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Article · 10 min read
Hit by a driver on their phone: whose fault and what next?
Hit by a driver using a handheld phone? Here is who is at fault, how to prove it, and how recovery, storage and a replacement car or van are handled.
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E-E-A-T
Quick answer
If another driver ran into you while holding a mobile phone, the short answer is that liability is very likely to sit with them, and you should not accept any suggestion that this is a 50/50 or just one of those things. Holding a phone while driving is not a grey area in British law. It is a specific offence under regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986, prosecuted under section 41D of the Road Traffic Act 1988, and since 25 March 2022 it covers almost any handheld use, not just calls and texts. A driver looking at a screen is not looking at you.
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Hit by a driver on their phone: whose fault and what next?
If another driver ran into you while holding a mobile phone, the short answer is that liability is very likely to sit with them, and you should not accept any suggestion that this is a 50/50 or just one of those things. Holding a phone while driving is not a grey area in British law. It is a specific offence under regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986, prosecuted under section 41D of the Road Traffic Act 1988, and since 25 March 2022 it covers almost any handheld use, not just calls and texts. A driver looking at a screen is not looking at you.
What matters in the next hour is evidence, not argument. Get the other driver's name, address, vehicle registration and insurer, which they are required to give you under section 170 of the Road Traffic Act 1988. Photograph the scene before the vehicles are moved, including the phone if it is still visible in their hand, on their lap or loose on the dash. Take the names and mobile numbers of anyone who stopped. If you have a dashcam, stop the recording and lock or save the file straight away, because loop recording will overwrite it. Report the collision to the police and get a reference number.
You do not have to prove the phone use in order to be paid out, and that is worth understanding early, because a lot of people talk themselves out of a strong claim by worrying they cannot prove it. In a rear-end shunt, or where a driver emerged from a junction into you, the negligence is established by the manoeuvre itself. What the phone evidence does is different and still valuable: it removes the room an insurer has to argue that you contributed to your own loss. The rest of this guide explains how that works, and how the claim runs from there.
Whose fault is it if the other driver was on their phone?
The civil test is negligence: did the driver fall below the standard of a reasonably competent driver, and did that failure cause your loss. A driver holding a phone has, by definition, taken a hand off the wheel and attention off the road. Highway Code rule 148 says safe driving and riding needs concentration and that distractions should be avoided. Rule 149 goes further and uses the mandatory MUST NOT wording for handheld phones, citing sections 2 and 3 of the Road Traffic Act 1988 and regulations 104 and 110 of the Construction and Use Regulations. Where the Highway Code uses MUST or MUST NOT, it is restating actual law rather than offering advice.
That distinction matters, because a breach of the Highway Code can be relied on in civil proceedings to help establish liability. But the phone is usually the explanation rather than the legal foundation. If they hit you from behind, drifted into your lane, went through a red light or emerged from a side road, the collision itself is the breach of duty. The phone tells the story of why it happened, and it makes the account far harder to dispute. Insurers tend to settle faster when one narrative is coherent and the alternative version sounds implausible on its face.
One caution. Liability is decided on evidence, not on how obvious it feels at the scene, and nobody can honestly promise you an outcome before the facts are gathered. Any firm that does is not being straight with you. What you can do is protect the evidence that makes the outcome predictable, and start the claim in the right order, so that your vehicle, your income and your no-claims position are not the things that quietly suffer while two insurers argue about who pays for what.
DETAIL
03
Section 3 of the walkthrough.
What law does using a phone at the wheel actually break?
The offence sits in regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986. It prohibits driving a motor vehicle on a road while using a handheld mobile telephone, or a handheld device of a specified kind. The definition of handheld is deliberately simple: a device is handheld if it is, or must be, held at some point while being used. The prosecuting provision is section 41D of the Road Traffic Act 1988, which makes it an offence to contravene construction and use requirements about proper control of a vehicle and about handheld phones, and which also covers causing or permitting another person to do so.
