I accept I was doing probably 20mph over the speed limit. I hammered the brakes on as hard as I could but, of course, the inevitable happened. I have a modern bike and I am a competent and experienced rider. However, an impact was unavoidable and I was seriously injured.
I am struggling a bit understanding my current solicitor’s advice – well, the advice comes from a QC and it says I may be found guilty of ‘contributory negligence’ for speeding but while this is a strong possibility, there is also a good chance that my speed may be found “not to be causative”. Following this, I am none the wiser.
I have asked my solicitor for an explanation and he tells me to re-read the QC’s opinion. I don’t have a law degree and I am totally confused. Should I take a hit or not?
The QC’s advice was aimed at a lawyer, not a client. The advice is easy for me to read and understand as a lawyer but I bet you don’t hear the words “causative potency” in your case. The concepts are simple and easy to understand when they are put into plain English.
So, let’s see if I can manage it. The camper-van driver, like all road users, owes you a duty not to drive into your path. He patently did not see you. You had to be in his sight for 400 metres according to the good report carried out by the ex-police collision investigator who did the sketch plan and photos. There is no way he cannot have seen you had he looked but if he looked, he missed you. You know the rest.
So, he is to blame and he must prove two things to reduce the claim his insurers must pay to you.
The first of these is that you were speeding. You admit that and said as much to the police yet that does not worry me. You come across as honest and there is some witness evidence which makes me think it was always likely the trial Judge would find you were speeding. Your QC and I agree on that.
Secondly, he must prove that your speed contributed to the accident – and I agree with the QC’s advice. If the accident would have happened, even had you been traveling at the speed limit, then the second test of contributory negligence cannot be made out. Your QC gives a “six of one, half a dozen of the other” type advice and I do not blame him.
He says it is a realistic possibility that the court will find your speed was partially causative of the accident but on balance, he says the defence will not be able to show this but when you come to consider settlement, take into account this is a real risk at trial. A trial lawyer will tell you they’re unpredictable.
The OC says; “You will be found to have been speeding, but I don’t think the Judge will find your speed had any impact on the collision. I could be wrong on that point so be aware that when we get to offering to conclude the case, there is a risk you could lose at the very worst, half the value of your case. You could quite easily lose 25% of the value of your case but I think it is more likely you will win altogether but don’t ignore the risks when we try to settle.”
Neither I nor your QC have crystal balls. He is suggesting making a formal offer of around 85% of the value of your claim on a good day – I think his advice is spot on. You could do better in Court but you could also do worse, so making an offer which has a realistic analysis of the risks is, in my view, advice you should follow.
RiDE Magazine February 2022