Taxi written off, full 3rd party liability, they won't cover ins costs of courtesy car

[Stay calm. Drink Tea.]

Ok, in a nutshell as the title says.

 

Im a hackney licenced taxi driver, I had fully comp hire and reward insurance that provided me with a hackney plated courtesy vehicle in a no fault claim.

 

Its monday the 29th of May, 2023, and exactly 12 minutes past 5pm.

I was stationary, with a customer in the back seat, waiting to turn right into a large church forecourt.

A black BMW pulled up behind me, either waiting for me to turn or to turn right himself.
After a few moments, an oncoming car stops to allow me to turn, but before I start to move, a silver toyota RAV4 slams into the rear of the BMW, which is shunted forwards into me, my car is shunted forwards around 1 and a half car lengths, turned rightly 45 degrees clockwise and stopped moving an inch away from the front of the stationary oncoming car. (If he had not stopped, it would have been a head on impact...)

The rear of my car was stoved in the entire rear floor was concertina'd up and seperated from the chasis although my tow bar took the brunt of the impact

The BMW in the middle was completely totalled

The front of the RAV4 was completely totalled and the engine was damaged because most of the engine fluids were on the road.

It was quite an impact. From the damage transfered through two stationary cars, I believe the driver was speeding although I understand that I cant prove that and that is an opinion that cant be taken as fact.

The driver of the silver toyota was completely nonchalant and was just like 'Sorry, never mind, thats what insurance is for...'

There were witnesses in the oncoming car that stopped, the driver that was behind the RAV4 who said the Rav4 brakelights never came on, another driver who had just gone past me (oncoming) but was more or less beside the black BMW when the impact happened and a number of pedestrians

As stated I had a passenger in the back seat, the BMW had two children in the back seat, the RAV4 had only the driver.

Somehow, apart from my mid and lower back feeling like Id been kicked, there were no injuries at all.

 

The police were called by at least 3 people including myself, but they declined to attend on every single call stating that they now only attend RTA's if there is street furniture that is damaged, there is serious injuries and/or the vehicles cant be moved so the road is blocked.

As it was possible to push the cars and there were no serious injuries or street furniture damaged, the policy for West Sussex policew is now not to attend, but for all parties to exchange details and let the insurance deal with it. (the following day I went to Bognor police station and spoke to a traffic office in his car and asked him about this and he confirmed that even though one or more of the drivers that caused the crash may or may not have been under the influence and therefore commiting a serious offence, this was in fact the current West Sussex police policy).

I had my car towed home by a friend after moving it about 30 feet onto the church forecourt,  it would not drive in a straight line. I was instructed by my insurance company not to drive it. (it was subsequently written off as a total loss due to a twisted chassis. I was told the BMW and the RAV 4 were also written off.)

 

There wasnt really any dispute about who was liable, videos of the scene, plenty of indipendent witnesses and the RAV4 driver admitted full liability from the start.

As per my policy, I was supplied with a hackney plated courtesy vehicle, which I had to wait two weeks for due to getting it licenced with the local authority, and I was able to continue to work while the claim was resolved.

I had some minor bruising to my back from the impact, but not not neck whiplash and I was wearing a seatbelt, even though licenced hackney carriage drivers are excempt from the seatbelt laws and I was not required to when I had a passenger.

After a month the vehicle part of the claim was settled as a no fault claim with the third party admitting full liability. I was paid the current market value of the vehicle, less the outstanding finance on it (which I think is completely unfair as even though its a 100% 3rd party fault Im still left massively out of pocket on the vehicle, which I feel I shouldnt be...)

The courtesy vehicle had to be returned 7 days after the payout for my car was made.

The other part of the claim which is still ongoing consists of four visits to a physiotherapy clinic for my bruised back (which is now ok, I was lucky) and 2 and a hald weeks lost earnings while I waited for the replacement hackney carriage licenced vehicle to be provided so that I could continue to work while the claim was resolved.

Its now the 14th of August and two things have happened in the last 7 days which I have some questions on:

Question 1

My physiotherapy and loss of earnings claim has been passed from ARC the in house insurance company to a different legal firm. They want me to go to a physiotherapist in Portsmouth, a 40 minute plus drive each way not including traffic through a low emission zone that Ill be charged for as I am a hackney plated vehicle, to be assessed.

