Car Accident Claims - Burden of proof

[Penfold92]

I wonder if anyone can confirm this for me please?

 

I read somewhere that in Motor Accident claims the burden of proof rests with the defendant NOT the claimant as in normal county court claims, is this correct? If so can anyone point me to the legistation that confirms this?

 

Thanks,

 

Penfold

[flyingdoc]

The burden of proof in any case is with the CLAIMANT - "innocent until proven guilty" but the burden is less than in criminal cases, being "on balance of probabilities" rather than "beyond reasonable doubt".

 

There are occasions where it may appear that the defendant may have to prove innocence such as if they run into the rear of another vehicle, they might have to prove that they were caused to swerve into that lane by another car, but on the whole the principle above should apply.

[Penfold92]

Thanks for that swift response, the reason I ask is my insurance company has settled a claim against me on the basis of "commercial" sense with no liability.

 

I am very cross at this as the claimant had no proof whatsoever as to who was at fault and further to that was claiming an extortionate amount for car hire! £8000 for 6 months even though her car was not out of action for that period of time. I just cannot get my head round it and thought perhalps the burden of proof was reversed in these cases.

 

I will be pursuing them myself for loss of income now due to my car also being out of action and see what they do as this is ridiculous, no wonder all our premiums go up every year!

 

So no case law that says the defendant must proof he/ she did not cause the accident then?

 

Thanks,

 

Penfold

[flyingdoc]

I am not a solicitor, but with certain exceptions (and this is not one of them) it is always upto the plaintiff or claimant to prove their case agains the defendant.

 

As I said earlier, there may be circumstances where there is a general acceptance that the defendant is liable, such as a rear end collision, where the burden of proof would fall on the defendant to prove his innocence but in general that is not the case.

 

Without knowing the precise circumstances it is difficult to advise but in tort the general routine is that the claimant has to prove the following.

 

1 that the defendant owed a duty of care both in law and in the facts of the case

2 that the defendant breached that duty of care.

3 that the breach caused the claimant forseeable losses

4 and that losses were not too remote from the breach.

[gyzmo]

Is this an appeal? There is a phrase : "He who accuses must prove".

 

If I say to you "You robbed me of £50 and I want it back", it is for me to prove that, and not for you to prove that you did not rob me (generally on the basis that you cannot prove a negative).

 

If we are referring to you making a claim on your policy, it is for you, the insured, to prove to your insurer that the damage was caused in the way that you say it was and is covered under the policy.

 

Where such damage alleged to be caused by a third party, then it is for your insurer to prove that outlined above by flying doc and to claim from the third party (or their insurer). Lets say that the third party loses, but is actually innocent. He appeals. It is for him them to prove his case.

 

It gets even more muddled, so I will not o any further, but I hope this and the above covers the query.

[Penfold92]

Thanks Flyingdoc and Gyzmo, but not really...

 

It was a roundabout accident and due to the fact we knew the third party (our children are in teh same class) we did not push fault and were content to allow a 50:50 to go through. But a few months down the line the third party was claiming it was my wife's fault and £8k in car hire charges as well as their excess back too!

 

How is it "commercial" sense to settle when we said this was not the case and happy to attend court as witnesses and for the thrid party to prove the fault was my wife's? Now they have settled it paying her claim and we are still being added as partially at fault through the 50:50. Is this not having your cake and eating it for the third party?

 

Why can we not make a similar claim against her and Direct Line (they are the insurers for both of us) for distress and loss of income through not having the car for a period of time?

 

All I am saying is the system is unfair, if the third party wanted to go to court to PROVE fault then I do not see why this was not allowed as there were no witnesses and the damage to the cars looks more against the third party than my wife.

[flyingdoc]

It sounds here like you have shot yourselves in the foot.

 

If you have allowed a 50:50 to go through then you have accepted 50% of the blame.

 

Having done that you are now responsible for 50% of the total losses as a result of the accident, and since their losses were greater than yours (in that they hired a car) you have to pay towards it.

 

I dont understand why you would do this.

 

What were the circumstances of the accident?

[Penfold92]

Ok I will try to explain...

 

Wife left work and approached roundabout, left lane goes left and straight, but as is also main road to M1 was backed up and stationary. Middle lane goes straight and wife in that lane going straight. Right lane goes right and thrid party in that lane.

 

Wife in a Clio and third party Lexus 4X4. Wife exits and goes straight Right lane also does and then cuts in front and takes the front right corner of car out and continues going straight and comes to a stop after dragging our car along with it in the straight exit.

 

So firstly, we never accepted any liability on speaking to DL they said "roundabout no witnesses will be 50:50". We said, under the circumstances and children in mind not happy but will accept it to bring it to a close.

 

After this third party instructed sols and continued action against my wife via DL saying she was negligent etc. As soon as we heard this we told DL's sols (supposed to be acting on our behalf) that we dispute this and in facts the set up of the roundabout and actions of the third party do not suggest they were ever going right and in fact cut in front of our car. That being so we want them to issue a counter claim and we will see the third party in court.

 

DL's solicitors after nearly a year wrote to say commercial reasons settling the claim IN FULL and still going back to 50:50 with no admission of liability. We do not feel our interests have been put forward and the third party has had a pay out when they were actually at fault. I asked several times what proof they were supplying and the sols never came up with anything, I even said Claimant surely has to prove this and he said "in our experience the judges go with the claimant!"

 

Now being on this site I cannot believe that for a minute and just am shocked that the third party has got away with this sort of payout and we are not being allowed to defend ourselves as we also suffered in this, but tried to be dimplomatic from the start.

 

I guess I should just leave it, but I feel upset that this is the way it happened. If it went to court and the judge agreed I would have to accept it, but on what basis I cannot see...Also the DL terms clearly say, even with Car hire plus, the max payout would be £500 for 21 days. Firstly, I saw the car around school pretty soon after the accident so it was not our of action that long and secondly do these insurance companies not query these sorts of amounts? What was hired a ferrari?

[Penfold92]

Should add damage was front bumper ripped off from front right corner, no side damage whatsoever to our car, third party front left and ALL down the side...So think physics now guys and girls...if our car hit them then momentum would suggest our car (being smaller and lighter) would turn and we would then hit side on side....If bigger car hit front right and their momentum is stronger (which it would be) they would continue through and rip the front bumper off and have side damage...

[flyingdoc]

First of all the car hire that is stated on your policy I suspect would be the amount that DL would pay for YOU to hire a car in the event that your car was out of action following an accident (that you were responsible for).

 

It sounds very much like you have been stitched up by the other party and DL here.

 

DL, as a cost saving exercise wil always take the path of least resistance, and since they are BOTH your insurers they do not want to incur any legal charges.

 

Since the 3rd party seems to have put in claims for Hire car amongst other things, and you appear to have been reasonable - It would seem they have the opinion that they just quietly pay the claims, and you will not kick up a fuss.

 

At this stage I dont see how you can benefit from kicking up a fuss anyway, any loss of NCB will still apply.

 

For future reference - NEVER let your insurance company dictate your legal representation (dont even bother paying for legal expense cover - it is not worth it) always instruct an independant solicitor (especially if Personal Injury has occurred).

 

I have to say i would put this episode down to experience.

[Penfold92]

Well I have written to them, but in the end will prob agree with you on this one.