[freewheeler]

My motor-home was written off just before Christmas and I had a spell in hospital whilst they re-built my upper jaw. Pain was involved.
The circumstances of the accident were that I was stationery at red traffic lights (at the front of a queue) and a driver came over from the other junction at high speed and crashed straight into me. Plenty of independent witnesses have come forward to verify the events.

The police are prosecuting the other driver for careless driving.

I have tried not to over-elaborate - these are the bare facts.

The insurance company have paid the bulk of the value of my motor-home, but there are uninsured losses - insurance excess, items not recovered from the motor-home, damaged clothes (they had to cut them off me in the ambulance), trips to doctors/physio, etc etc.

The insurance company say they are unable to pay these until the court case is resolved.

I am considering a claim for damages - I have not taken this decision lightly (I am not a compensation junkie, no spurious claims for taxis so I can have a drink, from this member!!) but my family have gone through a lot whilst I recovered (and still some way to go).

It would appear that the other driver is considering trying to avoid prosecution. She has not admitted liability, nearly 5 months after the event. I know not on what grounds she is trying to get off this charge.

All this is leading to my request for help from learned friends here on MHF:

If the other driver gets off the charge, does this mean I lose the chance of getting my un-insured losses back? And would this mean that there would also be no case to answer for getting damages, or is this a separate case? I am not sure what the process is?
I could not think what possible defence the other driver may have - has anyone else had any similar experiences?

I am in discussion with a solicitor, but would appreciate other views/thoughts.

 

[gnscloz]

hi, if liability is totally the third partys fault, all of your costs and losses can be claimed back, i would reccomend either using a accident management company (totally free) or instruct a solicitor, have sent you pm

 

[DTPCHEMICALS]

You state the police are prosecuting.
The insurance company have paid.

If the Police are prosecuting and plenty of witneses I cannot see a problem.

Whose insurance company paid out yours or hers.

The person responsible for my sons death has never admitted liability , never been prosecuted but his insurance company paid out £1600 compensation. I do not think that a prosecution is needed to decide who is at fault. Evidence is the key and witneses

Best of luck

Dave P

 

[freewheeler]

Thanks gnzclos for your PM.

Thanks DTPChemicals - your post made me painfully aware that all things are relative. I am alive and thank God for that, hence my deliberating about making a claim for damages - there is always someone worse off than yourself. All the best to you.

My insurance paid out my claim.

Does the principle follow through for all types of cases - criminal and motoring/civil - that a successful claim can be made even though liability is not proven?

 

[Dukeham]

I had a near fatal motorcycle accident 3 years ago. 2 dead & 2 critically injured. 3 months in hospital. 2 years off work & although the accident was clearly not my fault & I am claiming it could take 3-7 years for it to conclude I am told.
If it is proved not to be your fault then any outlay that is a direct result of the accident is claimable. Make sure you keep all relevant receipts. Petrol. Hospital parking etc etc Oh yes & of course taxi/beer & theatre tickets :wink:
The truth is its not like the telly trys to make you think. So please don't think this will be dealt with to quickly, Particularly when solicitors get involved & I would strongly recommend you go through a good personal injury firm. there are a lot of solicitors that really not up to P/I cases & could cost you money.
May I be the first to wish you good luck cos you will need it & the patients of a saint.

 

[DTPCHEMICALS]

Dukeham has got it allin one.
Your insurer will probably be making a claim on your behalf for paying you out.

regards
dave p

 

[MrsW]

If you are a member of the RAC or AA you may have cover with that policy which will help you claim back uninsured losses.

When Penquin was involved in an accident where a car was driven down the nearside of his after the driver "failed to see him" on a roundabout and drove straight into him, the insurance company appointed a company on the same day to retrieve all uninsured losses. They got back the lot for every out of pocket expense for which we could provide a receipt.

 

[suedew]

Wish you joy, my daughter in law 8 months pregnant was hit by another car whilst she was on a roundabout. car landed on its roof and slid into the path of other traffic which thankfully were able to stop. Other driver was prosecuted, found guilty and her insurance company were still disputing liability!!!!!! Did finally get sorted but only because my son is articulate and collated paperwork himself. They were only claiming for the car too.

 

[asprn]

Re: Insurance, Un-insured Losses & Damages Claim - Genui

The police are prosecuting the other driver for careless driving

That's the first point.

The insurance company say they are unable to pay these until the court case is resolved

That may be because they are waiting for the result, to use it as a yardstick for their own civil proceedings - see below.

It would appear that the other driver is considering trying to avoid prosecution

This is the second point. She can't avoid it, if she's already been summonsed to court. She can dispute it, plead Not Guilty, and have her day in court, but - unless there is some significant technical error in the pre-court prosecution process which may mean the CPS will discontinue - she can't "avoid" it.

There is no direct correlation to criminal and civil proceedings in law, although the insurer will most likely be waiting for the Magistrates Court's decision to add or subtract weight of evidence to their own proceedings. They may for example, proceed with a civil action if the prosecution succeeds, but may not if it doesn't. In my experience, the prosecution is used as a unit of measure, but has no legal significance as such.

She has not admitted liability, nearly 5 months after the event. I know not on what grounds she is trying to get off this charge

And neither will the court until the trial, which is complete and utter wrongness. However, from 1st June, defendants of all levels of trial will have to disclose at the plea stage what the basis of their defence is, and the Magistrates will have the power to reject or allow the Not Guilty plea (the "CJSSS" system). This will happily drastically reduce the number of waste-of-time Not Guilty pleas which are changed on the day of the trial to Guilty (about 80%!).