The rules were tightened by the Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022, SI 2022/81, in force from 25 March 2022. Before that date, a driver could argue they were not performing an interactive communication function, which is how some phone cases were successfully defended. That gap has been closed. Using now expressly covers illuminating the screen, checking the time, checking notifications, unlocking the device, making, receiving or rejecting a call, sending, receiving or uploading content, opening an application and accessing the internet. Scrolling a playlist or taking a photo of a traffic queue counts.
There are narrow exemptions and none of them help a driver who was scrolling in moving traffic. A genuine 999 or 112 call is permitted where it is unsafe or impracticable to stop. Remote-controlled parking is allowed within tight conditions, including the device remaining within six metres of the vehicle. A contactless payment is permitted while the vehicle is stationary, where the goods or services are received at the same time as, or after, the payment is made. A further exception covering certain emergency service push-to-talk devices was added on 25 November 2024.
Illuminating the screen or checking the time
Checking notifications or unlocking the device
Making, receiving or rejecting a call
Sending, receiving or uploading any content
Opening an application or accessing the internet
Taking a photograph or video, or hand-changing a track
What penalty do they face, and does a conviction help my claim?
The fixed penalty is six penalty points and a £200 fine. If the case goes before a court, the maximum fine is £1,000, rising to £2,500 for drivers of goods vehicles and passenger-carrying vehicles, with discretionary disqualification. Six points is deliberately heavy. A driver who collects two of these offences within three years is facing a totting-up ban, and a driver who passed their test within the previous two years loses their licence on a single conviction. There is also a lesser three-point offence where a driver does not have proper control of the vehicle or a full view of the road and traffic ahead.
A conviction is genuinely useful in the civil claim, and not simply as background colour. Section 11 of the Civil Evidence Act 1968 makes a conviction admissible in civil proceedings to prove that the person committed the offence, and once the conviction is proved, they are taken to have committed it unless the contrary is proved. The burden flips. The at-fault driver's insurer then has to positively disprove the phone use, which is close to impossible once a court has already found it. Careless driving carries three to nine points and an unlimited fine; dangerous driving carries obligatory disqualification and up to two years' imprisonment.
Do not wait for the criminal outcome before starting your claim. Prosecutions can take many months and the civil claim runs on its own timetable regardless. Your vehicle needs recovering and storing now, and you need something to drive now. A later conviction strengthens a claim that is already running, which is the right order to do things in. It is also worth knowing that the criminal standard of proof is higher than the civil one, so a decision not to prosecute does not mean your civil claim is in trouble.
How do I prove they were on their phone if they deny it?
Assume the denial. Almost nobody admits it, and the phone is usually face down in a pocket by the time anyone reaches the window. Proof is built from several ordinary sources rather than one dramatic one. The strongest is video: your own dashcam, a following vehicle's dashcam, a bus or lorry camera, a shop or doorbell camera, or a council CCTV camera covering a junction. Private CCTV is usually overwritten within days or a couple of weeks, so a polite request made in person on the same day is worth far more than a letter sent a fortnight later.
Independent witnesses matter more than most people assume, and they are lost within minutes if nobody takes a number. Ask anyone who stopped what they actually saw, and be specific: was the driver looking down, was a screen lit, did the car drift before impact, did the driver react at all before hitting you. Ask them to write it down or send you a voice note the same day while it is fresh in their mind. A pedestrian, a passenger in the other car or the driver behind you can each give evidence an insurer cannot simply wave away.
Then there is behaviour at the scene, which is evidence in its own right. No braking before impact, no skid marks, a collision at close to full road speed into stationary traffic, a driver who says they did not see you or that you stopped suddenly, a lit screen in the footwell, a call still connected when you reached the window. Photograph what you can see through their windscreen before anyone tidies up, without reaching into their vehicle. Note the exact time of the collision to the minute, because that timestamp anchors every other piece of evidence later.
Save and lock your dashcam file immediately, then copy it off the memory card
Photograph the phone in the other vehicle if it is visible from outside
Take names and mobile numbers for every witness, including passengers
Note the exact time, the weather, the light and the road surface
Ask nearby shops and homes about CCTV the same day, not next week
Write your own account out in full before you sleep on it
06DETAILKey takeaway
Should I call the police, and will they investigate the phone?
