Third party claim has led to court action

[vjohn82]

My next door neighbour cannot afford legal representation so has asked me to look into the matter for them.

 

Essentially what happened was that in January my neighbour (Defendant) collided with a parked car on the housing estate we live on. It occurred around 6/7am.

 

The Claimant's car was not occupied but it was parked on the corner. I have attached a picture of the vehicle (number plates removed for privacy) which, even after the incident is continually being parked in contravention of the Highway Code.

 

I would normally scan the claim form but my combo printer is on the blink... so I have typed out the POC here:

 

------------------------------------

 

BRIEF DETAILS OF CLAIM

Compensation for loss, damage and interest arising out of an accident on 13/01/2010 on ######### caused by the negligence of the Defendant.

 

VALUE

The Claimant expects to recover damages of £4xxx.xx as detailed below.

 

Hire charges: £1xxx.xx

Repair costs: £2xxx.xx

Engineer's Fee: £1xx.xx

 

Credit will be given for any interim payment received.

 

PARTICULARS OF CLAIM

1. At all times relevant to this claim, the Claimant was the owner of a motor vehicle registered XXXX XXX and the Defendant was the owner and/or otherwise responsible for a motor vehicle registration mark XXXX XXX.

 

2. On xx/01/10 a collision occurred on XXXXXXXXX involving these vehicles.

 

3. The collision was caused by the negligence of the Defendant in that the Defendant failed to control their vehicle and collided with the Claimants parked vehicle.

 

The Defendant was negligent for:

 

a) Driving too quickly

b) Failing to keep any or proper look out

c) Failing to stop, slow down, swerve or in any way manage to control the motor vehicle so as to avoid the collision

d) Failing to give priority to the Claimant's vehicle

e) Colliding with the Claimant's vehicle

 

4. As a result, the Claimant suffered loss, damage and inconvenience.

 

AND the Claimant claims

 

(1) Damages of £4XXX.XX

(2) Interest pursuant to s.69 of the County Courts Act 1984

(3) Costs

 

(disclaimer: typed up word for word, punctuation etc... private details omitted for privacy and without prejudice to either party)

 

------------------------------------

 

No evidence, witnesses etc are assumed regarding points 3 (a), (b), © or (d). Furthermore the conditions were icy and treacherous but the Defendant chose to drive in those circumstances out of necessity (work). They took every reasonable precaution when driving and took the bend as carefully as possible in the conditions.

 

The vehicle skidded due to the ice and impacted with the illegally parked car.

 

Both cars are fully insured for any third party claim but no reason has been provided by the Claimant/insurers as to why these issues are undergoing litigation etc.

 

Any thoughts???

Edited June 21, 2010 by vjohn82

[DonkeyB]

Isn't this usually called an "accident"?

 

There's no picture by the way.

[DonkeyB]

It's a crappily worded claim. You can't collide with something that isn't moving for a start. And you can't give priority to something that's stationary.

 

I suppose the 'victim' got sympathetic whiplash injuries too!

 

And did he ever give the defendant any chance to put right the damage before having the work done and issuing the claim?

 

He will struggle to prove negilgence in weather conditions like this, and he has provided no evidence of negligence. I'd say it's bound to fail.

[Docman]

VJ,

 

Did your neighbour not notify his own insurers? If he did, he should copy the claim form to them pronto and tell them he will have to acknowledge service.

 

It's a bit quick for an insurance company to issue legal proceedings for a relatively small sum (to insurers). I wouldn't be surprised to find that the claimant wasn't insured or if he was, his insurers have rejected the claim and he has gone to one of the 'ambulance chaser' litigation firms. They could have just issued the N1 claim form in the hope that a defence isn't filed on time and default judgment is given automatically.

[vjohn82]

I will ask him if he notified his insurers but the damage the Claimant is pushing for is quite strange. It was only a cracked numberplate. Of course there could be internal damage but the entire claim looks odd.

 

I'm sure that my neighbour is indemnified against this but he has been taken to court as an individual... not the insurance company for either party who are not paying the claim up.

 

Usually this occurs when the claim is either spurious or they are not insured...

