Hit from behind while commuting - advice please!

Commuting, Day rides, Audax, Incidents, etc.
thirdcrank
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Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 11 Jul 2020, 11:57am

It's not clear to me whether you wish to make a personal injury claim. Even if you don't, be aware that an apparently minor injury may turn out to be more serious.

From what others have said on earlier threads, even if you are a member of an organisation offering some form of legal assistance, if it's a damage only claim for the bike, then the only help from the learned friends will be guidance on making the claim eg filling in the form.

Bearing in mind that the procedure is intended to be straightforward, that bit ought to be easy for somebody with the literacy skills displayed in the OP. OTOH, a claim like this isn't just a matter of submitting a form and waiting for the bunce. I think this by stoobs from my earlier link goes to the heart of it:-

... Now, having said how SIMPLE it all is, you need to ask yourself these questions. Don't answer them here:

In a court office where you have to convince on the balance of probabilities, how are you going to convince the judge that you are more in the right than the driver. Given the circumstances, you would have to invoke the HC rule that tells drivers to watch on bothe sides in slow-moving traffic, and also state why you were not overtaking on the outside.

You will need to state why his signal was invisible or too late.

You will need to state why your speed was appropriate, and why the driver's actions were inappropriate.

I'm sure there are other issues, but the ultimate question is "Do you think that you can win this?"

Cowsham
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Re: Hit from behind while commuting - advice please!

Postby Cowsham » 11 Jul 2020, 12:12pm

fastpedaller wrote:I hope the Police prosecute him. If so his guard may slip in court, and strengthen your case against him/the insurance company.
I had similar happen to me 40 years ago. Guy drove off and denied all knowledge. Police prosecuted, and in court he was asked if he knew the road it happened on was a narrow road. Remember he'd denied all knowledge, but had stated he'd driven on that road in his journey. His (under pressure) response was "not at that point" to which the Police said "so on your journey along this 2 mile road you didn't see any cyclists, but you know where along the 2 mile road the incident happened?" he was nailed good and proper (but only got £100 total fine + 3 points). 18 months later the solicitor 9supplied by then BCF) still couldn't get the compo out of him - he also hadn't told his insurers, who (at the time) could absolve themselves - I believe that isn't the case now. Exasperated, I phoned his solicitor and said "I'll get recompense, legally or illegally" they asked me to elaborate, so I just said "use your imagination". I was at the end of my tether, and my thoughts were that a case for 'threatening' was unlikely to be pursued because the legal system had 'let me down'. Maybe I was naive/wrong, who knows, but I got payment within the week.


There was a penalty points system in 1980?

Cowsham
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Re: Hit from behind while commuting - advice please!

Postby Cowsham » 11 Jul 2020, 12:41pm

Unless you can find a witness or other evidence you'd be ill advised to take legal action which could cost you the price of a very expensive bike.

I made the mistake of phoning the police after a car accident which wasn't my fault -- I was the one that got done over by the courts as I didn't consider that the driver at fault would change their story after admitting to me she was clearly at fault apologizing profusely at the scene.

Fix your bike but ( get a camera which is what I'm doing before it happens to me.)

fastpedaller
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Location: Norfolk

Re: Hit from behind while commuting - advice please!

Postby fastpedaller » 11 Jul 2020, 2:54pm

Cowsham wrote:
fastpedaller wrote:I hope the Police prosecute him. If so his guard may slip in court, and strengthen your case against him/the insurance company.
I had similar happen to me 40 years ago. Guy drove off and denied all knowledge. Police prosecuted, and in court he was asked if he knew the road it happened on was a narrow road. Remember he'd denied all knowledge, but had stated he'd driven on that road in his journey. His (under pressure) response was "not at that point" to which the Police said "so on your journey along this 2 mile road you didn't see any cyclists, but you know where along the 2 mile road the incident happened?" he was nailed good and proper (but only got £100 total fine + 3 points). 18 months later the solicitor 9supplied by then BCF) still couldn't get the compo out of him - he also hadn't told his insurers, who (at the time) could absolve themselves - I believe that isn't the case now. Exasperated, I phoned his solicitor and said "I'll get recompense, legally or illegally" they asked me to elaborate, so I just said "use your imagination". I was at the end of my tether, and my thoughts were that a case for 'threatening' was unlikely to be pursued because the legal system had 'let me down'. Maybe I was naive/wrong, who knows, but I got payment within the week.


There was a penalty points system in 1980?

Three counts - failing to stop, driving without due car, failing to report. Total fine £100 plus 3 point (unless my memory fails me).
ETA a search tells me points were introduced in 1988, so my memory has failed me :(

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Wanlock Dod
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Re: Hit from behind while commuting - advice please!