Yes, report it, and do it promptly. Section 170 of the Road Traffic Act 1988 requires a driver involved in a collision causing injury, or damage to another vehicle, animal or property, to stop and to give their name and address, the owner's name and address and the identification marks of the vehicle. Where those details are not given at the scene, the collision must be reported to the police as soon as is reasonably practicable and in any case within twenty-four hours. Getting a police reference number costs you nothing and creates a timestamped, contemporaneous record.
Whether officers pursue the phone depends on the seriousness of the collision and on what you tell them when you report. Say plainly that you believe the driver was using a handheld phone and ask for that to be recorded. Police can seize a phone where there are reasonable grounds to believe it is evidence relating to an offence, and in serious cases they can seek communications data from network operators under the framework in the Investigatory Powers Act 2016, which is available to specified public authorities. Section 172 of the Road Traffic Act 1988 also lets police require a vehicle's keeper to identify the driver.
If you captured footage, submit it through the National Dash Cam Safety Portal, which routes video to the relevant force and is used for exactly these offences, including handheld phone use, careless driving and driving without due care and attention. Separately, a police collision report can usually be requested later for a fee, though timescales and charges vary considerably between forces and can run to several weeks. That makes it a useful corroborating document once a claim is under way, but never a substitute for gathering your own evidence in the first forty-eight hours.
Can I get hold of their phone records?
This is the question almost everyone asks, and the honest answer is that it is possible but not straightforward, and it is rarely the thing that decides a claim. As a private individual you cannot obtain another person's call and data records directly. The communications data regime under the Investigatory Powers Act 2016 was built for police and other specified public authorities listed in that Act, not for claimants or the companies acting for them. A data subject access request will only ever get you your own personal data, never the other driver's, so that route is a dead end.
In civil proceedings there is a route, and it is worth knowing about even if you never use it. A court can order disclosure by a person who is not a party to the claim, under rule 31.17 of the Civil Procedure Rules. The applicant has to show that the documents are likely to support their own case or adversely affect another party's case, and that disclosure is necessary in order to dispose fairly of the claim or to save costs. In practice, such orders are the exception rather than the rule, they cost money, and they only arise once proceedings have been issued.
So treat phone records as a backstop rather than a plan. The realistic sequence runs the other way round: strong video and witness evidence resolves most cases without anyone needing records at all; police involvement is what unlocks records in the serious cases; and if the other driver is prosecuted and convicted, section 11 of the Civil Evidence Act 1968 does the heavy lifting for you anyway. Where a claim is genuinely being fought on the distraction point, that is the moment to take specialist legal advice on whether an application would be proportionate.
What if they say I braked too hard, was speeding or pulled out?
This is the standard counter-move, and it is usually aimed at contributory negligence rather than at defeating liability outright. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, where you are partly responsible for the damage your claim is not defeated, but damages are reduced to such extent as the court thinks just and equitable having regard to your share in the responsibility. An insurer that cannot win on liability will very often try to shave a percentage off instead, by suggesting you did something careless in the moments before impact.
Phone evidence is the cleanest way to shut that argument down. If a driver was looking at a screen, the suggestion that you stopped too suddenly falls apart, because the real question becomes whether they were in any position to respond to anything at all. Highway Code rule 126 says never to get closer than the overall stopping distance, and to allow at least a two-second gap on faster roads and in tunnels, doubled on wet roads and increased further on ice. A driver who could not stop was either too close, too fast for the conditions, or not looking.
The same logic applies at junctions. Rule 172 says drivers MUST give way to traffic on the main road when emerging from a junction with broken white lines across it, and rule 170 requires them to give way to pedestrians crossing or waiting to cross a road they are turning into or out of. Rule 125 says speed should be reduced where the road layout or condition presents hazards. Keep your own conduct clean too: do not guess your speed, do not speculate about theirs, and stick strictly to what you actually saw and did.
DETAIL
09
Section 9 of the walkthrough.
Do I have to prove distraction to win the claim?