 

Here's the pics of the car as parked last night... still not learning the lesson are they?

 

 

 

Parked right on the corner... approx. 30 feet from their own on site car parking space AND garage. No other cars for the property so there is no excuse for parking like this.

[JonCris]

1st the correct term is incident & not accident as accidents are faultless (acts of GOD) whereas incidents are not

 

2nd even if the car was parked 'illegally' & although your friend might be able to argue contributory negligence (which is doubtful) your friend is still liable

 

3rd The POC is fine & you CAN be in collision with a stationary object

 

4th Your friend hit an unoccupied vehicle & unless they have a strong contributory negligence argument then I'm afraid they are stuffed

 

5th Also as they have 3rd party cover why aren't they handling matters? I do hope they have been informed because as they have not been given an opportunity to defend at the outset, as almost certainly prescribed in their T's&C's, they now have grounds to repudiate liability

[DonkeyB]

Have you checked the bylaws to see if pavement parking is legal there? Did your neighbour get photographs at the time?

[DonkeyB]

3rd The POC is fine & you CAN be in collision with a stationary object

 

Nah. A collision is, by definition, between two moving objects. I'm a pedant, before you ask

[JonCris]

I will ask him if he notified his insurers but the damage the Claimant is pushing for is quite strange. It was only a cracked numberplate. Of course there could be internal damage but the entire claim looks odd.

 

I'm sure that my neighbour is indemnified against this but he has been taken to court as an individual... not the insurance company for either party who are not paying the claim up.

 

Usually this occurs when the claim is either spurious or they are not insured...

 

Here's the pics of the car as parked last night... still not learning the lesson are they?

 

 

 

Parked right on the corner... approx. 30 feet from their own on site car parking space AND garage. No other cars for the property so there is no excuse for parking like this.

 

Parking or not snow & ice or not your friend IS liable & yes proceedings are always issued in the name of the individual. The only difference is that they are often sent direct to their elected representative such as lawyer or insurer so the defendant seldom sees them or even know they have been issued until told by their own reps

[JonCris]

Nah. A collision is, by definition, between two moving objects. I'm a pedant, before you ask

 

 

your wrong only ONE object needs to be moving;)

[JonCris]

Have you checked the bylaws to see if pavement parking is legal there? Did your neighbour get photographs at the time?

 

Irrelevant. Just because a vehicle is parked 'illegally' does not mean you can hit it with impunity your still as liable as if it was parked lawfully

[DonkeyB]

The claimant is trying to prove negligence by unsubstantiated facts, with no witnesses. He cannot possibly state the car was going too fast, for example. What has your friend said about this so far? Has he in any way admitted liability to the claimant?

 

I agree with JC, contributory negligence would be a tough one to prove, though would almost certainly be looked at by an insurance company.

 

The only causation I can legitimately see here is that your friend was negligent by driving on an icy road. He could equally claim the council was negligent for not gritting the road.

 

But the reasons given for negligence, IMO, fall well outside any provable facts - or even to the level of likelihood, as a small claim would require.

 

Also, what evidence has the claimant provided that a broken number plate resulted in £4k of damages and repairs? He has to make an 'unbroken connection' between the need for these costs and your friend's alleged negligence.

 

Sounds like a bit of very sloppy ambulance chasing to me.

[JonCris]

PS you will have noticed the police have stopped referring to 'accidents' they now call them all 'incidents' & their investigators are now 'crash' investigators, although some habits do die hard & you occasionally hear an incident referred to as an 'accident'

[JonCris]

There is NO contrib there was no one in or near the 3rd parties vehicle & the parking argument to try & mitigate liability is a none starter. The 3rd party will argue illegally parked or not it was there to be seen & they still hit it. In fact they'll probably argue that they parked there on a regular basis so the 1st party will have been aware of their presence & should have acted accordingly. Also the 1st party appears to have admitted that it was he/she who collided with the 3rd party

 

As for the highways being negligent, unlike Scotland where there is a binding duty to salt the roads there is no such duty in England other than a normal duty of care which as we have recently seen is governed by social policy. In other-words the councils say "can we afford it & if not tough"

 

