Claiming for accident during a test drive?

Chemical Byrne

OK, lets say someone goes to a garage to test drive a car they are interested in. They drive the car alone without the accompaniment of the salesman. During the test drive the driver, for whatever reason, loses control of the car and crashes. Lets say it is because the handling of the car wasn't what they were used to. Car would have a valid NCT, mechanically sound etc.

What level of motoring insurance would the garages have for cars they have for sale?

Would the driver be entitled to claim for personal injury from the accident even though it was largely their fault for losing control because they were not used to the handling of the car?

Peregrinus

I suspect not. The motor dealer would have the legally required 3rd-party insurance, and they would probably insure the car itself, for their own benefit. But there is no reason why they would insure a prospective customer against injury resulting from the customer's own negligence. They have no liability there, so why would they insure?

Chemical Byrne

I see. So would their insurance cover the damage to the car and to whatever the car crashed into? Would the driver just have to cover their own medical and injury expenses? Could the driver be pursued for anything?


OK so let's consider a situation where the car had valid NCT etc etc, but one (or more) of the tyres was worn beyond the 1.6mm legal limit, or was otherwise faulty, which would effectively make the car unroadworthy. In that situation could the driver claim PI from the garage under the rationale that the worn tyre(s) caused the car to handle poorly and crash. Would it have to be proven that the tyre was the cause or would the worn tyre, and consequent roadworthiness, in itself be enough to establish liability?

aphex™

Last time I test drove a car the salesman said my own insurance was going to cover the drive. This was a main dealer.

Chemical Byrne

aphex™ wrote: »

Last time I test drove a car the salesman said my own insurance was going to cover the drive. This was a main dealer.

But wouldn't that all be down to the particulars of your own insurance policy. I have 3rd party on my car and I don't recall anything in there about cover for driving other people's cars, or for test drives.

Ken.

I have 3rd party with Liberty and recently got a new car. I rang them up to see what I could do as I was collecting the car late in the evening after they were closed. The lady told me that nearly all policies have a provision for you to drive other cars as long as,
1.You are insured on a car.
2.The other car is insured by the owner.
3.The car is not in your name.

Basically she told me I was ok to drive it home and sort out the change over the next morning.

Wanderer78

would a dealer not have public liability?

Chemical Byrne

ken wrote: »

I have 3rd party with Liberty and recently got a new car. I rang them up to see what I could do as I was collecting the car late in the evening after they were closed. The lady told me that nearly all policies have a provision for you to drive other cars as long as,
1.You are insured on a car.
2.The other car is insured by the owner.
3.The car is not in your name.

Basically she told me I was ok to drive it home and sort out the change over the next morning.

What about the "open driving" thing? Would the owner of the other car not need to have specified this on their policy?

NUTLEY BOY

aphex™ wrote: »

Last time I test drove a car the salesman said my own insurance was going to cover the drive. This was a main dealer.

Yoiks, remind me not to go there.........

NUTLEY BOY

Wanderer78 wrote: »

would a dealer not have public liability?

Public liability insurance usually excludes claims arising from the use, possession, custody, control, ownership or even dreaming about mechanically propelled vehicles.

Wanderer78

NUTLEY BOY wrote: »

Public liability insurance usually excludes claims arising from the use, possession, custody, control, ownership or even dreaming about mechanically propelled vehicles.

feck off, your not getting me dreams!

thanks for that

NUTLEY BOY

Chemical Byrne wrote: »

SNIP...

OK so let's consider a situation where the car had valid NCT etc etc, but one (or more) of the tyres was worn beyond the 1.6mm legal limit, or was otherwise faulty, which would effectively make the car unroadworthy. In that situation could the driver claim PI from the garage under the rationale that the worn tyre(s) caused the car to handle poorly and crash. Would it have to be proven that the tyre was the cause or would the worn tyre, and consequent roadworthiness, in itself be enough to establish liability?

Yes, on the basis that it was plain negligence to allow the customer to use a defective vehicle.

Yes, it would have to be proven - usual rules of evidence and burden of proof apply.

Chemical Byrne

I assume the level of proof required would be "on balance of probability"?

Typically, what evidence would one need? How would one go about arguing that the worn tyres were the cause? Would a technical survey be required?

Mr. Incognito

A new car would be mechanically sound in the main.