If the other driver gets off the charge, does this mean I lose the chance of getting my un-insured losses back?

No. See my previous point. There is no direct correlation between criminal and civil proceedings, but if the driver is found Not Guilty after a trial, I would want to consider the reasons (and would be present during the trial, as would be my right).

I could not think what possible defence the other driver may have

Oh, as many as she cares to put forward. Some types of defences can bypass the witnesses and obviate the need to call them to court, if she does not dispute their evidence and relies on other factors as defence. For example, she could claim she sneezed, making it physically impossible to keep her eyes open. Or a bumble bee attacked her. Whatever.

Dougie.

 

[Waggy]

Dougie makes some very valid and succinct points.

Also remember that the burden of proof is much higher in a criminal case where the defendant must be proved guilty beyond all reasonable doubt.

The civil case will be decided on the balance of probabilities, ie is it more likely to have been scenario A rather than scenario B or any apportionment between the two. This means that a civil case may well succeed when a criminal case has not.

 

[bonnieboo]

Hi
Along with looking after the chooks, working for the nhs and motorhoming I am also a magistrate.
We have had cases like this in court and when the defendent has been found not guilty the claim for damages has not been able to be made.

I she may plead not guilty and it will go to trial, I expect it will be a summary trial so will be trialed in the magistrates court.
Hopefully you have witnesses for your side

Good luck, email me if you need any guidance and I will try to help

Jakki

 

[SpeedyDux]

Hi Dom/ Freewheeler,

Sorry to hear about that awful incident. I hope you get proper full compensation at the end of the day.

If the other driver either pleads guilty or is convicted on the charge of careless driving, that will be good evidence of negligence to support your civil claim for damages. I think that all you need for this will be a Certificate of Conviction from the Magistrates Court.

Even if the charge of careless driving is dismissed for some reason (witnesses failing to turn up is not uncommon) that doesn't stop you from going ahead with a civil claim for uninsured loss as well as damages for personal injury. There is no rule in English law that acquittal or dismissal of charges in the criminal proceedings acts as a bar to a civil claim on the same facts.

For your claim for damages for personal injury and uninsured loss, if your MH policy doesn’t include legal expenses cover, you should check your other insurances to see if you have legal expenses cover that way. The relevant insurer will either appoint a firm of solicitors from their panel or allow you to choose a solicitor. You would be able to get professional representation on a no-win-no-fee agreement with the solicitors if it is backed up by legal expenses insurance. It is also possible for the solicitors to arrange after-the-event legal expenses insurance if you do not already have such cover in place. Either way it should be possible to minimise any risk of pursuing your claim in a situation where the other driver is still denying liability.

I’m assuming that the other driver was insured. If not, then a claim would need to be made to the MIB and there are time limits for this procedure. Your solicitors should handle this.

All the best,

SD

 

[freewheeler]

Many of you seem to be saying that even if the other driver DOES get off the charge - i.e found Not Guilty (note: I worded my original post wrongly - she is not trying to avoid prosecution, she is trying to avoid being found guilty), then there IS still the possibility of making a claim for my damages.

But one you, who seems quite qualified as a magistrate, says that if she is found Not Guilty then the possibility of claiming is not likely. Interesting, but depressing from my point of view.

I know that nothing can replace the advice of a proper solicitor but thank you all for your contributions so far.

 

[time-traveller]

Hi
Along with looking after the chooks, working for the nhs and motorhoming I am also a magistrate.
We have had cases like this in court and when the defendent has been found not guilty the claim for damages has not been able to be made.

I she may plead not guilty and it will go to trial, I expect it will be a summary trial so will be trialed in the magistrates court.
Hopefully you have witnesses for your side

Good luck, email me if you need any guidance and I will try to help

Jakki

Excuse my ignorance, Jakki - but what's a 'chook'?

 

[asprn]

one you, who seems quite qualified as a magistrate, says that if she is found Not Guilty then the possibility of claiming is not likely

Magistrates don't deal with civil cases, and from personal experience with hundreds of 'em :roll: including a cousin who is one, I can't really think how a magistrate will often know whether an civil insurance case will proceed or not on the basis of considering the result of a case in the criminal court. Once the magistrates reach their verdict, their involvement with the defendant ends (in this context).

As I said earlier, it's likely that the insurers will await the Magistrates Court result - and possibly the reasons - before making a decision on whether to proceed. That's not a prerequisite, but a pragmatic approach.

I know that nothing can replace the advice of a proper solicitor

Define the word "proper"....... 8O

Dougie.

 

[bonnieboo]

Hi
Along with looking after the chooks, working for the nhs and motorhoming I am also a magistrate.
We have had cases like this in court and when the defendent has been found not guilty the claim for damages has not been able to be made.

I she may plead not guilty and it will go to trial, I expect it will be a summary trial so will be trialed in the magistrates court.
Hopefully you have witnesses for your side

Good luck, email me if you need any guidance and I will try to help

Jakki

Excuse my ignorance, Jakki - but what's a 'chook'?

That made me laugh, its a chicken ha ha. we have 200 chickens 8 geese and 16 ducks.
I lived in Austrailia for years so i must have got my " Chooks " from there.

A free range chooky egg, yum yum
Jakki