A driver pulled out in front of me at a T-junction. I had right of way. The driver clipped me, and I landed hard on my right hand side, breaking my forearm and collar bone. Both have healed up pretty well.
The police did not prosecute the other driver, but advised him to take a driver improvement course which he did. So far, so easy. I instructed a law firm I saw on daytime TV and they were happy to take the case on and would not charge me anything. Most other firms wanted to take 25% of my award so I made a decision which I thought was a no brainer.
They told the other driver’s insurers about the claim and now the other driver is alleging speed against me, something he never said to the police, and they are saying that I should have my claim halved. The daytime TV lawyers seemed very unwilling to push my case on or even get the police report.
The police clearly thought the other guy was to blame and now I am left being told to take half my compensation and half the repairs to my bike, and Ducati spares do not come cheap. But the person representing me who describes herself as a “litigation assistant” has said that as the police did not prosecute there must be something in the speed allegation so I should follow her legal advice and accept a 50/50 split. Am I being done over here?
Answer
In short, yes you are. And in life usually if a service is free it is because it is worthless. These claims factories are not charities. If everyone is charging 25% and these people are not then ask yourself why. You have not got “legal advice” from anyone.
The police do not decide who is to blame for a collision. Moreover no such inference could ever be drawn from the police offering a driver improvement course. The police would never suggest a driver improvement course implies the victim is to blame. This is Grade-A cobblers.
The allegation made is that of speed. Your daytime TV specialists have not even got a police report, so I cannot tell you whether or not there is any evidence of speed against you, but let’s work on the assumption there is not.
The driver of the car will have to show that on the balance of probabilities it was more likely than not that you were speeding. The mere fact that you were on a motorbike is not of itself proof of speeding. I also note that your bike is repairable and your injuries are fairly typical of a low speed tumble. I have broken my own collar bone at 20mph on a dirt bike.
The fact that your daytime TV claims monkeys, I won’t call them solicitors or lawyers because I doubt your case has ever been near a lawyer, have said that they will do the work without touching any of your award suggests they are limited to a set fee, without going to court, which for injuries like yours is unlikely to be more than about £1,100 if they bottle it now.
Therefore if they take a 50/50 now and do no more work they will be getting rather more per hour back than if they take your case on to trial. I know the outfit you are dealing with. They have a terrible reputation for falling at the very first hurdle, and insurance companies know this. They have no lawyers. They do not know how to take a case to court because going to court requires some basic lawyering skills. Pressing buttons on a computer and talking rubbish does not require any skills.
At the very least you are entitled to ask for an opinion from a qualified lawyer, or say to your current claims monkeys that you are not willing to follow their advice, and unless they have an opinion from independent counsel setting out why they advise that you should take a 50/50 split on what amounts to an allegation, not evidence, then you will take your case away from them and give it to somebody who actually has the skills, knowledge and bottle to take your case to trial.
The fact that the other driver was willing to take a driver improvement course is certainly something which assists your case but it does not prove liability. All it means is that the driver accepted he did something wrong and a driver improvement course would probably be a good thing for him. It is not the same as a criminal conviction, which is admissible in evidence and carries the presumption that the criminal conviction, if relevant (as would be in this case for driving without due care), is taken as proven and primary liability really cannot be argued. Acceptance of a driver improvement course is not “proof” that the other driver is in the wrong.
Insurers know who the claims monkeys are who will accept a ridiculous offer such as this, or settle at a massive under settlement, simply so that they can get their fee. Unfortunately you have got one of these organisations, and the best thing you can do is get rid of them and go to somebody who actually knows what he or she is doing. You got something worthless so no wonder you didn’t pay for it.
Andrew Dalton
Fast Bikes December 2017