Postby Wanlock Dod » 11 Jul 2020, 3:46pm

I thought that this kind of situation was the only one where there is a strict liability assumption as far as incidents on roads in this country are concerned, these sources would seem to confirm that.
https://www.injurylawyers4u.co.uk/2014/news/the-rear-end-shunt-is-the-following-driver-always-to-blame/
https://www.slatergordon.co.uk/media-centre/blog/2015/06/driving-into-the-back-of-someone-is-it-always-your-fault/
https://www.digbybrown.co.uk/news/rear-end-shunts-who-is-at-fault
Bicycles count as vehicles so I don’t see why it wouldn’t apply here, or does that only count when people riding bikes are being punished for offences?

thirdcrank
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Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 11 Jul 2020, 4:39pm

From the Digby Brown link

... In a case involving a rear end shunt, there is a presumption of fault on the part of the driver of the vehicle at the rear.

It would be easy to assume if your vehicle is shunted from the rear by another vehicle that you will automatically win your personal injury case and receive compensation for your injuries and other losses.

However, as with all personal injury cases, the burden of proving fault lies with the individual pursuing the claim who must prove how the accident occurred and how the other driver is at fault.

Cases which initially appear straightforward can become more complex when detailed facts emerge. ...


I interpret that as implying no matter what the overall principle may be, any decent learned friend can find exceptions.

I'd suggest that as a general rule, you are unlikely to find a firm of lawyers both suggesting DIY and giving detailed advice on how to do it.

fastpedaller
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Location: Norfolk

Re: Hit from behind while commuting - advice please!

Postby fastpedaller » 11 Jul 2020, 6:13pm

A driver should allow at least 1.5m when overtaking, so to say the OP swerved is stretching his story. If the driver was innocent, then why did he try to get away?

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Graham
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Re: Hit from behind while commuting - advice please!

Postby Graham » 11 Jul 2020, 10:04pm

The OP was last logged in a few seconds after posting this.
No feedback, response or thanks . . . . (yet)

Cowsham
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Re: Hit from behind while commuting - advice please!

Postby Cowsham » 12 Jul 2020, 12:13am

Graham wrote:The OP was last logged in a few seconds after posting this.
No feedback, response or thanks . . . . (yet)


Maybe he's waiting for someone to come up with an optimistic way forward with his dilemma. I don't think there is one frankly. Cut your losses time.

tim-b
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Re: Hit from behind while commuting - advice please!