Ive told them that I am fine, but they are adamant that my injuries have to be assessed, even though I am fine and getting on for 4 months later I have no injuries.
I spoke to the physiothery clinic I have to go to and they told me that they will look at me, will be unable to comment as I did not have my treatment there, make a record that I have no current injuries and refer the solicitors to the physiotherapy clinic where I had my treatment for my injury and treatment records.
Ive spoken to the solicitor and said this seems like a massive waste of time for me and the portsmouth physio and a massive money sink for all involved, when we could go straight to the clinic where I had the treatment for the current follow up as this is where we are all going to referred to anyway.

It seems to me this is just a money generating waste of time with the solicitors being the ONLY people who benefit from this. I have runf them and been told the person dealing will ring back, but they havent, and I have written but they are literally completely ignoring me and have not responded.

Can I get this changed or are we just resigned to everyones time being wasted while we are referred back to my own local clinic, and if so, can I claim travelling expenses to the portsmouth clinic as if I have to to portsmouth IM kind of resigned to taking a day off work and going by train.
(The solicitors also told me the last time they did acknowledge my existance that this might go on for another 12 months. I feel like saying, You know what, dont bother.... )

 

Question 2

This morning Ive had a call from the courtesy car/car rental division of my insurance company who have told me that even though its a 100% 3rd party fault claim, the third party insurance company is refusing to pay for the hire of the hackney plated courtesy car claiming that they believe that I would have been financially able to support myself for the 30 odd days of the hire duration and that there is case law that supports this.

So I now, through a system called ISAGI, have to provide them full access to all my bank accounts, account and transaction history for an unspecified time before and to date since the accident, and my full credit history to prove that I would have been unable to financially support myself in this time. If the 3rd party insurance company can prove that I had funds that I could have survived on without working, there is allegedly case law that says they dont have to cover the cost of my replacement work vehicle.

Which in turn potentially now leaves me liable for the 30 odd days hackney vehicle hire until the insurance claim for my own vehicle complated.

Im really worried about this.

I COULD have survived on my finances for a 6 weeks without working if I really had to, (lets face it we all proved that in covid...) and giving them full access to my bank accounts and finances is basically going to prove that, but I had an insurance policy that gave me a replacement vehicle so that I wouldnt have to have enforced time off and I COULD work if something like this happened.

Is this right? Am I now potentially facing a £5000 plus hire fee after the insurance companies have looked at my finances?

I dont have this money, and I wont be able to afford another loan for it on top of the finance loan Ive taken out to replace my car.

Should I give my insurance company the acess to my bank accounts and credit history? Will I have to pay this bill if I dont comply and refuse to co operate?

More importantly, if I do comply and do give them access, am I giving them ammunition so I will I have to pay this bill if I DO do as Im being asked?

Im really not sure what to do next...

 

Remember, drink tea and at least try to stay calm...

Edited August 14, 2023 by Stay calm. Drink Tea.
spelling, correcting an incorrect word

[BankFodder]

You are pretty new here so I'm going to flag up that extremely long narrative posts such as you have made here tend to discourage people from reading the whole thing and following up – especially people using small screens such as telephones – and more more of the people who browse the Internet are using mobile telephones most of the time.

I'm trying to go through it all – but it is very long – but the first thing that occurs to me is that you have received a call from apparently the car rental division of your insurance company and they say that they want evidence of your finances because if it turns out that you could have supported yourself during the period that you were without a vehicle then you would have been expected to do this even though the accident was not your fault.

Frankly I don't believe it.

They shouldn't be telephoning you about this kind of thing. You want it in writing – and if I were you I'd get back to them on the telephone and tell them that you want in writing and also you want them to identify the case law to which they are referring.

Two things:
first of all you say are witnesses. Do you have the names and addresses of these witnesses? Have you obtained written statements from them?

Secondly, you seem to have incurred a great deal of expenses and losses. What is the total value of those?

Please can you itemise them here in a tabulated form.
We want details of actual identifiable losses such as car repairs, medical expenses – and then more generalised losses – loss of earnings.

 

 

Do you have the full contact details – name and address vehicle et cetera of the BMW and also of the RAV?

 

In terms of the information they say they require in respect of your finances, I think you should also require sight of the policy terms and conditions where it says that you would be liable to produce this – and also where it says that if you have sufficient financial means that you won't be able to recover your loss of earnings losses from a culpable third-party

 

Also what is the name of your insurance company and of the third party insurance company?

[unclebulgaria67]

Speak to your Insurance companies claims department and not the hire people.

Yes as part of the claims process where there is expensive hire arrangements, the Insurance companies look at ways a person could have kept costs lower, by asking for all relevant information.  So what you are being asked to provide, appears to be part of standard processes for this type of claim element.

