Hit from behind while commuting - advice please!

Commuting, Day rides, Audax, Incidents, etc.
belgiangoth
Posts: 1389
Joined: 29 Mar 2007, 4:10pm

Re: Hit from behind while commuting - advice please!

Postby belgiangoth » 12 Jul 2020, 4:13pm

Wishing you good luck with this. I would have thought that he should be charged with failure to stop at the accident, which should prejudice him in later court actions (on the balance of probabilities if you have been to blame why did he run off and not tell his insurer).
If I had a baby elephant, it would point out that there is no evidence for planing. Then it would eat all my bananas.

thirdcrank
Posts: 29041
Joined: 9 Jan 2007, 2:44pm

Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 12 Jul 2020, 4:39pm

On my "thoroughly rotten" point and only in relation to civil (compo) I can only repeat my own limited experience which I have recently referred to somewhere on the forum.

Almost 30 years ago, I had a car written off under me when I was shunted. Even in those days, the police had pretty much abandoned prosecuting drivers in such cases and to be fair, following the policy I've personally filed plenty of such crashes "momentary lapse of attention." Had I not done so, the investigating officer would have prepared the full file, only for a representative of the Charity for Pauper Solicitors to do the same.

Anyway, in those days the national office of the Vehicle Builders and Repairers Association (was here in Gildersome.) That was before No-win, no-fee
They had recently teamed up with the insurers trade body to provide vehicle rental and legal representation to anybody in an obvious situation like mine. I couldn't get through to the call centre on the phone so, complete with my surgical collar, I limped round to the VBRA office and because the people in reception were at a loss, somebody who I later discovered to be a top man came out and when he'd heard my tale, told somebody to fax the people who dealt with the car hire side and I had a nice hire car in no time.

Time passed, the insurance claim for my car paid up and in the fullness of time, I had a call from a lady solicitor in Liverpool IIRC (I'm in Leeds.) She explained that the case had hitherto been in the hands of clerical people and she had only just received it. She told me that the sum offered was in her opinion inadequate but I would only get more by showing a willingness to go to court.

On hearing that I had given evidence at Leeds Assizes and Sessions, as well courts as numerous magistrates' courts and that I was an experienced prosecutor ie no fear of courts, she said she would ring back which she did, with details of a much bigger offer - almost double IIRC.

That's why I say it's rotten.

Even though the scheme which helped me was set up partly by the insurers themselves, I know from law reports from around that time that insurers opposed such schemes bitterly on the grounds of "champerty." Learned friend lingo for supporting a litigant; something rich litigants don't like because it gave the less-wealthy access to the courts.

Jdsk
Posts: 1242
Joined: 5 Mar 2019, 5:42pm

Re: Hit from behind while commuting - advice please!

Postby Jdsk » 12 Jul 2020, 4:43pm

slowster wrote: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.

belgiangoth wrote: I would have thought that he should be charged with failure to stop at the accident, which should prejudice him in later court actions (on the balance of probabilities if you have been to blame why did he run off and not tell his insurer).

In England the relationship is explicit in the Civil Evidence Act 1968:
"Convictions as evidence in civil proceedings."
http://www.legislation.gov.uk/ukpga/1968/64/section/11

Jonathan

belgiangoth
Posts: 1389
Joined: 29 Mar 2007, 4:10pm

Re: Hit from behind while commuting - advice please!

Postby belgiangoth » 12 Jul 2020, 5:20pm

I should add that my previous post was well-wishing and commiseration. I have no legal knowledge!
If I had a baby elephant, it would point out that there is no evidence for planing. Then it would eat all my bananas.

superficial
Posts: 14
Joined: 10 Jul 2020, 9:04pm

Re: Hit from behind while commuting - advice please!

Postby superficial » 12 Jul 2020, 11:08pm

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

Yes - thanks I am still here and reading all the replies with interest. Thank you to everyone who has provided plenty of food for thought, t really is appreciated.

I neglected to mention that I'd posted my story elsewhere out of a vague paranoia that the driver might stumble across these threads and work out my gameplan.

