Help - really worried about RTA Claim

[mexy71]

hi, can anybody independantly advise me on what may happen re: my car accident.

i was driving down a major road (which i live of) which was recently resurfaced and had signs indicated 'access only'. A driver pulles out of the side road as her view was blocked by a contracters van and drives side on into me....she said she never saw me and admitted responsiblity....everything was going ok with the claim - insurance co said she was liable. Now the other driver has now got her own solicitor to take on the insurance company because she is saying that she wasnt all her fault. She now says says i was speeding (which was not true) and wants to say that it was 50/ 50 blame 5 weeks after the accident...where do i stand. she cannot prove i was speeding (because i wasnt) she is just trying to get out of it ... she has photos of the road and the obstrustion but that is not my fault!

Can the insurers decide a 50/50 - NB we are withthe same insurance co!

[SharpmanTF1]

How can she say it's not all her fault.? You were on the main road, she was coming out of a side road. I'm sure that side road had a give way sign of some sort. obstruction to view or not, she should have made damn sure the road was clear before she came out.

 

You probably need to follow suit, take your own photos, paying attention to road markings signs against the other driver. Does your insurance include solicitor cover? get in touch with them if it does. It should not make any difference if you use same insurance ( at least it shouldn't)

 

You should write to your insurers to find out how they are going to play it. tell them adamantly that you don't accept any of the blame.

 

that's what i'd do. but that's only my opinion.

 

Sharpman

[mexy71]

thanks for reply..... I am not covered under the legal expenses cover with the insurance co, and had to instruct one indepently. she has instructed the solicitor and they put it to the insurers that they are not treating her fairly under Part 36 offer, and allegating that i was travelling at speed in an unsafe fashion coming from an access only road(not true).. I am concerned that because we are with the same insurance they may find it eaiser to settle underrrthis part 36 offer and i stand to lose alot my car is already a write off. The road is now completed , so do you think i should still take photos? But good shout about getting in touch to see how they intend to play it...thanks

[SharpmanTF1]

You said you live off the road in question. where in relation to this road? would you have needed to travel down this road to get to your house?

if thats the case then that is reason for access.

 

sharpman

[Mossycat]

OK lets not confuse the issue with 'Access Only', it's like saying that if you hit a car that has no road tax it shouldn't have been on the road and therefore you don't have to pay if it was your fault.

 

(You could just as well argue that although the road was 'Access Only' you were lost or assumed the address you were loooking for was on that road, which are both perfectly good reasons for been on that road regardless of wherev you actually live)

 

The facts are that you were on a main road and another driver emerged onto that road.

 

As drivers you both have a duty of care.

 

You had a duty to drive in a safe and controlled manner, such that, if something (another vehicle or a pedestrian) emerged into your path you could stop in time to avoid a collision.

 

She had a duty of care to ensure that the road she was emerging onto was clear (the fact that she may or may not have known it was restricted access and therefore was not expecting anyone on that road will not suffice as a defence).

 

Since there are no independent witnesses, the impact damage to both vehicles will be an important factor. (If it is her front end and the side of your car then it's a good indicator she drove into you).

 

I doubt that she is in a position to be qualified to comment on speed, whilst she may alledge you were speeding, you simply deny it. Unless anything to the contrary can be proven then that's a non-starter for her.

 

Sadly this happens a lot where people change their story after the event because they smell compensation, you mentioned solicitors are acting for her, is there by any chance a suggestion that she was injured?

 

Mossy

Edited September 22, 2008 by Mossycat

[gyzmo]

the circs are, from what I can see, that the third party is liable, or rather, that there is no liability on your part. As such, your insurer should defend any counterclaim and there would be no need for you to have legal assistence in terms of defence.

 

As for the speeding bit, ask if they have a speed camera on their vehicle and if so what the hell they were doing with one. Saying "x was speeding" is, simply, heresay.

[mexy71]

thnaks for the replys... it looks from your anser that the solicitor who is acting for her has convinced her she has a case (he will get paid whether or not they agree to 50/50) and yes she probally will then be wanting to claim personal injuries if she wins. They have put it to my insurancers to accept 50/50 by way of Part 36 offer - does anyone know what this really means. i checked on the net and it is a good tool (so suggested) to getting agreement???? -

[gyzmo]

Its basically an encouragement to get parties to settle out of court. If not accepted, it can mean costs if lost in court. If a solicitor is saying that, then in the absence of any proof, it looks like a 50/50 would be best.