The garage should satisfy themselves that the driver has insurance. The driver would most likely have to sign a waiver stating that they accept the responsibility for the test drive

If they failed to do so and the driver had no insurance they (the garage) would have to suffer the loss.

coylemj

Mr. Incognito wrote: »

A new car would be mechanically sound in the main.

The garage should satisfy themselves that the driver has insurance. The driver would most likely have to sign a waiver stating that they accept the responsibility for the test drive

If they failed to do so and the driver had no insurance they (the garage) would have to suffer the loss.

A dealer can't rely on the prospective customer having insurance, it's down to the dealer to have at least third party cover for people doing test drives. As the owner of the car they are ultimately responsible, whether the driver has his own insurance or not and they could be prosecuted for knowingly letting an uninsured driver take the car out on the public road with no cover.

A lot of younger drivers have policies that are restricted to their own car so they are not covered when they drive another car. Any time I've done a test drive, the sales guy always came along, I assumed it was partly a requirement on the part of their insurance and partly so he could continue the sales pitch on the move.

Victor

Peregrinus wrote: »

I suspect not. The motor dealer would have the legally required 3rd-party insurance, and they would probably insure the car itself, for their own benefit. But there is no reason why they would insure a prospective customer against injury resulting from the customer's own negligence. They have no liability there, so why would they insure?

The driver testing the vehicle is a third party.

First party - the policy holder
Second party - the insurance company
Third party - everyone else

Wanderer78 wrote: »

would a dealer not have public liability?

Likely. yes, but there is no general obligation to have it.

coylemj wrote: »

Any time I've done a test drive, the sales guy always came along, I assumed it was partly a requirement on the part of their insurance and partly so he could continue the sales pitch on the move.

And to reduce the risk of you stealing the car.

Peregrinus

Somebody looking to buy a car may be doing so because he does not already own a car, and of course if he doesn't currently own a car he is unlikely to have motor insurance. So dealers cannot rely on people test-driving cars having their own insurance.

I'm pretty sure that all (properly-run) dealerships will have a policy providing third-party cover for all cars held by the dealer which are test-driven, etc. And I would imagine that most of them also insure the value of the car to the dealer. That's not legally required, but it's obviously in the dealer's own interests to have that cover in place.

If the car crashes on a test drive and the driver is injured, my guess is that he's not covered by the dealer's policy. But if he can show that, e.g, the car was unroadworthy and the dealer was negligent in permitting it to be taken out and driven, then he may recover against the dealer in negligence.

(I recall a case a few years back in which a new car was delivered to a customer, with neither the customer nor the dealer noticing that there was a polystyrene block wedged under the brake pedal (put there to prevent movement of the pedal during shipping of the car; should have been removed before delivery but this was overlooked). The customer drove got about a hundred yards from the dealer's premises before his inability to brake caused a crash; he was killed. The case settled at an early stage with a substantial payout to his dependents. But a car being offered for sale by a dealer is normally in roadworthy condition, so it would require proof of some fact like that before the driver could hope to recover.)

Peregrinus

Victor wrote: »

The driver testing the vehicle is a third party.

First party - the policy holder
Second party - the insurance company
Third party - everyone else

No, the first party is the insured. Normally the insured and the policy holder are the same person but in this case not.

Remember, the legal obligation to have insurance is imposed on the driver, not the owner of the vehicle, and if there is an accident resulting in loss, the victims will sue in negligence and it is usually the driver's negligence that they are relying on.

So in this case the owner of the car, the dealer, effects an insurance policy against liability which the driver may incur through his negligent driving of the car. To comply with the legal requirement this policy has to cover the whole world except the driver. The policy holder is the dealer, but the insured is the driver.

Chemical Byrne

Thanks for all the input. Many posts refer to the test driving of a new car but I would be more thinking along the lines of a used car that might have a worn tyre or some other minor fault which could be used to nail the dealer for a negligence claim.

In the case of a bald tyre for example, could the defence argue, successfully, that it was the driver's responsibility to ensure the roadworthiness of the car before taking it out onto a public road?

And if they did could the driver successfully respond that they are not competent to judge the adequacy of the technical ins and out of a vehicle because they are not qualified mechanics and they rely on the dealer's opinion in this regard.

I suppose one could always ask prior to the drive "is this car roadworthy?" That way the dealer has misrepresented the condition of the car should an accident happen which could be attributed to a worn tyre.