Apart from arguing quantum this appears to be a slam dunk for the claimant

[JonCris]

The POC is fine as you always list all of the possible causes of the accident & speeding simply means excessive speed for the conditions as evidenced by their colliding with the vehicle & not that they were speeding generally

[JonCris]

As for witness evidence that's not needed if the 1st party admitted colliding with the parked vehicle As I state the ONLY thing left to dispute is the damages which they must quantify if they are to succeed in recovering their losses

 

An original quote & invoice plus an inspection report should be available demand copies

 

If they haven't been provided & assuming the claim has been acknowledged within 14 days respond to their NI in the defence section by stating the following "I regret that because of the claimants failure to particularize their claim in detail I am embarrassed and unable to plead"

Edited June 21, 2010 by JonCris

[JonCris]

Just quoting the losses in the POC without supporting docs isn't enough

 

Also if they do as they almost certainly will produce invoices etc check them out contact the firms & make sure they know that the invoice WILL be submitted to the Vat man for a rebate & if they say they'll knock the vat off the invoice will almost certainly be phony, made up. Armed with that info do with it what you will cos if false its not just fraud its money laundering

Edited June 21, 2010 by JonCris

[DonkeyB]

JC, you sure know your stuff

[JonCris]

The claimant is trying to prove negligence by unsubstantiated facts, with no witnesses. He cannot possibly state the car was going too fast, for example. What has your friend said about this so far? Has he in any way admitted liability to the claimant?

 

I agree with JC, contributory negligence would be a tough one to prove, though would almost certainly be looked at by an insurance company.

 

The only causation I can legitimately see here is that your friend was negligent by driving on an icy road. He could equally claim the council was negligent for not gritting the road.

 

But the reasons given for negligence, IMO, fall well outside any provable facts - or even to the level of likelihood, as a small claim would require.

 

Also, what evidence has the claimant provided that a broken number plate resulted in £4k of damages and repairs? He has to make an 'unbroken connection' between the need for these costs and your friend's alleged negligence.

 

Sounds like a bit of very sloppy ambulance chasing to me.

 

You'll be amazed at the forces unleashed even what appear to be the mildest of accidents Eg if you strike an immovable object such as a tree at 15mph the front of the car stops dead whilst the rear continues at 15mph (hence the concertina effect) Gathering momentum your body, as it has bulk, pitches forward with the weight of a very large 2-3 ton elephant. Your feet come out of their tightly laced shoes/trainers/boots (you will often see the odd piece of footwear laying forlornly at the roadside)

 

Driving a modern car your chest should be saved by the airbag although if your little & sitting to close it can kill you

 

Your head, being the heaviest limb, snaps forward then back & whether the collision is from the front or the rear the damage is caused by the forward pitching of the neck when the vertebra & surrounding muscles are stretched into an unusual position before snapping back causing what is commonly known as whiplash which despite a popular myth perpetrated by the insurance industry can be so severe as to cause long term disability. By long term I don't mean wheelchair disability I mean constant pain & discomfort for many years ahead but because it's not visible & people tend not to advertise their condition the condition goes on unheeded & worst of all misunderstood

[vjohn82]

I disagree that my friend is "stuffed";

 

Custins v Nottingham Corporation and Another Court of Appeal 16 April 1969

[1970] R.T.R. 365

 

"It is common knowledge that if you are unlucky when you are driving on an icy road, whatever care you may take, it sometimes by mischance occurs that the vehicle does slide and gets out of control. In these circumstances, it does not mean that there is any negligence on the part of the driver so that he can be blamed in any way for the bus thus getting out of control."

 

I have attached the case to this post.

 

So on that basis, in the absence of any other evidence/precedent, negligence CANNOT be inferred in this case. Furthermore there is advice that driving in icy conditions carries additional risk but necessary journeys are permitted assuming the drivers takes extra care.

 

Going around a corner and then hitting a car which was illegally parked, whether the Claimant owed a duty of care to other road users or not, still does not mean that the Defendant was negligent.

 

Look at the list from 3 (a) to (d) - how can those points be in any way valid when they all require evidence/eyewitness account. They are pretty serious allegations, would you all not agree? The POC is poor in this regard.