[mexy71]

hi gyzmo.. are you that it could be possible for the insurance to settle this 50/50 regardless of her pulling out on me ? as i stand to loss o lot if this is the case... any ideas how this can be prevented? thanks

[Mossycat]

hi gyzmo.. are you that it could be possible for the insurance to settle this 50/50 regardless of her pulling out on me ? as i stand to loss o lot if this is the case... any ideas how this can be prevented? thanks

 

Gyzmo is saying that in the absence of any independent evidence (witnesses) etc thta it could be settled on a 50/50 basis. That is to say that, since neither of you accept responsibility for the accident and your word carries no more weight than her word it is impossible for anyone to say exactly what happened and who is to blame.

 

As I said earlier, the impact damage could well be an important factor.

 

Can you please detail here exactly what was damaged on your car and what was damaged on her car, this should give a good clue as to who drove into who

 

Mossy

[mexy71]

thanks ......the damage to my car is driver side from wheelarch (front bumper side) to driver side corner bumper and hers was passenger side corner bumper. she was over the white line on the road bacially more than front nose on my side of the road)... Her car didnt suffer any real noticable damage dainted wheel arch where as my car was smashed in at the driver corner.... does help any?

 

there was an old man standing at the side of the road so i will have to find out where he lives in as he is a key witness and see what he recalls.

[Mossycat]

OK if I am understanding this correctly, she was edgeing out because her view was restricted by another vehicle, hence why she was over the white line. You were on the main road.

 

The salient point here is your car was damaged at the driver corner (I assume by that you mean front corner), if so she didn't drive into your car, rather she emerged into your path. You do not mention any damage to your door which would indicate that you were not as far forward as I would have hoped.

 

In view of this and in the absence of any independent witnesses I would have to agree that a 50/50 settlement would be the most likely outcome.

 

I appreciate that this is not what you wanted to hear, but in reality, where two drivers both blame the other and with impact damage like this and with no independent evidence it really is your word against hers, and since you both had a duty of care whilst in charge of a motor vehicle (I know it may sound harsh but as a driver you are expected to anticipate things like a driver or a child pulling/running out from behind a parked vehicle, particularly where it is junction).

 

Unless she now admits what she originally admitted then I really do think a 50/50 is on the cards.

 

Mossy

[mexy71]

OK if I am understanding this correctly, she was edgeing out because her view was restricted by another vehicle, hence why she was over the white line. You were on the main road.

 

The salient point here is your car was damaged at the driver corner (I assume by that you mean front corner), if so she didn't drive into your car, rather she emerged into your path. You do not mention any damage to your door which would indicate that you were not as far forward as I would have hoped.

 

In view of this and in the absence of any independent witnesses I would have to agree that a 50/50 settlement would be the most likely outcome.

 

I appreciate that this is not what you wanted to hear, but in reality, where two drivers both blame the other and with impact damage like this and with no independent evidence it really is your word against hers, and since you both had a duty of care whilst in charge of a motor vehicle (I know it may sound harsh but as a driver you are expected to anticipate things like a driver or a child pulling/running out from behind a parked vehicle, particularly where it is junction).

 

Unless she now admits what she originally admitted then I really do think a 50/50 is on the cards.

 

Mossy

 

 

so i will have to track that guy doen and see wht he has to say and get him on board... because this is unfair as she says she didnt see me and that the sun was in her eyes , when in fact the sun was in the opposite direction.... just triyin her luck as i know she just pulled out carelessly

[SharpmanTF1]

because this is unfair as she says she didnt see me and that the sun was in her eyes

 

Well, if she goes with that, and you know for a fact that the sun had no play in the incident, then you can proove it as the sun will always follow same path - it's a nature thing - at that particular time of day the sun would be in a particular place in the sky, obviously you can throw doubt on her case if you can prove the position of sun ( at a certain time of day (when it's sunny of course )where I live it's a mare to drive west on the m54 as the sun is so low it shines right in yer face)

 

I had a similar incident a year ago, but I was in her shoes. I was edging out on a busy road. turning right onto main road. checked left, right etc, left was clear, cursory check right and I started to pull away. bam:evil:

 

I was adamant that I was at the central line, so the guy from right must have seen me.

 

Went to court - he tried to claim alsorts but didn't get it as we had only hit at a slow speed. (i can only think that he tried to go round me at the same time as I tried to turn left. thems the breaks ( company car so not too stressed)

 

Any way, it went to court, I had a solicitor - much use as chocolate fireguard - the other guy didn't, pleaded alsorts - judge took his side because my solicitor was an ass and didn't ask the correct questions etc.

 

At the end of day it's how you can stuff her evidence for her that will count.

 

Take some pictures of the scene, I know it's a bit down the line but you may be able to show positions of car, impact etc. as they say a picture paints a thousand words.