Peregrinus

If you're a layman, test-driving a car offered for sale by a dealer in the course of business, I think it's reasonable for you to rely on his (a) superior familiarity with the car, which he has prepared for sale, and (b) expertise and awareness as a motor dealer, and to assume that the car he is inviting you to drive is in fact safe to drive. So if he sends you out on the road in a car that is unroadworthy and you are injured as a result, yes, I think you could sue him. I don't think you have to ask him "is the car roadworthy?" in order to be able to do this; the very fact that he is offering it for sale and inviting you to drive it is an implied representation that it is roadworthy.

Note, though, that the evidential burden would still be on you to show (a) that the car was not roadworthy, and (b) that this caused the injury to you. If the car had, say, bald tyres but the accident was caused by your speeding and texting at the same time, then you're cactus.

Chemical Byrne

I get your drift on the implication that the car is roadworthy. I'm just suggesting asking for the statement explicitly as a bullet proof way of being reliant on his expert opinion.

But lets say the road was wet and the car had a bald tyre and left the road going around a turn. I'd imagine it would be very very difficult for the dealer to successfully argue that the tyre was not the cause?

Would it be usual for the gaurds or the insurers to go looking and skid marks and estimating speeds for this type of accident? I suppose it would depend on the value of the claim?

Peregrinus

Chemical Byrne wrote: »

But lets say the road was wet and the car had a bald tyre and left the road going around a turn. I'd imagine it would be very very difficult for the dealer to successfully argue that the tyre was not the cause?

Would it be usual for the gaurds or the insurers to go looking and skid marks and estimating speeds for this type of accident? I suppose it would depend on the value of the claim?

It's not up to the dealer to show that the tyre was not the cause; it's up to you to show that it probably was the cause. (On these facts, it probably was, though of course we also need to know what speed you were doing and whether that was a safe speed for the conditions).

The guards are unlikely to be involved in a simple one-vehicle road accident (unless to prosecute the driver for careless driving or similar, in which case obviously the chances of his being successful in saying that he was not responsible for the accident are not great). The guards don't care about civil claims and have no responsibility to gather evidence either to support them or to defend them. The insurance company here will be acting for the defendant - i.e. the dealer. So if you're the driver and the injured party, it's up to you to gather and present any technical evidence that you need to support your case. If your case relies on an engineer's report or a mechanic's report or similar, it's up to you to commission (and pay for) the reports you need.

Chemical Byrne

I see.

Same circumstances, but if the car had no NCT when taken out on the test drive (along with a dodgy tyre), would that be something that could come back on the driver for knowingly driving an unNCT'd car on the road? Or would liability all still rest with the dealer as the owner and the competent person?

In the event of such an accident, typically what would be the evidence and information that the plaintiff ought to have to hand if a claim were to be made?
Is the dealer obliged to allow the plaintiffs engineer/mechanic access to the vehicle to study it?

NUTLEY BOY

Chemical Byrne wrote: »

I see.

Same circumstances, but if the car had no NCT when taken out on the test drive (along with a dodgy tyre), would that be something that could come back on the driver for knowingly driving an unNCT'd car on the road? Or would liability all still rest with the dealer as the owner and the competent person?

In the event of such an accident, typically what would be the evidence and information that the plaintiff ought to have to hand if a claim were to be made?
Is the dealer obliged to allow the plaintiffs engineer/mechanic access to the vehicle to study it?

In context, don't get hung up on current NCT validity. Curiously enough a valid NCT certificate is not proof that a car is roadworthy. Equally, the absence of a current NCT does not imply that the car was unroadworthy.

In an accident of the hypothetical type mentioned the onus of proof of defect lies with the claimant. The claimant would have to have the car examined by an engineer to establish the requisite evidence.

The dealer would be expected to allow the claimant's engineer access to inspect the vehicle. If the dealer refused inspection the claimant could get a court order to allow it.

The claimant might also make an application for discovery of the records pertinent to that vehicle to see what the garage knew or ought to have known. Applications for discovery are not to be granted for the asking - the claimant would need to show just cause for the order being made as distinct from going on the proverbial "fishing expedition".

coylemj

Peregrinus wrote: »

Remember, the legal obligation to have insurance is imposed on the driver, not the owner of the vehicle....

