Knock out blow

Knock out blow

What happens if you have no memory of an accident? Do you just make it up? Will the courts buy your version of events?

I was involved in a serious motorcycle collision. I was knocked unconscious and for a long time I had no recollection of the accident, but through dreams and flashbacks I have worked out what happened in my case.

I was riding along when an oncoming vehicle cut into my path and forced me to clip the kerb. I have had therapy from a hypnotherapist to release these memories. I am a very skilled rider and additionally I have been taught how to do stunts by professional stunt riders. I do not make any mistakes when I ride and this accident could not have been my fault.

I have been to four solicitors, all of whom say they will not help me and I do not know what to do. I do not think I will ever work again, or at least not anything like I did. I have been diagnosed as having a permanent brain, back and hip injuries.

Name Withheld

Answer

In the papers you gave me, one of the solicitors has done a lot of work trying to find evidence which backs up your original case. However, you have wrecked your own case by allowing yourself to speculate what happened, we lawyers have a tag for it ‘ex post facto rationalisation’ or in English, making it up to suit your case.

In English law, you have to prove another person was to blame for your case. You are saying an untraced driver caused your crash and it’s not surprising you cannot recall the collision or the events leading up to the collision as you sustained a serious head injury. You didn’t raise your ‘theory’ as to another vehicle forcing you off the road until many months after the collision and it follows your original case that you were struck by a hit and run driver.

In order for you to bring an untraced driver’s claim you will need to prove that it was more likely than not that another vehicle was involved. Worryingly, your case has changed from ‘I do not know what happened’ to ‘I was struck by another vehicle’ to the last version that was ‘I had to avoid another vehicle in my lane’. Your story changed when the evidence did not meet your original case and your solicitor decided he would not run your case, and I don’t blame him.

Because you have no individual to sue you will have to put your case before the Motor Insurer’s Bureau where a senior barrister (a QC) will consider your case and the first question the QC has to ask is ‘what evidence is there of this man’s motorcycle being forced off the road by a car?’.

The answer here is none. You have also given two incompatible versions of how the collision occurred. Your position that you cannot make a mistake is not likely to go down very well with the QC, but he will apply the law fairly. But I cannot see you being able to get any QC to accept that it is more likely than not that a third party car was involved in the lead up to the collision. You may well be right, and it is an explanation, but it is an explanation that you cannot bring any evidence to support.

I would not be willing to take your case on a ‘no win, no fee’ agreement and any solicitor who takes money off you to run your case would be bound to tell you your case is about as close to hopeless as any case I have seen.

You have been very unlucky. Your original solicitor spent a fair bit ofmoney on some excellent medical reports and your life has been shattered by this accident, but you have no prospect of showing how it happened so you will never be able to make any sort of legal case. It is obvious to me that once your story started changing, he felt he could not continue running your case.

It looks to me that you have got evidence in and then you have filled in the gaps. I do not suggest you have done this dishonestly. The brain hates gaps in memory and I have had clients who have been absolutely adamant an accident occurred in a certain way and the evidence is overwhelming that it happened in another way – and the witnesses are totally supportive of the motorcyclist being right – the memory plays strange tricks but you are still left with a very serious injury and no method of proving how it actually happened.

Andrew Dalton

Fast Bikes

May 2016

Posted by Andrew Dalton. Posted on: June 9, 2016 at 12:00 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.

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