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bhinso |
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bhinso World Chat Champion
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Posted: 17:30 - 23 Jan 2020 Post subject: Driver avoids jail sentence after death of motorcyclist |
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UncleFester |
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UncleFester World Chat Champion
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G |
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G The Voice of Reason
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Polarbear |
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Polarbear Super Spammer
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MarJay |
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MarJay But it's British!
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MCN |
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MCN Super Spammer
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Ste |
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Ste Not Work Safe
Joined: 01 Sep 2002 Karma :
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Posted: 19:10 - 23 Jan 2020 Post subject: |
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UncleFester |
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UncleFester World Chat Champion
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Bhud |
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Bhud World Chat Champion
Joined: 11 Oct 2018 Karma :
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Posted: 19:26 - 23 Jan 2020 Post subject: |
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He is guilty of causing death by careless driving, so the judge could have sentenced him to up to 5 years' imprisonment.
https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/causing-death-by-careless-or-inconsiderate-driving/
However, he was treated very leniently:
probably classist judge wrote: |
Your culpability is very low. You made the sort of mistake many drivers do on a daily basis and it’s your misfortune, as well and Mr Brownhill’s, that he was injured and died. |
It was just "unlucky", then.
The judge found that it was enough punishment to just be a little inconvenienced on his way to work for a year. I suppose having to take the bus will surely induce remorse and penitence, in someone who, from his familiarity with tractors and ownership of a Jaguar car, is so obviously genteel.
The remarks made about interfering with the number plate are interesting. The question of whether the bike was stolen or simply had a smaller number plate for aesthetic reasons (as is common) seems to be left hanging in the air.
The rider shouldn't have been riding while disqualified and uninsured. I am not convinced by the underinflated tyre point, because, especially after a crash, and in colder weather, a slow puncture or rim leak is a possibility. The tests do not show the pressure of the tyre while the bike was being ridden. They only show the pressure after it had probably been left sitting in a compound, outdoors, for a few weeks. What sort of bike was it? Was it a dodgy sports bike being ridden by a criminal ("bought yesterday from someone at the pub") or a legit trails bike being ridden by a villager taking someone to work from one field across the road to another?
The news report raises more questions than answers. I hope more light can be thrown on the circumstances so that a balanced picture emerges. It's far from obvious why the culprit should have been treated with such extreme leniency, and it's clear that irrelevant matters were raised (and addressed) at the trial. Nothing new about Jaguars, horses and farms having their attractions for yuppy lawyers and tipping the balance in every situation in life in the UK, but the speed at which the bike was travelling, the type of bike, who the passenger was, the history of the victim, etc. are surely of direct relevance. The rag doesn't answer these questions. |
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Polarbear |
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Polarbear Super Spammer
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Jmoan |
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Jmoan Brolly Dolly
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Bhud |
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Bhud World Chat Champion
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Bhud |
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Bhud World Chat Champion
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Ste |
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Ste Not Work Safe
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UncleFester |
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UncleFester World Chat Champion
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Nobby the Bastard |
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Nobby the Bastard Harley Gaydar
Joined: 16 Aug 2013 Karma :
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Ste |
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Ste Not Work Safe
Joined: 01 Sep 2002 Karma :
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Posted: 23:29 - 23 Jan 2020 Post subject: |
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Pretty sure that if you tell them you've got a license when you're actually banned then the policy is invalid from day one.
They still have to pay out to third parties but if a policy isn't valid then you're uninsured.
Meh, we need another Rogerborg who knows chapter and verse of the relevant legislation as well as being able to quote relevant case law. |
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Nobby the Bastard |
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Nobby the Bastard Harley Gaydar
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Ste |
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Ste Not Work Safe
Joined: 01 Sep 2002 Karma :
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Posted: 23:45 - 23 Jan 2020 Post subject: |
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some website wrote: | As you may, or may not, know I specialise in motoring law and most of my work involves defending people accused of drink driving. With the drink driving often come other road traffic offences such as driving while disqualified and driving without insurance. It’s driving without insurance I want to talk about today because I think far too many police officers, solicitors, barristers and judges miss a key legal point when looking at these cases.
I’ve received prosecution papers today for somebody accused of driving while disqualified and driving without insurance. The no insurance element is claim that the suspect did not tell the insurer about the disqualification. In his statement, the police officers says,
“[i] contacted [the insurer] who called me back informing me they would not consider the insurance policy valid as there were no convictions disclosed.”
Looks like an open and shut case, right? But here’s the problem, the police officer has just set out a full defence!
You see, it’s not for an insurer to decide they would not honour a policy of insurance retrospectively, i.e. they can’t say “oh well you’ve had a crash, but today we’ve decided your policy was void”. The reason for that isn’t surprising, Parliament requires insurance to ease the strain on the health and social services when people are killed or seriously injured in crashes. Allowing insurers to avoid liability retrospectively would undermine that aim. Is it unfair on the insurer? Maybe but they knew the law when they entered the market, so they’ve taken a decision to accept the risk.