 

Also, if she does take you to court you're, i'm sure, entitled to see the pictures she took to see if they actualy corroberate her story.

 

Just a few thoughts to be going on with

 

Sharpman

[Chesterexpress]

she says she didnt see me and that the sun was in her eyes

 

Why bother disputing what she has said above? I would play on that statement big time, she has admitted she didn't see you and that the reason for this was that the sun was in her eyes, therefore she ought to have taken much more care than she obviously did.

[mexy71]

thanks guys for your comment ... i just spoke to the guy who kinda seen it happen and he confirmed i wasnt travelling at speed and i was driving appropiately to the road conditions... he has offerred to speak to my solicitor... now im hoping that if she lied about that (or should i say the solicitors have told her to say that i was speeding they wont believe a word now. Only thing she has to go on is that her view was obstructed by the contractor vans. And yes the insurance co confirmed today what she is claiming for injuries.

Edited September 23, 2008 by mexy71

[revolting peasant]

From what I have read here there is no question about liability.

 

The TP was emerging from a side road with her view obstructed by a parked vehicle and you were driving on the "major" road. The TP had a duty of care when exiting the side road. It would appear that she didn't excersise that care.

 

Speed is actually irrelevant in this type of case. In theory, you could have been doing 60 in a 30 but the TP still has responsibility to asess your spped and respond accordingly.

 

In my opinion the TP will not win a PI claim and the matter should be settled 100% in your favour.

 

Revolting Peasant ACII

[Mossycat]

OK a few points

 

I asked about personal injuries because when you mentioned solicitors that is a big earner for them. They will be on a no win no fee basis, hence why they want to get a settlement from your insurers so they can claim their costs.

 

As Chesterexpress stated do not counter her argument that she didn't see you and the sun was in her eyes, that works in your favour since that makes her negligent.

 

The witness needs to do a witness statement, and possibly a statement of truth, your solicitors will arrange the required paperwork that asks the right questions.

 

The only things she has to go on is that her view was obstructed by a van???????? Again that goes against her, if her view of the major road she was joining was onstructed then that is even more reason to proceed with caution

 

This could be as simple as your opening statement also being your closing summation if they stick to this version.

 

Your honour this accident was caused by a woman who by her own admission didn't see me, was blinded by the sun in her eyes and she even adds that a contractor van was blocking her view of the main road she was joining. Given this admission I fail to see how my actions whilst already driving on the main road and in a straight direction have in anyway contributed to this accident and I therefore ask that you find for me in this case. Indeed immediately after the accident the plaintiff (if they issue on you) / defendent (if you issue on them) apologised.

 

(Don't throw in anything about her accepting liablity, it is a condition of all motor policies that you do not accept liability as to do so would mean that the insurers have been prejudiced and can in some cases refuse to deal with it. You are safe to say that she apologised because that will look good but won't give anyone an opt out).

 

Mossy

 

PS You said in your original post that she has photo's showing the obstruction, if it goes to Court you will get copies of them in discovery (if they intend to use them) which will strengthen your case, however I doubt that her solicitor would want to highlight that their clients view was obstructed since it weakens their case, see if you can get them to send you copies now (or even ask her to send them to you).

Edited September 23, 2008 by Mossycat

[Mossycat]

From what I have read here there is no question about liability.

 

The TP was emerging from a side road with her view obstructed by a parked vehicle and you were driving on the "major" road. The TP had a duty of care when exiting the side road. It would appear that she didn't excersise that care.

 

Speed is actually irrelevant in this type of case. In theory, you could have been doing 60 in a 30 but the TP still has responsibility to asess your spped and respond accordingly.

 

In my opinion the TP will not win a PI claim and the matter should be settled 100% in your favour.

 

Revolting Peasant ACII

 

Hey up Revolting Peasant

 

If the damage was more to the drivers door of the original poster then I would agree, however have another read of the damage to both cars. It's not exactly a text book T bone.

 

I think they will argue that the OP should have exercised more care whilst on the main road. (They have to argue something since they want their costs and I think this is most likely).

 

However the OP has now posted some comments made by the other side which could well swing the argument in their favour.

 

Mossy

[mexy71]

thank you mossycat... i feel alot better reading your advice & speaking to the gent who saw me driving along the road. He wasnt happy when i read the letter to him incidating i was speeding and was happy oblige. Do you think her solicitor will retract once they know i have an independant witness or try to play him along as well (he is an elderly guy with morals!!). the reason why i ask if i feel i have to be 1 step of these people in this case or in your opinion still follow suit. Or this simply now 100% in my favor again.

