Can I choose cheque or voucher? aviva payout after shed emptied

[Bookworm]

The thought did cross my mind, SS.

[merlin100]

Sailor sam and bookworm.

You have raised a very valid point. Let me tell you what happened initially. Will try to be concise.

It was only through persistently hassling the police that they took action. They "suggested" that a verbal warning to the driver would suffice and asked if we agreed with this strategy mainly because of the drivers age.

They didnt want to act, it was only when I asked for the 2 policemans numbers and threatened a report to the IPCC and my MP that they acted.

It took the police almost 6 months to interview the 3 witnesses.

Even after all 3 witnesses said that my son was walking on the pavement and the driver had no other reason to mount the pavement - they still did not want to prosecute.

One speculation I have - and it can only be speculation - is that the drivers father is a local influential businessman who operates a security firm. A lot of police contact? I dont know, but its something I have to consider so any "hint" of a complaint from me must also include making them aware that a complaint will not remain "local".

Anyway, we got through that and the driver was duely convicted.

But now we seem to be facing a wall of indifference from the insurance company. This is why our solicitor has involved the courts.

She has now said that the reason for this is to ask the court to set a date for the insurance company to respond?

I am a little worried about his because -

a) we have yet to recieve the final report from the consultant.

b) no-one (including our solicitor) has bothered to obtain the court transcripts, and that,

c) the insurance company are relying on their customers statement to them, and the police report on the night of the incident, even though that report was influenced by the driver - other witnesses were only asked for their details for future reference.

Any thoughts guys?

[Endymion]

Agree on principle, but there is no civil action at the moment, only an insco stalling on the say-so of their customer. ;-)

 

Of course there is a civil action. The OP's son has brought a civil action against the driver that hit him and the whole thread is about a civil action.

[sailor sam]

I'm sorry but I can't get my head round this! I've read your original post about 3 times and I cannot believe how it has been dealt with! If all your information is correct (and I don't doubt for one minute it is) then I have the following observations;

 

1) You state that the TP driver mounted the pavement 'deliberately' which suggests he was using the car as a weapon to cause injury. To my mind, (as I mentioned before) that constitutes intent so the charges should of reflected this especially as there were witnesses. The minimum charge should of been dangerous driving but this could have easily been esculated to attempted murder depending on the evidence/witnesses available. Your concern about the TPs age should be irrelevant.

 

2) You say the TP has since been convicted for drink-driving and got only a 9 month ban. I can only assume his lowest alcohol reading was below 50mg and he attended a rehab course which shaves 3 months off the mandatory 12 month ban. In anyevent, this has no relevance to your case.

 

3) His insurers are now disputing liablity. So let them! You should be able to provide enough evidence to show that their policy holder was totally liable (and they probably know it but will make every effort to mitigate their losses). I think you will find that they are following a set proceedure in which they will drag this out as far as possible in an attempt to obtain the best result for them and that they will continue to do so untill they recieve a court date when they will change their position.

 

4) as for the actual incident and the charges bought, I personally would of consulted my MP and asked my solicitor if there was an avenue of appealing the court's decission because I think the outcome you got was ludicrous.

 

Good luck and keep us posted!

 

__________________

Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my scales at the bottom of my profile window on the left if you found my advice usefull.

[Mossycat]

 

1) You state that the TP driver mounted the pavement 'deliberately' which suggests he was using the car as a weapon to cause injury. To my mind, (as I mentioned before) that constitutes intent so the charges should of reflected this especially as there were witnesses. The minimum charge should of been dangerous driving but this could have easily been esculated to attempted murder depending on the evidence/witnesses available. Your concern about the TPs age should be irrelevant.

 

 

Just a thought........

 

A driver could mount a pavement deliberately to negotiate or avoid an obstacle in the road, that wouldn't mean or suggest that they were intending to cause injury to anyone.

 

Mossy

[sailor sam]

Just a thought........

 

A driver could mount a pavement deliberately to negotiate or avoid an obstacle in the road, that wouldn't mean or suggest that they were intending to cause injury to anyone.