I can pay £250 via my home insurance for legal cover. I haven't fully explored this but I was hoping to avoid a £250 cost that I won't see again.

I am very disappointed at the police's decision not to prosecute for failure to stop. The reason they cited is that a driver under section 170(2) of RTA 1980 must exchange details, but "If for any reason the driver of the [F1mechanically propelled vehicle] does not give his name and address under subsection (2) above, he must report the accident [...s170(3): ] as soon as is reasonably practicable and, in any case, within twenty-four hours of the occurrence of the accident. (4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence." The 'or' that I've emphasised is very important. From here: http://www.legislation.gov.uk/ukpga/1988/52/section/170. The trouble is that he has claimed that he was on his way home to report the incident but was unable to do that because he was pulled over by police. Obviously this is crazy; had I not called the police I'm in no doubt would have driven home and denied all knowledge of an accident and I'd have a much smaller chance of pursuing this. The law clearly does not provide adequate protection here (assuming it has been interpreted correctly by the police - which I have my doubts about).

My (lay) interpretation of the law (linked above) is that he has de facto committed an offence under 170(2), and whilst reporting under 170(3) might serve as some mitigation (and in most cases it won't be in the public interest to prosecute in those circumstances), it does not simply mean that a driver can drive away from the scene of an accident. At any rate, he didn't report it. It seems that the police's decision not to prosecute is, essentially, final. However, if I have to get a lawyer I'll certainly be asking them to revisit that.

I've written to my MP about the whole incident and they have written in turn to the Chief Constable to express their concern. I've seen the letter they sent - it's beautifully written and quite aggressive in its tone but I don't know how far they / we will get with that. At this point it seems unlikely that there will be a criminal prosecution.

The small claims court seems like the best approach. I'm fairly convinced that I can present my case clearly and I'd be amazed if they could somehow side with the driver. I think the next step is a further letter (to him? to his insurer?) stating that I intend to pursue via the SCC. Perhaps that will make them pay up. In this letter, do I fully explain my version of events or just keep it brief?

I still do not have the driver's home address ( :x ). I can find the registered keeper's address via the DVLA but I know (from discussions with the police / insurer) that the registered keeper is not the person who was driving at the time. Does anyone know if I can submit the SCC papers to the registered keeper rather than the driver? Or can I submit them c/o his insurer?

What should the next immediate step be?

Postboxer
Posts: 1650
Joined: 24 Jul 2013, 5:19pm

Re: Hit from behind while commuting - advice please!

Postby Postboxer » 12 Jul 2020, 11:20pm

I don't know when the incident was and when the insurers actually got involved but I'm hoping they've only just become involved and that once they get all the information and review it, they will realise it would be ridiculous to dispute it.

Did the driver ask whether you were injured or not before driving off? It seems a ridiculous get out if getting stopped whilst fleeing the scene means he can't be prosecuted for fleeing the scene. Everyone would use it. Seems the law should have some term defining when it's acceptable to leave the scene without providing details.

tim-b
Posts: 1419
Joined: 10 Oct 2009, 8:20am

Re: Hit from behind while commuting - advice please!

Postby tim-b » 13 Jul 2020, 8:21am

Hi
I still do not have the driver's home address ( :x ).

