Ahead of me I could see a stationary doubledecker bus. This is what passes for a regular bus route in Cornwall, so I was not surprised to see it out. Because the bus was stopped, there was a chance that the bus might reverse if there was some Emmet with a caravan or a campervan in the opposite lane, who cannot reverse like a Cornishman.
I stopped about 60m behind the bus, and about 20m behind a 90-degree bend. The bus was stationary, but then a little Fiesta van came haring round the bend, in reverse, and smashed straight into me.
The claim, I thought, could not get any easier. I’ve got quite a nasty collection of injuries. It now turns out that Fiesta boy is denying reversing. He says that I rode into the back of him. There are no witnesses as far as I can tell. The police did turn up, and Fiesta boy said the same thing to the police, namely I went into the back of him when he was stationary and he never reversed.
I told the police he reversed into me at pace. The police have said they are taking no action but one of the coppers while waiting took a fair few photos of the collision scene when he realised the two of us were saying very different things. Fiesta boy is also local. The Cornish gossip drums are beating.
My solicitors are saying that I should be offering an equal split of blame on the basis not that I did anything wrong, but I might not be able to prove my case and unbelievably he is saying it is a real risk I could lose altogether. What should I do? It has been eight months and I want some answers.
Answer
For what it is worth, I think your solicitor’s analysis is logical but this discussion is premature until you get the police report which might reveal rather more and the photos, even if taken by a non-specialist officer might reveal a lot.
As a general proposition where there is one word against another, you as the claimant carry the burden of proof. You must show that the Fiesta reversed into you. This does mean that Fiesta boy is going to have to come to court and perjure himself if your version of events is true.
Your solicitors, if they have not done so already, could approach the bus driver. You have the bus registration number from the note the police gave you waiting for the ambulance to turn up. Where a case is finely balanced, if the bus driver says he is aware that the Fiesta was reversing then you will win and the reality is that Fiesta boy will not go to court and perjure himself, potentially facing a prison sentence.
However, while his solicitors will warn Fiesta boy about the terrible consequences of lying to the court, before the judge would even consider sending a liar to prison, the judge will have to find, to a high burden of proof, that the liar was lying as opposed to him preferring your version of events which is a very different thing.
While the threats for lying in court sound terrible, except in the clearest cut of cases, judges tend to be quite slow to send people to prison on suspicion of lying as opposed to copper-bottomed proof of lying.
Bearing in mind your injuries, I would not be making an offer, even if it is one which has a legal justification. This is more a matter of solicitors’ risk averseness and how deep they are prepared to dig. Or it could be you not giving the solicitor time to get information and demanding an answer.
Different solicitors have different appetites for risk. I think your solicitor at least discussing with you making a 50/50 offer is a rational thing for the solicitor to do as you are pressing him for a solution but that is not a wise thing to do. Your injuries are nowhere near recovered yet so until your body is at least stabilised, you and your solicitor would be daft to try to wrap up your case now.
Were I advising you, absent any offer on the table from Fiesta boy’s insurers, I would advise you to make no offers and take your chances in court but first get a forensic engineer to look at both your bike and, If available, the Fiesta. If your motorcycle reveals forensic clues as to it being pushed backwards, rather than striking and bouncing off a stationary vehicle, that may well be enough to tip the scales wholly in your favour. Also, if the road reveals scratches and gouges, a forensic inference can be drawn from these.
A trapped bike under a car is going to leave deep gouges for a short distance, a bike just skittling off a car will leave shallower marks, usually over a longer distance. Your level of injury warrants a forensic Investigation – there might not be much and these reports are not like CSI – these engineers are not magicians and they can only draw forensic conclusions from what is left at the scene and a judge decides what happened.
The Fiesta may also give up some clues, even from the engineer’s photos from the repairs carried out – but if it was a young lad with third party insurance, those photos might not exist but the police ones should surface, eventually. Offering 50-50 also means that you are going to presume that Fiesta boy is willing to come to court to save his no claims bonus and to risk a prison sentence.
Your solicitor’s analysis that you could lose altogether or win flat out is correct. The point of a trial is for the judge to get to the best approximation of truth the court can get to with the available evidence.
It is hard to keep up a lie under cross-examination. Judges have good but not infallible bullshit detectors. There is scope for the judge to find 50/50 even if the judge struggles to determine what happened. You only have to prove your version of events is marginally more credible than Fiesta boy’s.
I strongly suspect forensic examination will strengthen your case. Get some and if your solicitor is not with me on this, maybe get a new solicitor. The legal analysis is correct but it shows skills no greater than a law undergraduate.
The solicitor’s job is to work out how to prove your case. There is a path which screams out to me. It should be screaming out just as loudly to your current solicitor. 50-50 now does seem to me to be a dangerous path of least resistance for your current solicitor who may simply not have the skills or experience to analyse and use the available evidence.
However, if he is saying this is because you are pushing him for an answer or an early settlement then his advice is correct. Good outcomes tend to come to those who wait until the evidence is settled and there is almost nothing your solicitor can do to get the police report apart from wait patiently.
Andrew Dalton
Fast Bikes Magazine May 2021