 

Mossy

 

Hmm, possibly Mossy but the OP states that 'there was no other reason to mount the pavement' so as usual, we only can rely on the Ops info. In any event, surely mounting the pavement would normally at the very least constitute driving without due care and attention or some other similar offence?

 

__________________

Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my scales at the bottom of my profile window on the left if you found my advice usefull.

[Bookworm]

Of course there is a civil action. The OP's son has brought a civil action against the driver that hit him and the whole thread is about a civil action.

Apologies, my mistake, just re-read the 1st post and had completely missed the sentence about solicitors having applied to the courts.

[merlin100]

Hi guys and many thanks to you all.

To clarify the night of the incident.....

The lad who hit my son was racing around the streets against another lad in a car although this had no direct link to him hitting my son.

The driver drove past my son, who was walking along the pavement.

About 300 yards further on, the driver drove around an island and came racing back up the street, mounted the pavement with no other cause to do so and hit my son. My son was thrown onto the bonnet where he tried to hang on by the windscreen wipers whilst at the same time yelling to the driver to stop. One of the witnesses was a passenger in the car, and my son could clearly hear him shouting to the driver to stop. The passenger later confirmed this in court as he "turned against" the driver.

The driver, at about 30 miles an hour ( according to the witnesses, of which two were drivers) braked sharply and threw my son off the bonnet and into the road where he obtained his injuries ( bad head wound leaving a permanent scar, badly shattered ankle and multiple cuts, grazes and bruises). Witnesses also confirmed that the driver was laughing at the time.

Once the police and ambulance arrived (my son was unconcious at this time), the driver told them it was an accident, that my son was in the middle of the road and he simply didnt see him.

At the hospital, the police then repeated the story of the driver to the doctor - that my son had probably been drinking and was walking in the middle of the road. The 3 witnesses also turned up at hospital as they knew my son, and the driver, and were concerned. They all offered to make statements there and then but the police couldnt be bothered and just took their details.

Months of phone calls to the police by me, followed. Even the witnesses eventually contacted the police asking to make statements, it was looking to be a waste of time. Either the officer, or his Sergeant, were either on holiday, off sick, otherwise disposed etc, it just went on and on.

Eventually I phoned asking for the details and address of who to officially complain to - thats when it all changed.

But even though the police began to show their presence, they kept "fishing" as to whether we would be happy for them to issue a "caution" to the driver. Eventually I had had enough so I requested the number of the officer who attended the incident, and his Sergeant and made it known I was prepared at this stage to report them to the IPCC and my MP.

That really worked - the witnesses were all interviewed within 2 weeks. The driver was arrested 2 weeks after that and charged with careless driving.

One poster suggested complaing regarding this lesser charge. It was an option, but any charge above careless driving carries the ingredient of proving intent and the CPS, as useless as usual, would not take that risk, but I do understand why. Now I agree, that the actions of the driver look to be very deliberate, and I would have liked nothing more to see him get a substantial punishment. But the reality is that a Magistrates Court would always have sympathy with him because of his age, and to my mind ANY conviction would massively help in the future when the battle with the insurance company commenced, and to be honest, it looks like I was correct.

But now we have this new battle - a wall of silence and periodic denial of liability from the drivers insurance company ( and its one of the big ones).

But we will keep going. We will now see what these court proceedings bring.

Thanks all.

[Endymion]

The main reason, I suspect, for the defendants insurance company not being proactive or responding is a thing called limitation.

 

Limitation is something governed by the Limitation Act 1980 and states that within 3 years of the accident, you must have issued proceedings in Court. Failure to do this means that the claim is statute barred and then you have to go through all sorts of hoops in order to get the Court to grant you relief from the sanctions imposed and even then your chances are slim.

 

As such, insurance companies on big claims, such as your son's, can be prone to not admitting liability and hoping that the Claimants solicitors mess up and forget to issue within the 3 year period.

 

It's not illegal or unethical, and sometimes works, but if you have a good solicitor it should not be a problem.