[mexy71]

Hey up Revolting Peasant

 

If the damage was more to the drivers door of the original poster then I would agree, however have another read of the damage to both cars. It's not exactly a text book T bone.

 

I think they will argue that the OP should have exercised more care whilst on the main road. (They have to argue something since they want their costs and I think this is most likely).

 

However the OP has now posted some comments made by the other side which could well swing the argument in their favour.

 

Mossy

 

 

Follow on! Just to clarify the accident damage, as i didnt explain it to well before! I have since checked the damage on my car - the collision happen corner to corner - not front or side...thanks :O)

[Mossycat]

It's not 100% in your favour yet and possibly may never be, only an admission by the other party that she drove into you would guarantee that.

 

Bear in mind that just as the other driver isn't qualified to state you were speeding (she may claim you were) neither is your witness qualified to state you were not speeding but it's in your favour as his word will help negate her claim.

 

The solicitor acting for her is highly unlikely to retract immediately, remember he only gets his fee if he wins and so will want to explore how much damage this witness is likely to do to his case. I really do suspect he is on a no win no fee basis here, so if your witness is a strong one and likely to support your version they may well back off or it may help you get your claim for uninsured losses dealt with which would undermine their case.

 

What you need to do is pursue your claim against her insurers and use your witness to assist. Yes I know that's the same insurers as you, but that makes no odds to how to proceed.

 

OK a few questions

 

1) Do you have comprehensive or third party insurance

 

2) If comprehensive do you have an excess

 

3) What other unisured losses do you have (loss of use, hire car, out of pocket expenses, were you injured, loss of earnings, general inconvenience)

 

4) Have you appointed anyone to act on your behalf to recover these unisured losses (ie solicitor etc)

 

I'm asking these questions because you may need to take some action now.

[Mossycat]

Follow on! Just to clarify the accident damage, as i didnt explain it to well before! I have since checked the damage on my car - the collision happen corner to corner - not front or side...thanks :O)

 

Yeah I gathered that from your description, corner to corner is not so good as her front end and your drivers door.

 

Don't take that as me disputing your version, but remember I was not present at the accident and neither was the Judge (if it goes to Court), if you are both blaming each other the collision damage as stated would lean towards a split liability (anything from 50/50 to 75/25 in your favour (you were on the main road)), hence why independent witness could well be a vital aspect.

 

Mossy

[mexy71]

It's not 100% in your favour yet and possibly may never be, only an admission by the other party that she drove into you would guarantee that.

 

Bear in mind that just as the other driver isn't qualified to state you were speeding (she may claim you were) neither is your witness qualified to state you were not speeding but it's in your favour as his word will help negate her claim.

 

The solicitor acting for her is highly unlikely to retract immediately, remember he only gets his fee if he wins and so will want to explore how much damage this witness is likely to do to his case. I really do suspect he is on a no win no fee basis here, so if your witness is a strong one and likely to support your version they may well back off or it may help you get your claim for uninsured losses dealt with which would undermine their case.

 

What you need to do is pursue your claim against her insurers and use your witness to assist. Yes I know that's the same insurers as you, but that makes no odds to how to proceed.

 

OK a few questions

 

1) Do you have comprehensive or third party insurance

 

2) If comprehensive do you have an excess

 

3) What other unisured losses do you have (loss of use, hire car, out of pocket expenses, were you injured, loss of earnings, general inconvenience)

 

4) Have you appointed anyone to act on your behalf to recover these unisured losses (ie solicitor etc)

 

I'm asking these questions because you may need to take some action now.

 

1) i have comprehensive

 

2) yes i have excess - 250

 

3) i have out of pocket expenses, i was injured, have suffered loss of earnings & general inconvenience and plus the fact i had to buy a car to run round in

 

4) because i wasnt covered on my policy for legal expensive insurance i appointed a solicitor.

 

Just to say i appreciate your hepl and advice! thanks

Edited September 24, 2008 by mexy71

[Mossycat]

1) i have comprehensive

 

2) yes i have excess - 250

 

3) i have out of pocket expenses, i was injured, have suffered loss of earnings & general inconvenience and plus the fact i had to buy a car to run round in

 

4) because i wasnt covered on my policy for legal expensive insurance i appointed a solicitor.

 

Just to say i appreciate your hepl and advice! thanks

 

OK this makes it easier, the solicitor acting on your behalf will handle what needs to be done. Have a chat with him, advise him about this independent witness, they will write to him with a witness statement, when it is received back (if it shows you in a good light) they will send a copy to her insurers in support of your claim.

 

Basically because you are both insured by the same Insurance Comapny both your and her solicitors will be writing to them claiming the unisured losses.

 

Mossy