No, and this is the single most reassuring point to take away. Negligence is established by the driving, not by the reason behind it. In a rear-end collision, the practical burden falls on the following driver to explain how the collision happened without fault on their part, because the basic duty is to drive at a distance and a speed that allows you to stop safely in the space you can see to be clear. The same is true where a driver emerged from a side road, changed lanes into occupied space, or turned across your path.
What the phone evidence does is defensive rather than foundational. It defeats contributory negligence arguments, it undermines any suggestion that you behaved unpredictably, and it makes an insurer's cost-benefit calculation on fighting the claim look distinctly poor. It also tends to accelerate matters, because an insurer that can see a conviction coming has very little to gain from a drawn-out dispute. Gather that evidence wherever you can, but do not delay starting your claim because you are waiting for perfect proof of what was on somebody else's screen.
What happens next, and will I be left without a vehicle?
This is where accident management differs from simply telephoning your own insurer and waiting. If your car or van is not driveable, the first step is recovery from the scene, or from wherever it has ended up, followed by secure storage rather than a kerbside space or a police pound quietly running up daily charges. An engineer's inspection then establishes whether the vehicle is economically repairable or a total loss, and produces an independent report that the at-fault insurer has to engage with properly. Repairs are then coordinated with an approved repairer, with the vehicle documented throughout.
Alongside that, and subject to liability being clear and to eligibility checks, a like-for-like replacement car or van is arranged so you can keep working and keep your life running. The cost is presented to the at-fault driver's insurer as part of your losses and recovered from them. It is not charged to you. That is the whole point of the arrangement: an innocent driver should not have to fund a replacement out of their own pocket while somebody else's insurer takes its time. The courts have long recognised a genuine need for a replacement vehicle as a recoverable loss, while also expecting claimants to act reasonably and keep losses down.
CityGrip then handles correspondence with the third-party insurer, so you are not fielding calls from an adjuster whose job is to reduce what you end up with. That covers liability, the engineer's findings, recovery and storage charges, the replacement vehicle and your out-of-pocket losses. CityGrip does not handle personal injury in-house. If you have been hurt, that side is referred to an authorised legal partner, and only with your separate written consent. Nothing is signed on the injury side without you agreeing to it in clear terms first.
Recovery from the scene and secure storage, not a pound charging by the day
Independent engineer's inspection and written report
Repair coordination with an approved repairer
Like-for-like replacement car or van, subject to liability and eligibility
Direct correspondence with the at-fault insurer on your behalf
Injury enquiries referred to authorised legal partners, only with separate written consent
What if they drove off, or turn out to have no insurance?
If the other driver failed to stop, then a partial registration, the make, model and colour, the direction of travel and the exact time all matter, and so does anything a witness happened to notice. Report it to the police immediately. Where a driver cannot be traced, or is traced but has no valid insurance, the Motor Insurers' Bureau exists to deal with those situations through the Uninsured Drivers Agreement 2015 and the Untraced Drivers Agreement 2017. Those agreements carry conditions, including prompt reporting to the police, and an excess applies to property damage claims.
Time limits and conditions under the MIB agreements are tighter and more technical than an ordinary claim against an insured driver, so this is not a route to explore at a leisurely pace. Private hire and PCO drivers should also check that the other vehicle's cover actually matched the use it was being put to, because a policy that does not cover the real use can leave a claim being handled very differently. Get the registration checked early rather than assuming a driver waving an insurance app at the roadside has settled the question.
12DETAILKey takeaway
How long do I have to make a claim?
For injury, section 11 of the Limitation Act 1980 allows three years, running from the date the cause of action accrued or the date of knowledge if that is later. Claims for damage to your vehicle and the consequential losses that flow from it are generally subject to a longer period of six years. Different and much shorter conditions apply to claims routed through the Motor Insurers' Bureau. All of those are outside limits rather than targets, and treating an outside limit as a target is how people with strong claims end up with nothing.