 

In order to counter this and to show the Court that the defendants have been acting unreasonably, you need to have evidence to support your claim. As such, your solicitors should have obtained the police report, at least a copy of the conviction but prefferably the transcript and obtained civil witness statements from the witnesses.

 

If they haven't then it is still your son's word against that of the defendant and to be honest, if I were the defendants, you could tell me until you were blue in the face that my client had committed an offence, but unless you provided me with evidence to show this, I would not be inclined to admit liability in light of the high value of the claim when there may well be an element of contributory negligence on behalf of your son.

[merlin100]

Thanks for that endymon,

didnt know that a claim could be subject to Limitations after 3 years.

Going to ring the solicitor today and seek clarification of her intentions.

Will update later.

[sailor sam]

The main reason, I suspect, for the defendants insurance company not being proactive or responding is a thing called limitation.

 

Limitation is something governed by the Limitation Act 1980 and states that within 3 years of the accident, you must have issued proceedings in Court. Failure to do this means that the claim is statute barred and then you have to go through all sorts of hoops in order to get the Court to grant you relief from the sanctions imposed and even then your chances are slim.

 

As such, insurance companies on big claims, such as your son's, can be prone to not admitting liability and hoping that the Claimants solicitors mess up and forget to issue within the 3 year period.

 

 

 

It's not illegal or unethical, and sometimes works, but if you have a good solicitor it should not be a problem.

 

In order to counter this and to show the Court that the defendants have been acting unreasonably, you need to have evidence to support your claim. As such, your solicitors should have obtained the police report, at least a copy of the conviction but prefferably the transcript and obtained civil witness statements from the witnesses.

 

If they haven't then it is still your son's word against that of the defendant and to be honest, if I were the defendants, you could tell me until you were blue in the face that my client had committed an offence, but unless you provided me with evidence to show this, I would not be inclined to admit liability in light of the high value of the claim when there may well be an element of contributory negligence on behalf of your son.

 

Can you explain how a pedestrian on a pavement can possibly make 'an element of contributory negligence' to a car mounting the pavement and hitting him?

 

To the OP; I hope you did actually refer this to your MP and that he/she is looking into the actions of the police. You certainly chould not of had to go through all that you did to get therm to act. As far as the magistrates taking age into account; the have a duty to protect the public in cases like this, not the offender. In light of all the witnesses you had, It should have been dealt with in the crown court. Again, I suspect that the police 'lack of interest' and the subsiquent time it took to prosecute in the first place, caused memories to lapse thus loosing vital information to give the CPS enough confidence in bringing a more serious charge.

 

__________________

Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my scales at the bottom of my profile window on the left if you found my advice usefull.

[Mossycat]

Can you explain how a pedestrian on a pavement can possibly make 'an element of contributory negligence' to a car mounting the pavement and hitting him?

 

 

Endymion was not saying that (contrib negligence) is the case he/she was saying that could be the case and is being dilligent in requiring positive proof that that was not the case.

 

So far we only have the OP's word (and I am not saying that we do not believe it) but this is a serious case with a potentially large PI claim, so the other persons insurers are going to want to investigate everything and have facts proven to them, which is what Endymion was explaining.

 

Mossy

[Endymion]

Sailor Sam - I say that the defendants insurance company may think there is an element of contrib by the OP's son due to their policyholder probably relaying the same story as he told the police i.e. that the Claimant was blind drunk and walking in the middle of the road.

 

Unless the Claimants solicitors have provided evidence to show that the defendant was convicted and the accident circumstances as taken to be the true version of events by the criminal Court, why should they not believe their insured, especially if he hasn't disclosed his conviction which seems to be the case (and also raises worries about indemnity - but that's another story).

[merlin100]

Hi guys, everything is true. I havent embellished this in any way - I would only be doing myself and my son a diservice.

Endymion - what do you mean by the insured not disclosing the conviction to his insurers? Could this affect our case in any way?

Surely we could not be held in anyway accountable for any failings of the insured in this way?

And Sailor, I agree with everything you say regarding a higher charge and Crown Court.