Have you contacted your local police accident/collision admin unit as suggested ^^?
Here's an example of what they'll do for you (link to Durham Constabulary) see the FAQs
Don't delay too much more on this or you'll slow the whole process down
Regards
tim-b
~~~~¯\(ツ)/¯~~~~

thirdcrank
Posts: 29041
Joined: 9 Jan 2007, 2:44pm

Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 13 Jul 2020, 10:08am

superficial wrote: ... What should the next immediate step be?


You need to be completely clear what you want to achieve.

If it's the compo, then preserve evidence, especially evidence of what you have lost so your claim can be accurately assessed.

If you have access to Citizens Advice, they will help with the various steps, first avoiding court where possible but how to make the claim when there's no other way. The CAB seems thin on the ground these days and I suspect Covid19 has made that worse.

Apart from the fact that it refers to the Small Claims Court, this from moneysavingexpert.com seems excellent

https://www.moneysavingexpert.com/recla ... %20More%20

This is the gov.uk stuff. Not as good as it used to be because there used to be more advice on avoiding court

https://www.gov.uk/make-court-claim-for-money

I've deliberately avoided commenting on the criminal law aspects so as not to detract from the main point: getting compo.

slowster
Posts: 1467
Joined: 7 Jul 2017, 10:37am

Re: Hit from behind while commuting - advice please!

Postby slowster » 13 Jul 2020, 10:45am

(2)The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle.

(3)If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident.

(4)A person who fails to comply with subsection (2) or (3) above is guilty of an offence.
...
(6)To comply with a duty under this section to report an accident or to produce such a certificate of insurance or other evidence, as is mentioned in section 165(2)(a) of this Act, the driver

(a)must do so at a police station or to a constable, and

(b)must do so as soon as is reasonably practicable and, in any case, within twenty-four hours of the occurrence of the accident.

As per the relevant parts in bold, the duty to stop is absolute. If he drove off without stopping, he has unequivocally committed an offence. However, it may not be possible to prove that. For example, he may say that he did indeed stop, saw that you were unharmed and decided to drive on and report the accident lo the police from home. Again it probably comes back to the police report and what he said: if he actually admitted that he had not stopped, then it should be an easy prosecution.

Nevertheless, all this is largely irrelevant. His stopping or not stopping, or being convicted for not stopping, is not proof that he was at fault. As I said, it 'merely' indicates that he is not entirely law abiding and is highly suggestive of his character. That is probably all that the judge in a civil claim for damages would be able to infer from the driver's actions. If the evidence you submit as part of a small claims action includes a police report which confirms that he admitted he did not stop, and he did not mention a good reason* to the police officer at the time, that should still help your case even if he is not prosecuted.

(* For example, being afraid because you were behaving in a threatening manner would probably be a good reason, but it would look like a fabricated excuse if he did not tell that to the police officer at the time.)

superficial wrote:I think the next step is a further letter (to him? to his insurer?) stating that I intend to pursue via the SCC. Perhaps that will make them pay up. In this letter, do I fully explain my version of events or just keep it brief?

I am pretty sure the letter would be a waste of time. His insurers are not obliged to do anything in response if their customer sticks by his story to them that you overtook him and swerved in front of him. Once he receives the writ/formal notification of the SCC action, everything changes. From that point a clock starts ticking and within x days he (or rather his insurers acting in his name) must respond. If the time limit is exceeded, there is a vey high likelihood of him/the insurers automatically losing the case by default.

The reponse must either be an acceptance of liability, an acceptance of partial liability with explanation of the reasons, or a denial of liability with explanation of the reasons. They are not allowed to 'reserve their defence' for the actual hearing: they must spell out in detail why he is not liable with reference to whatever evidence they have. The point of these rules is to incentivise litigants to settle before it gets to court: both sides are required to place their cards on the table well before the hearing (new evidence is generally not permitted to be introduced later).

If the driver's case is self-evidently weak and he is likely to lose, his insurer can at that point insist on settling and admitting liability, rather than waste money on a solicitor.

thirdcrank
Posts: 29041
Joined: 9 Jan 2007, 2:44pm

Re: Hit from behind while commuting - advice please!

Postby thirdcrank » 13 Jul 2020, 11:25am

superficial wrote: ... After the driver got out to shout at me, he drove away without exchanging details ...


That seems conclusive to me that the driver did stop. There's nothing explicit in the legislation requiring the driver to remain.

tim-b
Posts: 1419
Joined: 10 Oct 2009, 8:20am

Re: Hit from behind while commuting - advice please!

Postby tim-b » 13 Jul 2020, 11:37am

Hi
After the driver got out to shout at me, he drove away without exchanging details ...

In Lee v Knapp (1966 or 1967) "Stop" is long enough to exchange the necessary details, I don't think that long enough to shout at you counts :)
Regards
tim-b
~~~~¯\(ツ)/¯~~~~

superficial
Posts: 14
Joined: 10 Jul 2020, 9:04pm

Re: Hit from behind while commuting - advice please!