Because the insurer hasn’t voided the policy and thus avoided liability they must still pay out in the event of a crash and thus the driver is still insured despite having been disqualified from driving and lied by omission to the insurance company. They therefore have a complete defence to the no insurance allegation.
I get it, you don’t believe me so let’s look at some law. Part VI of the Road Traffic Act 1988 sets out the requirements for insurance and section 151(5) tells us that where a court judgment has been obtained the insurer must pay up, “notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy”. For what its worth, the Act is saying here that the insurer must still pay up if they have subsequently cancelled the policy not if they did so before the incident that led to them/the driver being sued.
The case of Adams v Dunne [1978] R.T.R. 281 involved a defendant who lied to an insurance company by telling them he was not disqualified from driving to obtain insurance. The magistrates held that his policy remained in force because it had not been cancelled at the time he drove, and the charge was dismissed. The case went to the Divisional Court where it was heard by three High Court judges who all agreed with the magistrates. Croom-Johnson, J. said,
“What the facts, as the justices found in the present case, reveal is that here there was an avoidable contract of insurance, and, unless and until the insurance company had taken steps to avoid it, it remained a contract of insurance for the purposes of section 143 of the Road Traffic Act 1972 [now s. 143 of the Road Traffic Act 1988].”
So, there you have it, if somebody obtains insurance by fraud or deception or if they fail to notify the insurer of a change in circumstances the insurance policy remains in force and protects the driver from a criminal charge until the policy is cancelled. |
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Nobby the Bastard |
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Nobby the Bastard Harley Gaydar
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MCN |
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MCN Super Spammer
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Ste |
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Ste Not Work Safe
Joined: 01 Sep 2002 Karma :
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BTTD |
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BTTD World Chat Champion
Joined: 22 Nov 2012 Karma :
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T.C |
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T.C World Chat Champion
Joined: 05 Nov 2003 Karma :
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Posted: 14:43 - 24 Jan 2020 Post subject: |
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The moment a person is disqualified from driving or riding, any insurance policy in force at the time becomes null and void.
It is one of the few situations where it matters not what it states in the small print, you cannot be insured whilst disqualified.
However............
In the case of the driver who was convicted, his insurance is still valid and will still be required to pay out.
It matters not if the rider was disqualified or not, in civil law it is deemed that but for the negligence of the driver, and regardless of the licence status of the rider, the crash would not have occured, and so the driver of the car remains liable.
It is no different to riding without a crash helmet. Although illegal, if the crash is caused by anothers negligence, then the insurance still pays out, but there may be a deduction of up to 25% of the valuation for the injuries sustained but only if it is proven that head injuries were sustained and those injuries were as a direct result of not wearig a helmet.
If the injuries had no bearing on whether a helmet was worn or not, or even securely fstened then there is no deduction.
In this case, despite the rider being disqualified, there will be no deduction unless it is proven that (apart from riding whilst disqualified) the rider took soe action or did something in the physical riding of the bile that directly contributed to the cause of the crash. Otherwise it will be a straightforward claim by the family of the deceased against the car driver.
Unless the deceased had dependants, then under the fatal accidents act, this claim will only be worth a little over £10K pluss reasonable funeral costs anyway.
Civil law (which covers insurance) works very differently to road traffic law with only a minimal cross over in crash cases. ____________________ It is better to arrive 30 seconds late in this world, than 30 years early in the next |
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Nobby the Bastard |
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Nobby the Bastard Harley Gaydar
Joined: 16 Aug 2013 Karma :
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Posted: 16:03 - 24 Jan 2020 Post subject: |
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T.C wrote: | The moment a person is disqualified from driving or riding, any insurance policy in force at the time becomes null and void.
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How does this square off with this caselaw?
Ste wrote: | The case of Adams v Dunne [1978] R.T.R. 281 involved a defendant who lied to an insurance company by telling them he was not disqualified from driving to obtain insurance. The magistrates held that his policy remained in force because it had not been cancelled at the time he drove, and the charge was dismissed. The case went to the Divisional Court where it was heard by three High Court judges who all agreed with the magistrates. Croom-Johnson, J. said,
“What the facts, as the justices found in the present case, reveal is that here there was an avoidable contract of insurance, and, unless and until the insurance company had taken steps to avoid it, it remained a contract of insurance for the purposes of section 143 of the Road Traffic Act 1972 [now s. 143 of the Road Traffic Act 1988].”
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____________________ trevor saxe-coburg-gotha:"Remember this simple rule - scooters are for men who like to feel the breeze on their huge, flapping cunt lips."
Sprint ST 1050 |
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Old Thread Alert!
The last post was made 4 years, 65 days ago. Instead of replying here, would creating a new thread be more useful? |
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