No, the onus to have the car insured falls on both the owner and the driver and if the driver is uninsured and the MIBI have to pay a claim, they can go after the owner to recoup the money they paid out.

S.56(1) of the RTA 1961 imposes the obligation to be covered by either a policy of insurance or an exempted person, the penalty for non-compliance is described as follows...

(3) Where a person contravenes subsection (1) of this section, he and, if he is not the owner of the vehicle, such owner shall each be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.


http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0056.html#sec56

Peregrinus wrote: »

... and if there is an accident resulting in loss, the victims will sue in negligence and it is usually the driver's negligence that they are relying on.

Indeed they will, otherwise they wouldn't have a case but in almost all cases it's the owner of the car they will sue.

Peregrinus

No, they'll sue the driver. On what basis could they argue that the owner has a liability to them? Their injuries have been caused by the driver's negligence, not the owner's.

Assuming there is insurance in place, the insurer will step in to defend the claim against the driver. They do this regardless of who effected the policy or paid the premium; the insured risk is the risk of liability resulting from the driver's negligence, and that's all that matters.

Chemical Byrne

Well there you're getting into a situation where the driver crashes into another motorist who may then sue them.
I guess I'm thinking more along the lines of where a faulty tyre causes the car to leave the road and hit a ditch, wall, whatever. Just a single vehicle collision with just the driver claiming off the dealer.

coylemj

Peregrinus wrote: »

No, they'll sue the driver. On what basis could they argue that the owner has a liability to them? Their injuries have been caused by the driver's negligence, not the owner's.

The owner permitted the driver to drive the car so bears ultimate liability and it's common knowledge that if you allow an uninsured driver to drive your car, there is an accident and a claim and the MIBI pays out, they can chase you for the money.

According to you, anyone who owns a car can give the keys to any tosser to take it out on the road with no fear of retribution in civil or criminal law.

Peregrinus

coylemj wrote: »

The owner permitted the driver to drive the car so bears ultimate liability and it's common knowledge that if you allow an uninsured driver to drive your car, there is an accident and a claim and the MIBI pays out, they can chase you for the money.

According to you, anyone who owns a car can give the keys to any tosser to take it out on the road with no fear of retribution in civil or criminal law.

No, all I'm saying is that the person injured has no claim against the owner of the car unless he can show that the owner was negligent, and that the owner's negligence caused or contributed to the victim's injury. The mere fact that he is the owner of the car doesn't establish that. Nor does the mere fact that the owner is guilty of an offence (in permitting the car to be driven without insurance) establish that. MIBI may have a claim against the owner, but the injured victim does not (without more facts).

Victor

Peregrinus wrote: »

If you're a layman, test-driving a car offered for sale by a dealer in the course of business, I think it's reasonable for you to rely on his (a) superior familiarity with the car, which he has prepared for sale, and (b) expertise and awareness as a motor dealer, and to assume that the car he is inviting you to drive is in fact safe to drive.

Are you suggesting that a reasonable person, or indeed any person, would trust a car salesman? :pac:

So if he sends you out on the road in a car that is unroadworthy and you are injured as a result, yes, I think you could sue him. I don't think you have to ask him "is the car roadworthy?" in order to be able to do this; the very fact that he is offering it for sale and inviting you to drive it is an implied representation that it is roadworthy.

Note, though, that the evidential burden would still be on you to show (a) that the car was not roadworthy, and (b) that this caused the injury to you. If the car had, say, bald tyres but the accident was caused by your speeding and texting at the same time, then you're cactus.

I imagine it would be uncomfortable to claim in front of a judge, that one didn't inspect the vehicle's roadworthyness before driving it.

Peregrinus

Victor wrote: »

I imagine it would be uncomfortable to claim in front of a judge, that one didn't inspect the vehicle's roadworthyness before driving it.

I would have no discomfort at all. I am completely unqualified to assess the roadworthiness of a car. Unless something caught my eye as obviously problematic, I would rely on the dealer's greater familiarity with the car, and greater expertise, and on his interest in avoiding the liablity he would incur for selling a car not fit for purpose. And I think that would be perfectly reasonable.

I go back to the case I mentioned earlier. Anybody looking into the footwell of the car would have seen the polystyrene block under the brake pedal. Nevertheless it was plainly the duty of the dealer not to deliver a car with a polystyrene block wedged under the pedal, and they didn't even attempt to argue that the motorist's failure to notice it amounted to contributory negligence.

