Luckily, I sustained fairly minor injuries but the case has turned into a nightmare on two grounds. The first is that I didn’t use my fully comprehensive insurance and used what I was told were ‘credit repairs’ – ie, my bike would be repaired by an accident management company, not by my insurer. The credit repair bill with storage and engineers’ charges looks extortionate to me, and the other guy’s insurers are making a fight of that.
The second issue is that the other driver has formally said in his defence that I’m partially to blame because I was speeding, not paying attention, failed to brake, swerve or steer out of danger and my riding was a ‘contributory factor’ to my own losses. I am seething about this. Is this slander or libel?
Answer
Let’s unpack the two issues. Your bike was fully-comp insured. You really should have let your fully-comp insurers repair the bike because they have a real interest in getting your bike written off or repaired as soon as is reasonably practicable because they’re paying for storage.
If you go the ‘credit repair’ route, the repairers are making an easy £175 per week storing your bike, then charging top dollar for the repairs, moving the bike around and commissioning engineers’ reports, because this is a revenue stream. To your insurers it is an expense they are picking up. The other party’s insurers are very well known for fighting these ‘credit repair’ claims and have their own expert evidence that says the repairs should have been about 40% of the price your credit repair people are claiming, from a franchised workshop that says your bike would have been turned around in about 10 working days, not 70.
They are assisted by a precise parts list and booked rates from your bike’s manufacturer as to time spent on repairs; and the repair costs do seem extortionate. If this case punches on to trial, I strongly suspect the judge will find the costs are extortionate and you’ll recover only the reasonable repair costs. Looking at your credit repair contract, you are liable for the shortfall.
Whether or not the credit repair people come after you for the shortfall is a matter for them, but all of this would have been avoided had you used your insurance. Your insurers would have settled up with the other driver’s insurers at the end of the month for their outlay, reinstating your no-claims discount. I suspect there would have been no fight on blame because it would have been a far more modest claim.
The other side’s insurers are usually okay in dealing with regular claims but make a point of fighting hire or credit repair claims – with some success.
County court judges, who hear these cases every day, are well aware of how crashes are monetised. The test in law is damages reasonably flowing from the harm, not how much of a turn an accident management company can make.
As to the ‘contributory negligence’ point, you have not been defamed. Defence lawyers can put before the court any arguable case they wish: it is for the judge to decide if you have done the things you’re accused of. The driver and his insurers need to prove you were speeding or could have avoided the situation the driver put you in. I don’t think you have anything to worry about – this is posturing.
Annoying for you, no doubt – but this is a conversation I have with clients who are totally blameless. One lad who was driven over from behind while stationary was alleged to be contributory negligent, but it was soon dropped.
It can be comical. In my very early days of practice, a defence was run that a VFR750 reversed at speed into a stationary car and the driver was horrified to see the reversing light come on. That didn’t get very far either. Sadly, in our adversarial system of law, we lawyers can pick a pointless fight in an empty room. It annoys the hell out of judges and it is not a clever tactic.
Andrew Dalton
RiDE Magazine – December 2023