Unfortunately, we have had to accept reality. The English Legal system, once the best in the world, is now just a tired old man, and yes, I am one of those that truly believe it is there to protect the criminal. There are far too many cases of injustice where the criminals rights have far superceded the victims. It isnt fair by any standards, but its all we have.

This is why I didnt object to the careless driving charge - I knew the magistrates would in part sympathise with a 17 years old youth, and they did. He recieved a fine and 3 points - nothing more, even though he deliberately mislead the court with his version of events and was found to be lying.

[merlin100]

Sorry guys, youve just reminded me.

It was around 18 months between the conviction and the insurance company contacting their client regarding a statement of events due to our claim being submitted to them. So yes, maybe he did fail to disclose his conviction. Does that affect us in any way?

[Mossycat]

Hi guys, everything is true. I havent embellished this in any way - I would only be doing myself and my son a diservice.

Endymion - what do you mean by the insured not disclosing the conviction to his insurers? Could this affect our case in any way?

Surely we could not be held in anyway accountable for any failings of the insured in this way?

 

I wasn't trying to suggest that you had not being 100% truthful, I was trying to explain the position from the other insurers point of view in relation to the contrib negligence comment.

 

So yes, maybe he did fail to disclose his conviction. Does that affect us in any way?

 

No that shouldn't affect your claim, he was convicted as a result of this accident so it was insurance in force after the conviction that disclosure is required (and in any event the insurer concerned would be obliged to deal with a third party claim and then persue recovery back from their policyholder).

 

Mossy

[merlin100]

Hi mossy, wasnt suggesting anything there - just trying to tell you all that the events I have described are totally acurate.

Damn solicitor is away today. Have to ring tomorrow.

[merlin100]

Hi all, well, something has finally happened.

The insurance company have offered a Part 36 £10000 payment subject to liability of which £2000 will be sent as an interim payment next week.

Needless to say, we are rejecting everything except the interim payment. This is before the final consultants report is available.

 

Now for a funny thing -

 

I was talking to the solicitor this morning. She told me that she had been in touch with the insurance solicitor and in their conversation, he said that he didnt know where this offer had come from or who had made it especially as no-one has yet seen the consultants report. It certainly wasnt him and he was currently trying to find out who had authorised and assessed it.

Apparently he was quite ok about it and is going to sanction the interim payment anyway.

Looks to me like someone is trying it on.

 

So at this moment we have accepted the interim payment and are leaving the rest of the offer "open" subject to the consultants report.

[Endymion]

Hmm, well you cant accept 'bits' of a Part 36 offer - it's either all or none. The Part 36 offer as made is made by the Defendant to settle. If a Claimant was allowed to accept 'bits' of the offer then there would be no point in making an offer by way of a Part 36 payment.

 

The whole point of making a part 36 offer is to put the offeree at risk of costs i.e. if you fail to beat their offer at trial then you don't get your costs after 21 days from the date of the offer and the defendant gets their costs to the date of the trial from the expiry of the offer.

 

If you accept it in any way, then you are in effect accepting the Part 36 offer and that may be seen by the Courts as a binding contract of compromise and therefore settled. So I would be very careful as to accepting anything (especially as no one knows who made the offer!).

 

If the insurers have agreed that a £2k interim can be paid then that's fine, but don't accept their offer of £2k as part of the Part 36 offer unless specifically agreed with the Defendants that in no uncertain terms are you accepting the Part 36 offer.

[merlin100]

Good point there endymion.

From the conversation I had with her, she seemed to be under the assumption that the interim payment was not part of the Part 36 offer.

But she then went on to say that this interim payment ( and the last one) would obviously be taken of the amount should it be accepted. I wonder if this could in some way link the two payments ( ie like you suggested, all or nothing).

She definately does not want my son to accept the offer ( we will not be doing so), as she says the previous two consultants reports are very favourable towards my son and there seems to be no reason why this last one should differ.

Thanks Endymion, I appreciate all your input.

[merlin100]

My lad got stopped a couple of weeks ago - just the usual "lets stop everything and get some cash in cos we are pretty useless at everything else" police harrassment.