Fred Swanson

This post has been deleted.

NUTLEY BOY

Fred Swanson wrote: »

This post has been deleted.

www.irishstatutebook.ie/1961/en/act/pub/0024/sec0056.html#sec56

NUTLEY BOY

Victor wrote: »

SNIP....

I imagine it would be uncomfortable to claim in front of a judge, that one didn't inspect the vehicle's roadworthyness before driving it.

I think that this proposition goes too far. It is unreasonable to expect a lay man to be able to discern this degree of technical adequacy.

What would be uncomfortable in front of a judge would be to appear for a defendant trying to defeat a case on this line of argument.

challengemaster

ken wrote: »

I have 3rd party with Liberty and recently got a new car. I rang them up to see what I could do as I was collecting the car late in the evening after they were closed. The lady told me that nearly all policies have a provision for you to drive other cars as long as,
1.You are insured on a car.
2.The other car is insured by the owner.
3.The car is not in your name.

Basically she told me I was ok to drive it home and sort out the change over the next morning.

That's actually wrong, never trust anything they say over the phone.

The following is from the Liberty policy documentation

If your certificate of insurance says so, we
will also cover you, the policyholder, for
your liability to other people while you are
driving any other private motor car which
you do not own or have not hired under a
hire-purchase or lease agreement, as long
as:
1. the vehicle is not owned by your
employer or hired to them under a
hire-purchase or lease agreement;
2. you currently hold a full European
Union (EU) licence;
3. the use of the vehicle is covered in the
certificate of insurance;
4. cover is not provided by any other
insurance;
5. you have the owner’s permission to
drive the vehicle;
6. the vehicle is in a roadworthy condition;
and
7. you still have the insured vehicle and it
has not been damaged beyond
cost-effective repair.
This extension applies while being driven
within the territorial limits and only to
private passenger vehicles. It does not
include:
• vans;
• car-vans;
• jeep-type vehicles with no seats in the
back; or
• vans adapted to carry passengers

It says nothing about the other car being required to be insured by the owner.

NUTLEY BOY

challengemaster wrote: »

That's actually wrong, never trust anything they say over the phone. SNIP....

Couldn't agree more.

Peregrinus

Fred Swanson wrote: »

This post has been deleted.

Yes there is, as Fred point out. But it's important to realise that, just because the owner can be convicted of this criminal offence, that doesn't mean he has any civil liability to a person injured by the negligence of a driver of the uninsured car. This doesn't entitle the accident victim to sue the owner for damages.

Victor

Peregrinus wrote: »

I would have no discomfort at all. I am completely unqualified to assess the roadworthiness of a car.

NUTLEY BOY wrote: »

I think that this proposition goes too far. It is unreasonable to expect a lay man to be able to discern this degree of technical adequacy.

But aren't all motorists responsible for the vehicles they drive?

Sure, obscurity may be a partial defence to a criminal case, but not to a civil case.

Peregrinus

I don't think there's any rule of strict liability as regards the condition of the car. If you're suing the driver, you're suing him in negligence. You won't recover unless you can show that he is negligent. I don't think that, without special facts, it's negligent for the driver in this instance to rely on the superior knowledge and expertise (both in general, and with regard to this specific car) of the dealer who is offering the car for sale.

Chemical Byrne

Victor wrote: »

But aren't all motorists responsible for the vehicles they drive?

Sure, obscurity may be a partial defence to a criminal case, but not to a civil case.

Yes the driver would be responsible but there is obviously no specific requirement for them to be able to technically audit the vehicle themselves. In the general case they would be fulfilling their responsibility possibly by having their mechanic inspect the car on a periodic basis and rely on his expert knowledge.

In the test drive crash scenario, the driver has relied on the expert knowledge of the dealer and taken his word that the vehicle was roadworthy.

Personally in my opinion, if the test driven car leaves the road with a baldy tyre and it would be reasonable to suggest the tyre was a factor in causing the accident, and there are no obvious additional causes (excessive speed, phone, alcohol etc), then the dealer would be liable.

What defence could the dealer mount? At the end of the day the dealer allowed a customer to drive an unroadworthy car out and it went off the road on a turn on a wet day. Pretty clear cut in my opinion.