[Stay calm. Drink Tea.]

My insurance company is AVIVA

I do have the names and addresses of all the witnesses, and I do have the names and addresses of both the BMW driver and the Rav4 driver.

I do not personally have any statements that they made, these were all given to the insurance company directly, but I do know that they all say the silver RAV4 drove into two stationary vehicles without apparently slowing. The statement from the RAV4 driver admitted full liability. To be fair, on this point, there has never been any dispute on liability.

My car was purchased for £10,000. It was assessed to have a twisted rear chassis and a total loss. It was valued at £5400, which after looking around was the current market calue of a car that registration with almost 180k miles on the clock. There was £1200 outstanding on finance, which was was paid off by the insurance company out of my payout figure so I recieved £4200

After seeking advice from 111 about my sore back, I booked an appoinment with a large physio clinic and I had a total of four visits at £57 each.

I had two and a half weeks out of work while waiting for a hackney plated car and I had the car for I think 33 days. It was returned 7 days after the payout on my car was made.

So to my way of thinking, the real world effect on mr having to replace my car, is Im around £5800 out of pocket on my car and £228 on the physio and 14 days out of work at around £160ish per day.

The payout on my car was made as a full non fault claim and I have not lost any of my no claims bonus,

The (RAV4 driver) third party insurance company is KGM

 

After phoning both the car hire division back and the main insurers. Apparently there is no question that I am 100% not at fault. But KGM insurance do not subscribe to or agree with the "General Terms of Agreement of the Association of British Insurers"
This means that they do not agree to pay anything even in a 100% fault claim. It is not in my terms and conditions and I have a right to refuse. However if I do, it will most likely end up in court when Aviva takes KGM to court, and then I will be requested by the court for the information anyway, so I can save a lot of time and expense by giving it up now. Apparently this happens all the time.

The case law they are using is HUMAYUM HUSSAIN Vs EUI LTD, 10th Oct 2019. Ive attached it as a PDF.

The short version of the judgement is that: Even if the 3rd party insured is undisputed 100% liable. If the 3rd party insurers can prove that I had enough money in the bank to live on for the time duration between the accident and the vehicle payout, then the courtesy hire vehicle can be deemed an unnecessary cost that they do not have to pay.

It is alledgedly extremely unlikely that I will be liable for the bill, but it is possible...

 

Drink tea and Keep calm.

Hussain v EUI Ltd [2019] EWHC 2647 (QB).pdf

Edited August 14, 2023 by Stay calm. Drink Tea.

[Manxman in exile]

This might seem a stupid question, but can you confirm how you used your "hackney plated vehicle" that was written off?

Was it used solely for hire in plying your trade, or was it also used for personal use as a family car/or runaround/or for non-business social, domestic and pleasure use?

Did you have another vehicle available to you for family or other non-business use?  )

With hindsight, if the hackney was only used for trade, you might have been better off with insurance that provided cover for loss of income or profit rather than providing a replacement vehicle.  (Of course such cover might not be available as I suspect insurance companies make much more money by providing cedit hire vehicles rather than covering lost income or profit...  

[Stay calm. Drink Tea.]

It was my only vehicle, so I used it as a taxi 5 days a week during the daytime and a private vehicle for all other purposes when I wasn't working.

I did not have any other vehicle available to use.

 

[dx100uk]

99% of cabs are operated that way.

ours were for 35yrs

[BankFodder]

What you are saying about legal liabilities and that you must plunder your own personal reserves in order to cover losses which have been caused by somebody else is absolutely wrong.

It is not my understanding of the law and on a brief reading all the case that you have posted that is not what is being said there either.

You haven't helped anybody's understanding by your rather extended narratives.

Please can you state again briefly you're understanding of this point in respect of recovering your losses.

Is this what you have been told by the insurance or is this some understanding  that you gain from somewhere else.

Have you read the case? If so what is your interpretation of it?

Finally, don't be in a hurry to accept any settlement here or to sign anything which in effect would mean that you are giving up some or all of your rights 

[Manxman in exile]

@BankFodder  -  have you read the case?  I read it before I replied yesterday because I also thought that what the third party insurers were saying must be wrong.  But having read it, I can see why they would want to try and rely on it and that's why I asked the OP if the taxi was solely used for business purposes and also pointed out that he might have been better off buying insurance cover for loss of income rather than for a replacement vehicle.

My take on that case is that where the vehicle in question is a taxi used for trade, the third party is usually only liable to pay for loss of profit and not for the hire of a replacement vehicle.  And I suppose if you think about it, that makes sense.  If the taxi is only used for business then the owner's only quantifiable loss is loss of profit.