Postby superficial » 13 Jul 2020, 4:19pm

: TLDR : I've responded to a few of the points raised, if you don't want to read that please skip to the bottom for my question

You need to be completely clear what you want to achieve.
AIUI, there are two strands to all of this. He might be prosecuted and / or he might be forced to compensate me. The two are linked in that a conviction may (as has been stated) strengthen my claim for damages, but I can't really influence a prosecution since that is a matter for the police (At least it's my understanding that a decision not to prosecute has been made and I have no say in that?).

What I want, honestly, is retribution at this point. The stress of all this is not worth the cost of replacing my bike, but the whole process has been immensely frustrating seeing first-hand how little protection the law affords cyclists. The man is a real danger to others and has, presumably, not had reason to question his own behaviour since so far he has not had any ill-effects from all this (except maybe a broken bumper). A great result would be him off the roads. At every step, this man's dangerous, and subsequently dishonest, behaviour has caused me a great deal of grief.

Nevertheless, I'm sufficiently in-touch with reality to understand that, at this stage, that is all very unlikely. So realistically, I want compensation. If that leads to a 100% fault claim on his car insurance and some additional financial pain for him, then that would be the icing on the cake.

That seems conclusive to me that the driver did stop. There's nothing explicit in the legislation requiring the driver to remain.
As above, he is required to stop for long enough to give details. He didn't do this.

He initially tried to drive away but couldn't get round me. I left my (now knackered) bike in front of his car so he wouldn't be able to drive any more (other cars behind/left/right. He then stopped, jumped out of the car, shouted at me a bit. I immediately dialled 999 at that point. I told him not to go anywhere, he appeared to calm down and agreed to pull into a side-street to give me his details. When I moved my bike to allow him to do that, he just drove away. Fortunately there was a police car only a minute or so behind him in the traffic; I told them my story and they chased him down and pulled him over ~1 mile away (he must've been shifting; I don't know how he covered so much ground in heavy traffic vs Police with Blues'n'2s).

The fact that he did stop at the scene is IMO evidence that he could stop.

For example, he may say that he did indeed stop, saw that you were unharmed and decided to drive on and report the accident lo the police from home

The law requires a driver to stop if there is any injury or damage. So my being uninjured doesn't nullify the requirement to stop and exchange details (since there was clear visible damage to the bike). But as above, this is perhaps academic, I want to know what to do in order to claim compensation for my damaged bike.

Have you contacted your local police accident/collision admin unit as suggested ^^?

I can't get through to the Police RTC clerk. They have limited opening hours (10-2 only) and never seem to answer the phone. I've emailed but I'll keep trying the phone approach.

- The question:
Per the advice from Gov.uk, I should attempt to contact the other party before enacting the claim online. With that in mind, I think my next step should be a letter (ideally directly to him, possibly to his insurer, or potentially the registered keeper - a relative of his) explaining that I don't want to enact my legal services since that will cost me money. If I am forced to do this, I'll ask for the lack of prosecution for leaving the scene to be reviewed by my lawyer (since that will strengthen my civil case). Of course, I don't want to seem like I'm playing armchair lawyer and issuing a worthless threat. But that may be enough make him sit up and take notice.

fastpedaller
Posts: 2515
Joined: 10 Jul 2014, 1:12pm
Location: Norfolk

Re: Hit from behind while commuting - advice please!

Postby fastpedaller » 13 Jul 2020, 7:03pm

I'm going to ask the question that nobody else here (as far I'm aware) has asked - Was the driver actually insured to drive the car? Have the Police confirmed this, or are they just dropping any Criminal charges 'because insurance will deal with it'.

irc
Posts: 4755
Joined: 3 Dec 2008, 2:22pm
Location: glasgow

Re: Hit from behind while commuting - advice please!

Postby irc » 13 Jul 2020, 8:11pm

thirdcrank wrote:
superficial wrote: ... After the driver got out to shout at me, he drove away without exchanging details ...