[vjohn82]

Here is the case

Custins v Nottingham - Icy conditions court of appeal.pdf

[vjohn82]

I was always under the impression you could only be found in favour of in court on the evidence provided. If you submit an unsubstantiated case to the court the Defendant can defend on that basis and have it struck out.

 

The Claimant in this case is making the allegation that their losses were caused by the negligent actions by the Defendant; without any evidence for that negligence and with the High Court already ruling that negligence cannot be inferred automatically I would say the case the Claimant has brought is spurious at best.

 

Their claim would have made more sense had they simply stated that the cars were involved in an incident which cause losses to the Claimant.

 

My neighbour is on the phone to his insurance company now to find out why it has not been sorted on a third party basis.

[JonCris]

As there are no actual witnesses yet the 1st party has admitted the collision the 3rd party can & will claim res ipsa loquitur.

 

Also he can & should cite all of the reasons he believes will have contributed to the incident

 

And yes the courts do allow for skidding in snow as being accidental However the 1st party had a choice to drive or not to drive but chose to drive knowing the condition of the roads whereas the 3rd party didn't.

 

IMHO had both parties been driving I think that neither would be held liable as they had both chosen to take a risk but they both hadn't only one did

[JonCris]

I was always under the impression you could only be found in favour of in court on the evidence provided. If you submit an unsubstantiated case to the court the Defendant can defend on that basis and have it struck out.

 

The Claimant in this case is making the allegation that their losses were caused by the negligent actions by the Defendant; without any evidence for that negligence and with the High Court already ruling that negligence cannot be inferred automatically I would say the case the Claimant has brought is spurious at best.

 

Their claim would have made more sense had they simply stated that the cars were involved in an incident which cause losses to the Claimant.

 

My neighbour is on the phone to his insurance company now to find out why it has not been sorted on a third party basis.

 

If your friends insurer is acting & they have sent the claim direct them that means that either your friends insurer or their appointed solicitors has told them too

 

As for the POC you will see that all of claims they make such as not steering away, traveling to fast for the conditions, not being in control etc will all have occurred otherwise there would not have not been an incident

[vjohn82]

As there are no actual witnesses yet the 1st party has admitted the collision the 3rd party can & will claim res ipsa loquitur.

 

Also he can & should cite all of the reasons he believes will have contributed to the incident

 

And yes the courts do allow for skidding in snow as being accidental However the 1st party had a choice to drive or not to drive but chose to drive knowing the condition of the roads whereas the 3rd party didn't.

 

IMHO had both parties been driving I think that neither would be held liable as they had both chosen to take a risk but they both hadn't only one did

 

No-one disputes the Defendant's car ran into the Claimant's. The Defendant did have a choice to drive but how else would he have gotten to work 20+ miles away? The driving was a necessity.

 

In the case I provided the company had a choice whether to send the drivers out; they did so and the driver was not found negligent. If someone can point me towards another case which would shed light on negligence then please do so. I have not found any so far.

 

The Defendant does NOT dispute running into the car; he disputes that he was negligent which is what this claim IS for. It's a simple accident caused by the conditions. The Defendant's does not dispute being liable but he disputes negligence as a contributory factor to the Claimant's case.

 

The POC is poorly worded for the case they want to present because that have to PROVE the POC. If you can demonstrate how they can prove that has going too fast, not steering away, not keeping a look out etc then you are smarter than me because without witnesses to prove such allegations then they are simply that; allegations.

 

As for the POC you will see that all of claims they make such as not steering away, traveling to fast for the conditions, not being in control etc will all have occurred otherwise there would not have not been an incident

 

Would you seriously suggest that not steering away was a negligent act in this case if such steering would have no effect on the trajectory of the car? Not being in control, during any type of skid, is a given. As for going "too fast", there is absolutely no guidance anywhere within any regulations or legislation which stipulates how fast a car must be going on ice to be "too fast for the conditions".

 

The POC is making blind accusations and presenting them as fact when they have no evidence to prove them.

 

Anyway, this has been a good exercise but the insurers have stated they will be handling it for my mate from here on.