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Title: Mr Whippy made me crash my bike

Date: 25 September 2015

Question

I am having difficulty is progressing my claim against an ice cream van driver for an accident in May and would welcome your help!

I was riding down the A48 and was passing a layby where the ice cream van was parked. Suddenly the ice cream man appeared from in front of the van carrying a sign. He stepped into the road into my path. I had no time to brake safely and had to swerve which caused me to lose control ending up with a broken femur which has been pinned.

My solicitor provided by my insurer tells me the driver’s insurer denies liability for the accident and apparently the man has no personal legal cover. I don’t see how I am faced with getting no compensation when the accident was purely down to him suddenly appearing in front of me without looking that it was safe. Apparently he was going to cross the road to place the sign on the other side of the road to advertise the ice cream van. His insurer says the accident is not covered by his insurance as he was not driving at the time. Please help – is there any avenue I can pursue?

Janine Waters

Answer

I think it is more indemnity that the insurer is denying. That is they are saying the motor insurance policy he has which is presumably a commercial policy does not cover the accident so even if he was negligent they are not responsible for paying compensation. Insurers are often mistaken that just because someone was not driving at the time their motor insurance does not cover negligent acts of the driver.

The key here is to explain to the insurer that his actions arose out of the use of a motor vehicle on a public road. “Arose out of” has a wide meaning which was clarified in the helpful case of Dunthorne –v- Bentley in the Court of Appeal in 1996. In that case the driver ran out of petrol and went to cross the road with a hand held petrol container into the path of a motorist. The court held that this action arose out of the use of a motor vehicle and as such liability and indemnity was established. There can be no question as to the layby/road being a public place.

Further, commercial insurance policies often cover loading and unloading and this would apply to unloading the sign to place it out. I would therefore refer your solicitors to this case and pursue the claim. I think you have very good prospects of success.

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