Anyway, although he had been insured for just over a month, his details had not been registered on the database that the cops use in almost biblical proportion.

The cop that stopped him wanted to inpound his car immediately. It was only the intervention of another cop that got my son the producer giving him the 7 days to produce his documents.

 

Three days later, my son went to the local station with all his documents - all perfectly legal.

The cop on the desk refused to accept his insurance certificate as valid because once again they couldnt find it on the database.

It was the original certificate sent by the insurance company.

 

I then went back to the police station with him and insisted that the cop enter our visit in the log, with time and date and a list of documents offered.

He refused so I asked to speak to his superior. He then grudgingly took the details.

 

When we got home I then phoned the insurance company and asked them why he wasnt on the register. They replied by apologising but stating that placing the details on the register was only "voluntary".

 

So does anyone know if this is true? Surely the police cannot rely as heavily as they do on a voluntary scheme?

And if it is true - was recourse would my son have had against the police/insurance company had his car been taken from him through no fault of his own?

And what is the point of the police asking to see an insurance document if they consider it to be worthless unless its on the database?

[unclebulgaria67]

My understanding is that Insurers have a legal obligation to enter information onto the Motor Insurance Database (MID) within 24 hours of cover being placed.

 

I couldn't tell you what legislation this comes under, but I have been in meetings with those that work in compliance and this is taken really seriously. If information is not appearing on the MID, they investigate this as a matter of urgency.

 

This is not only about Police checks, but also if you want to obtain your road tax online, the details have to be on MID.

 

I really suggest that your son makes an official complaint to the Insurers and looks to speak to someone senior. I suspect the Insurers have not issued the policy correctly or there is some issue. If they don't resolve this, your son will face problems everytime the Police do a check on his car. The Police do target young drivers and I believe it is correct of them to do so. So I would not criticise them. We have all seen accidents where young drivers have killed themselves and others or caused serious injuries. I suppose if you are a copper and you have seen these accidents in all there gory detail, you might have a different view and not see Police stop checks as harassment.

[Endymion]

There are a couple of statutes and statutory instruments that cover this.

 

This SI explains what powers allow the database to be accessed by the police, reporting etc etc:-

 

http://www.opsi.gov.uk/si/si2005/uksi_20052833_en.pdf

 

However, this has slightly changed and since January 2008 the insurer MUST within 7 days (used to be 14 days) provide the insurance details of the vehicle and policyholder from the date the policy is taken out or otherwise the insurers have commited an offence.

 

Unfortunately, as usual, the punishment is metered out by a voluntary and self regulated body, so they will only probably get a slapped wrist etc...

[dpick]

It could also be the case that when getting his insurance they miss typed the registration number. This happened to me and I did not notice until approx two weeks after the insurance started.

 

dpick

[merlin100]

Hi guys and thanks for the replies.

UncleBulgaria (Mike Batt is a musical genius by the way), I understand what you are saying, but I must disagree with the way the police target young drivers.

Anyone seen driving a car in any stupid way should be targeted by the police, and yes, its mainly the young. But this should not give them the right to target the young generally. I have seen the young idiots on the road, and they should be penalised for their actions. But then I have also seen many young - and sensible - drivers ( and thankfully my son is one of them) on the roads too. Why should they be targeted simply because of their age? That isnt fair.

And I do stand by my view that the police are nothing more than revenue enforcement officers now.

Two months ago I had my shed burgled and something like £5000 of fishing tackle nicked. Ok, it might have only been a shed, but the response from the police left a lot to be desired. No-one came out until the next day, and that was only to give me a crime number and tell me that there was little chance of catching them - perfectly true seeing as no-one was even going to TRY?

A few months ago I had one of my cars broken into at work. The rear drivers side window was smashed but nothing much stolen. By the time I had driven about 2 miles and got to Meadowhell(?) shopping center, it was like a scene from the Keystone Cops - the entire South Yorkshire Police Force was behind me sniffing for titbits!!

I didnt know whether to laugh or cry in frustration!