow-out or negligence?
Q
I WAS INVOLVED in a side swipe on the motorway. I was in lane two, my speed set by cruise control to 70 mph. A new German-built car passed me at about 85 mph, and suddenly battered into the central reservation, then cut across me, smacking my leg with its nearside door and knocking me off my bike, with the bike landing on my leg. My adventure boots saved a lot of damage but I’m still left with some quite serious consequences.
The police turned up along with traffic officers and one officer in particular seemed to understand the situation. The front offside tyre of the car was a total mess.
My bike was carted off, I was taken to hospital and my insurers appointed solicitors to bring what I thought would be a straightforward claim. I was advised to strengthen my case by using a hire bike which would bring pressure on the car’s insurers to settle my claim. Now I am being told by the insurance appointed solicitor that I have no claim because the driver of the car had a puncture that caused the loss of control, so there was no negligence and therefore I have no claim.
Can this possibly be correct? And who pays for the hire bike?
A
THE LIABILITY ADVICE could be correct but I think it is very unlikely to be the case and this is thanks to the very switched-on police officer. I also point out that your insurance-appointed person is no more of a solicitor than you are. The law is this; there is a principle of evidence,
which means that where you have control over something — in this case a car — and that car causes harm which is not typical of its use, then you as the driver must show that it is more likely than not that there was some intervening factor not of your making which caused the harm to occur.
This is where the police officer has done you enormous favours. He has given any competent lawyer some massive clues as to the reality of this tyre suddenly puncturing. His report says; “The front offside tyre of the (German car) showed signs of significant delamination. Visual examination revealed no piercing puncture nor any foreign object in the tyre. In my opinion this tyre has been run at low pressure for some significant distance before failure. The front tyre would have given steering feedback to the driver indicating that something was wrong. Because I was unable to start the vehicle, I cannot say this vehicle has tyre-pressure monitoring but I would anticipate that it has.”
He could not have signposted your ‘lawyer’ any more clearly. I would not necessarily expect a non-specialist solicitor to have particular knowledge of tyre delamination. It is something we come across in practice quite a lot but all of our work is road traffic, so a more general solicitor might not have that exposure. However, anyone with a law degree knows and when the answer is being spoon fed to the unqualified clerk who is dealing with your case, he really should have picked it up.
In my opinion, you will win this case. The police officer’s evidence indicates the absence of a puncture but notes a tyre driven without proper pressure for sufficient distance to cause it to heat to the point it became so hot it lost its structure and the absence of evidence of “foreign object penetration”. The driver of the car is not going to be able to show that he had a sudden and catastrophic puncture but rather that he had been running a tyre under-inflated for some time and as a consequence of driving a low-pressure, low-profile tyre at around 85mph, it catastrophically failed. The driver must show how the accident happened without negligence on his part and in my opinion, he will fail.
You will need an expert in tyres, and there are such experts — I have used them myself. As to the hire bike, the contract you have means you are liable for the charges, so best get on with suing the driver.