The practical deadline is far shorter than any of those figures suggest. Private CCTV is overwritten within days. Dashcam loops overwrite themselves within hours. Witnesses move house, mobile numbers change, and honest memories become genuinely unreliable within a few weeks. Storage charges accumulate quietly while a damaged vehicle sits somewhere nobody has decided about. If a claim is started within the first day or two, evidence gets preserved, the vehicle gets moved somewhere sensible, and a replacement vehicle can be arranged before your work is affected. Speed here is not pressure, it is simply what survives.
Take action
If you have just been in a non-fault collision, the fastest way to protect your claim is to open the file with us inside the first hour. We dispatch recovery, lodge the relevant CCTV requests inside the retention window, and notify the third-party insurer for you.
We do not provide legal advice. This article is general guidance for UK drivers. Personal injury enquiries are referred only with your consent to authorised legal or regulated partners. Specific limits, retention windows and process steps may change; the position at the date of any individual collision will govern the handling of that claim.
Frequently asked questions
- Is it illegal to use a hands-free phone while driving in the UK?
- Hands-free use is not caught by regulation 110, which targets handheld devices, but it is not a free pass either. There is a separate three-point offence where a driver does not have proper control of the vehicle or a full view of the road and traffic ahead, and a badly positioned cradle or screen can trigger it. If a hands-free call distracted a driver so much that they drove carelessly, they can still be prosecuted for careless driving, and in a civil claim that distraction remains evidence of falling below the standard of a competent driver.
- The other driver admitted at the scene they were on their phone. Is that enough?
- It helps considerably, but write it down immediately with the exact wording, the time, and the names of anyone else who heard it, because admissions made at the roadside are routinely withdrawn once an insurer becomes involved. If a witness heard it, take their contact details and ask them to confirm it in writing the same day. If your dashcam records audio, it may already have captured it. A scene admission is not binding on its own, but combined with the physical evidence and the mechanics of the collision it becomes very hard for an insurer to displace.
- Will claiming affect my no-claims discount if the collision was not my fault?
- Where liability is established against the other driver and their insurer meets the costs, a genuinely non-fault claim should not reduce your no-claims discount. Problems arise when a claim ends up recorded as fault because the other insurer never accepted liability, or because your own insurer could not recover what it paid out. That is exactly why the evidence and the early handling matter so much, and why having correspondence with the at-fault insurer conducted properly on your behalf is worth considerably more than it appears at the outset.
- Can I claim if I am a private hire or PCO driver and the car is my livelihood?
- Yes. CityGrip works with car and van drivers, including private hire, PCO and minicab drivers, and a like-for-like replacement car or van can be arranged subject to liability and eligibility so you can keep working. Loss of earnings while you are off the road can form part of the losses presented to the at-fault insurer, supported by evidence of your normal income. CityGrip does not cover hackney carriage or black cab work, and does not act for HGV, lorry, bus or coach drivers.
- Does the courtesy car cost me anything?
- Where liability is clear and you meet the eligibility criteria, the replacement car or van is provided at no cost to you, and the charge is recovered from the at-fault driver's insurer as part of your claim. You are not renting a vehicle and you are not paying for it. What is expected of you is reasonable conduct: keep the vehicle only for as long as you genuinely need it, tell us promptly once your own vehicle is repaired or settled, and keep a record of your use of it.
- What if I did not report the collision to the police at the time?
- Report it as soon as you realise. Where details were not exchanged at the scene, section 170 of the Road Traffic Act 1988 requires a report as soon as is reasonably practicable and in any case within twenty-four hours. Even outside that window, a late report still creates a record and a reference number. It is far more important to preserve footage, secure witness details and start the claim than to conclude that a missed report has sunk it, because most claims turn on civil evidence rather than on a police file.
- Can I still claim if the police decide not to prosecute the other driver?
- Yes. The criminal standard of proof, beyond reasonable doubt, is higher than the civil standard, which is the balance of probabilities, so a decision not to prosecute does not mean your civil claim fails. Police also make charging decisions on resource and public interest grounds that have nothing to do with whether a driver was negligent. A conviction would give you the benefit of section 11 of the Civil Evidence Act 1968, but its absence simply leaves you proving your case in the ordinary way, on the evidence.
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