An exception to that general rule might be where the vehicle is also used for non-business purposes (as here) but that doesn't seem to be so clearcut since a subsequent case developed that argument. (See link below)

Another exception might be where the taxi owner's finances are such that he simply can't afford not to work, and is entitled to a hire vehicle and not just loss of profit.  But even that doesn't seem straightforward and courts seem to have looked in detail at financial standing

This analysis explains the situation better than I can:  Assessment of damages in taxi credit hire cases - building on Hussain v EUI - Lexology

If this accurately reflects the true position of the law (and I don't know if it does or not) then I can understand why the third party insurers think it relevant.

If their view is correct and the OP's insurance company is not entitled to claim the hire charges back from the third party, I suppose it comes back to what the OP's policy says about hire charges incurred by the insurer, but which are irrecoverable from the third party.   I think it used to be the case that insurers could try to recover the charges from their insured, but I'm not sure if that still holds.

 

[unclebulgaria67]

Agree with @Manxman in exile

Not sure what advice was received when a taxi was hired, with the expectation the third party would end up paying. 

In this situation, there will be a worked out agreement as to what the third party Insurers will pay and it will be only be the minimum payable. They won't pay the whole cost of a hire vehicle and the OP will be left owing money.

 

[Stay calm. Drink Tea.]

"You haven't helped anybody's understanding by your rather extended narratives. "

Im sorry, Im always being told this... I talk far too much IRL too... Ill try to bullet point answers.

 

"Please can you state again briefly you're understanding of this point in respect of recovering your losses"

As far as I understand, although I am overall out of pocket I have been paid out the current estimated market of my vehicle which is all I am legally entitled to.

Im waiting to be re-embursed for the physio treatment and my loss of earnings for 12 working days whilst I was waiting for a hackney plated replacement vehicle to be supplied while the vehicle claim was being dealt with. Apparently, 3rd party has admitted full liability, Im just waiting for the solicitors to recieve a medical report for which I yet have to go to, to show I am now currently ok.  Apparently I have to travel to Portsmouth for this.

Its a no fault claim on my part, 3rd party has admitted full liability for the accident and 3rd party insureres have agreed full liability for loss of earnings amd medical costs, so my understanding is that apart from the financial loss Ive suffered in having to buy a new car, I should have no further financial loss/cost. The replacement vehicle that was provided for me by the insurance company so that I could continue to work while the claim was resolved would i have always understood and believed, to be of no cost to me.

 

"Is this what you have been told by the insurance or is this some understanding  that you gain from somewhere else."

I assume you are asking about my explainantion of the possible outcome of the issue with the cost of the hire car. What I have written above is 100% what has been explained to me by the people who have phoned me and whom I have phoned back from Aviva, my insurers, and the car hire division of Aviva.

 

"Have you read the case? If so what is your interpretation of it? "

I believe the gist of it is:-

Even though the 3rd party driver admitted full liability for the accident and the 3rd party insurers (KGM) have already admitted full liability for the vehicle costs, the loss of earnings and medical costs, if the 3rd party insurers can prove my vehicle was a solely business vehicle and not used for social domestic or private use, OR the 3rd party insurers can prove that I had enough finances that I could be deemed to have afforded not to work for the duration of time the hire car was provided, then the 3rd party insurer has liability to pay for the hire car removed and is no longer required to pay for it.

.

 

 

[Manxman in exile]

Hi @Stay calm. Drink Tea.  -  I don't have any expertise in the area of insurance law but I'm afraid that I (and I believe @unclebulgaria67 ) think that what you say above is correct.  Whether that is an accurate reflection of the current state of the law, I simply don't know.

It's a pity nobody else seems to want to contribute, but I think you should wait to see what other posters suggest before committing to any particular course of action.  As @BankFodder said, don't be in a hurry to sign anything or accept any settlement.

However, I do think that if I were you I'd check the terms and conditions of both my insurance policy and the taxi hire agreement (if you have one) to check what happens if your insurer/hire firm can't recover the hire fees from the third party.

Have you actually asked your insurer what would happen in that case?

As I say, see what help others can contribute

Further to my post just now, are you a member of a trade body or anything like that that might be able to give you advice?

[unclebulgaria67]

@Manxman in exile

Agree, you need to ask the question to Aviva.  What happens, if the third party refuses to pay the full cost of the hire vehicle ?   

Ask Aviva to confirm in writing an answer to the above question.