That seems conclusive to me that the driver did stop. There's nothing explicit in the legislation requiring the driver to remain.


My understanding was always that stop meant stop and supply details to anyone reasonable requesting. As per s170(2)

Stopping then driving off after shouting at the OP did not comply.

The alternative of reporting later was for when either the third party wasn't there (car hits wall) or when in an injury accident the driver did not have his insurance details with him so could not comply with that requirement.

Cowsham
Posts: 515
Joined: 4 Nov 2019, 1:33pm

Re: Hit from behind while commuting - advice please!

Postby Cowsham » 13 Jul 2020, 9:21pm

superficial wrote:: TLDR : I've responded to a few of the points raised, if you don't want to read that please skip to the bottom for my question

You need to be completely clear what you want to achieve.
AIUI, there are two strands to all of this. He might be prosecuted and / or he might be forced to compensate me. The two are linked in that a conviction may (as has been stated) strengthen my claim for damages, but I can't really influence a prosecution since that is a matter for the police (At least it's my understanding that a decision not to prosecute has been made and I have no say in that?).

What I want, honestly, is retribution at this point. The stress of all this is not worth the cost of replacing my bike, but the whole process has been immensely frustrating seeing first-hand how little protection the law affords cyclists. The man is a real danger to others and has, presumably, not had reason to question his own behaviour since so far he has not had any ill-effects from all this (except maybe a broken bumper). A great result would be him off the roads. At every step, this man's dangerous, and subsequently dishonest, behaviour has caused me a great deal of grief.

Nevertheless, I'm sufficiently in-touch with reality to understand that, at this stage, that is all very unlikely. So realistically, I want compensation. If that leads to a 100% fault claim on his car insurance and some additional financial pain for him, then that would be the icing on the cake.

That seems conclusive to me that the driver did stop. There's nothing explicit in the legislation requiring the driver to remain.
As above, he is required to stop for long enough to give details. He didn't do this.

He initially tried to drive away but couldn't get round me. I left my (now knackered) bike in front of his car so he wouldn't be able to drive any more (other cars behind/left/right. He then stopped, jumped out of the car, shouted at me a bit. I immediately dialled 999 at that point. I told him not to go anywhere, he appeared to calm down and agreed to pull into a side-street to give me his details. When I moved my bike to allow him to do that, he just drove away. Fortunately there was a police car only a minute or so behind him in the traffic; I told them my story and they chased him down and pulled him over ~1 mile away (he must've been shifting; I don't know how he covered so much ground in heavy traffic vs Police with Blues'n'2s).

The fact that he did stop at the scene is IMO evidence that he could stop.

For example, he may say that he did indeed stop, saw that you were unharmed and decided to drive on and report the accident lo the police from home

The law requires a driver to stop if there is any injury or damage. So my being uninjured doesn't nullify the requirement to stop and exchange details (since there was clear visible damage to the bike). But as above, this is perhaps academic, I want to know what to do in order to claim compensation for my damaged bike.

Have you contacted your local police accident/collision admin unit as suggested ^^?

I can't get through to the Police RTC clerk. They have limited opening hours (10-2 only) and never seem to answer the phone. I've emailed but I'll keep trying the phone approach.

- The question:
Per the advice from Gov.uk, I should attempt to contact the other party before enacting the claim online. With that in mind, I think my next step should be a letter (ideally directly to him, possibly to his insurer, or potentially the registered keeper - a relative of his) explaining that I don't want to enact my legal services since that will cost me money. If I am forced to do this, I'll ask for the lack of prosecution for leaving the scene to be reviewed by my lawyer (since that will strengthen my civil case). Of course, I don't want to seem like I'm playing armchair lawyer and issuing a worthless threat. But that may be enough make him sit up and take notice.


If the driver said you swerved in front of him why didn't he want your details since you ( as he claims ) damaged the front of his car? Or has he taken your details?

The other thing to watch out for is that this could have been a young kant out for a drive in his mammy's car who just happens to be a police woman ( as happened to a friend of mine -- the police closed ranks and that was that )