Postby tim-b » 12 Jul 2020, 7:05am

Hi
This is also on the STW forum, dated from three weeks ago. I've made my contribution here (I just lurk there)
Regards
tim-b
~~~~¯\(ツ)/¯~~~~

thirdcrank
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Joined: 9 Jan 2007, 2:44pm

Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 12 Jul 2020, 10:36am

tim-b wrote:Hi
This is also on the STW forum, dated from three weeks ago. I've made my contribution here (I just lurk there)
Regards
tim-b


That's reassuring to know. I've read through the thread on that link and it clarifies the reason for the OP posting on here. (I've posted before that I'm always on my guard over first time, one-time posters who have a controversial topic.)

My summary of the story so far is that in the apparent absence of personal injury, there's no route to any form of no-win, no-fee legal help. It's been pointed out that it's the driver who's the third party here, not their insurance company but I'm not sure that makes much difference once the insurance company has become involved. (The suggestion that they did not notify their insurer immediately is a contractual matter between insured and insurer, ie irrelevant to the OP.) It may or may not put the wind up the other driver to receive the compo claim direct but their contractual duty will be to pass it to the insurer anyway.

It's one of the thoroughly rotten features of our legal system that ordinary people are deterred from becoming involved and insurers and regular litigants milk that.

There's sometimes misunderstanding about what's needed to win a case. The first and not always obvious thing is that there has to be a case to win. Here, both the driver and the OP had a duty of care to the other ie along the lines of taking care not to crash into them. Then the OP's claim is that the driver did not exercise that duty of care in that there was a collision. The driver might always counterclaim making the same point, but has been slow to do so.

For the insurer to deny liability is AFAIK completely normal. People may find that distasteful but that's how it is.

AIUI, the OP can either put this down to experience or pursue a claim. (I've read so much about this that I'm unclear whether the police have filed this or whether criminal proceedings are still a possibility. The wheels grind slowly and the lines of communication are almost non-existent - right hand virtually unaware of the existence of the left hand.) There's value in waiting for the outcome there, not least because I believe the insurers will.

It may well be that faced with a determined litigant, especially one not fazed by the idea of court, the insurer will stump up the peanuts of a damage-only claim for a bike, supported with credible evidence of the cost of making good the loss caused by the crash. It wouldn't be cost-effective to pay the tea-trolley person to fight, never mind a learned friend.

Remember, the system is designed to reward negotiation so rushing to start proceedings is not advisable as an opening tactic.

The big advantage of a judge-only hearing on the balance of probabilities is that in a one-against-one situation, it largely comes down to who do they believe: whose evidence is the most credible? An experienced beak should be able to spot an unreliable witness, AKA a fibber in layperson's terms. That's always assuming the insurers don't do so sooner.

axel_knutt
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Re: Hit from behind while commuting - advice please!

Postby axel_knutt » 12 Jul 2020, 1:46pm

I got the application forms for the Small Claims Court once about 15-20 years ago, and the information pack that came with them said that the SCC has no powers to enforce it's own rulings. If the defendant knows that and chooses not to pay, it said that your only recourse is to the County Court, thereby incurring all the legal costs that the SCC was supposed to have been avoiding in the first place.
“I'm not upset that you lied to me, I'm upset that from now on I can't believe you.”
― Friedrich Nietzsche

thirdcrank
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Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 12 Jul 2020, 2:44pm

I suppose it's nit-picking to say that with the reorganisation which made the Small Claims Court a track of the County Court, a claim is already there, but enforcement attracts fees which are recoverable from the other party, assuming they have the money to pay.

fastpedaller
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Re: Hit from behind while commuting - advice please!

Postby fastpedaller » 12 Jul 2020, 3:07pm

My plan (if I was the victim) would be to pursue the Police to make a prosecution, and stressing the aggressive beeping of the horn and the belief that driving into the bike was deliberate act. If this went to court (criminal prosecution) the defendant may well trip himself up by saying something along the lines of " I didn't see him" leading to 'then why did you beep your horn?', followed by 'If you had time to beep, then you could have stopped without hitting him'. I think the defendant would be stumbling and lost for words by then!

slowster
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Re: Hit from behind while commuting - advice please!

Postby slowster » 12 Jul 2020, 4:06pm

axel_knutt wrote:I got the application forms for the Small Claims Court once about 15-20 years ago, and the information pack that came with them said that the SCC has no powers to enforce it's own rulings. If the defendant knows that and chooses not to pay, it said that your only recourse is to the County Court, thereby incurring all the legal costs that the SCC was supposed to have been avoiding in the first place.

That is not relevant in this situation. The other person has motor insurance which will pay if they are found liable.

thirdcrank wrote:It's one of the thoroughly rotten features of our legal system that ordinary people are deterred from becoming involved and insurers and regular litigants milk that.

thirdcrank wrote:For the insurer to deny liability is AFAIK completely normal. People may find that distasteful but that's how it is.

thirdcrank wrote:The big advantage of a judge-only hearing on the balance of probabilities is that in a one-against-one situation, it largely comes down to who do they believe: whose evidence is the most credible? An experienced beak should be able to spot an unreliable witness, AKA a fibber in layperson's terms. That's always assuming the insurers don't do so sooner.

Although motor insurers tell their customers that in the event of an accident they should not admit fault to the other person, that is because some people may do so even though they were not at fault, possibly because either they are by nature overly self-effacing and apologetic - the sort that will apologise if you walk into them - or are so shaken up by the accident that they are not a good judge of whether they were to blame.

Neverthless, in many cases the driver will admit to their insurer that they were at fault, and if it's clear from their account of what happened that they are not being too quick to accept blame, the insurer will not quibble about liability (although the amount of compensation might still be the subject of dispute). For example, when someone drove into my car while I was stationary their insurer rang me to confirm that their driver had admitted responsibility and to ask if I needed them to arrange for me to have a hire car.

If their customer believes that they were not at fault, the insurer is duty bound to accept their customer's version of events to begin with. It's not the insurer's role to act as the judge and find against their customer, and make a payment to the claimant against the wishes/instructions of their customer. If they did so at that stage they would be in breach of contract, and could get themselves into a lot of trouble for acting without authorisation. If the claimant were to provide evidence that undermined their customer's version of events, then they would put that to their customer and ask for their response, and if appropriate tell their customer that they would lose if it went to court and ask their customer to agree to let them settle the case.

Once a writ is issued that changes. From that point the insurance policy terms entitle the insurer to decide whether to defend the claim or accept liability, a decision which it will take based on its experience of handling many such claims and based on expert legal knowledge (of the claims handlers and - for contentious expensive claims - a QC's opinion). If they consider it sufficiently likely that they will lose (on a balance of probabilities) and that the costs of defending the claim would just be a waste of money, they will seek to settle at that point without going to court.

In this case we only have the OP's version of events, but based on those it does sound like the OP's account is - on a balance of probabilities - more likely to be true than the driver's, i.e. hit from behind versus overtaking, cutting in front and presumably then braking/slowing (how otherwise would the front of the car have made contact). The latter version requires the OP to have acted in a dangerous manner that would put him at risk of severe injury. Most people's natural sense of self-preservation makes such behaviour very unlikely; certainly less likely than a driver being careless and going into the rear of another road user (whether car or bike).

Whatever the driver told the police when they stopped him may also strongly influence the judge's view of the credibility of the driver, and his account of the accident. If the driver admitted to the police that he did not stop, i.e. a criminal offence (regardless of any decision by the police not to prosecute), I would expect a judge to be entitled to draw an inference from that about the driver and their standard of driving, i.e. not 'law-abiding'. I am fairly confident that the OP would be able to get a copy of that police report to submit as part of his evidence.

That all said, how the OP and the driver presented themselves at the court could be decisive. If the OP were to come across as aggressive, immature and a risk taker, he could easily sway the judge to disbelieve his account, but the same is true of the driver.

Based on the OP, I would be willing to bet a small amount that if the OP goes to the trouble of getting a copy of the police report and submitting a claim to the SCC (or whatever it is now called), the driver's insurer will accept liability rather than paying the costs of a solicitor to represent the driver and attend the court hearing.