UK & Europe
Insurance & Reinsurance
Clyde & Co has successfully defended the claimant’s personal injury claim following a head-on collision with the insured’s vehicle.
Liability was denied throughout. Whilst our client had incurred a significant outlay, tactically we decided to not include this within proceedings. This ensured that the burden of establishing who crossed over the central reservation remained with the claimant. At trial the judge found there were inconsistencies in the claimant’s evidence and preferred the insured’s evidence. This resulted in the claimant’s claim being dismissed and we subsequently recovered our client's outlay of almost GBP 100,000 in full.
The insured was driving his Aston Martin DB9 when he was involved in a head on collision on a country road with the claimant’s VW Sirocco. The insured sustained serious orthopaedic injuries and was unable to recall the moments immediately before the collision. The claimant sustained minor whiplash injuries but also stated that he could not recall the accident.
An independent witness had been travelling behind the claimant. She said that did not see the moments immediately before the collision but provided an account to the claimant’s solicitor that the claimant was driving normally in the lead up to the incident and she had not seen him cross onto the opposite side of the carriageway.
The claimant issued proceedings and Clyde & Co was instructed. We fully investigated liability, including interviewing the attending police officers and the lay witness.
Our client's outlay totalled almost GBP 100,000, mainly the write off value of the insured’s DB9. We tactically opted not to include the outlay in the proceedings to avoid allocation to the multi-track and the opportunity for accident reconstruction evidence to be introduced. We felt that could contradict the claimant’s lay evidence, and without a counter claim being included the burden of establishing who crossed over the central reservation rested solely with the claimant.
We relied upon the ‘lay’ evidence of the attending police officers, several of whom were highly experienced in accident investigation. In their view the claimant should have been charged for driving without due care and attention. The CPS however felt otherwise.
It was the officers’ evidence that the gauge marks on the carriageway and the trail from the oil leak from the insured’s vehicle were both strong indicators that the claimant had crossed onto the insured’s side of the carriageway, and not the other way around as the claimant alleged. We also served our own statement from the independent witness travelling behind the claimant. She confirmed that whilst she hadn’t seen the claimant’s vehicle cross onto the opposite side of the carriageway, she had not seen the insured’s vehicle cross either.
The claimant attempted to negotiate settlement of his claim in the run up to trial, but his insurers refused to meet our client's outlay unless a finding was made in favour of the insured by the court. With the outlay significantly exceeding the value of the claimant’s claim, the matter proceeded to trial. Sadly in the weeks before trial, the insured passed away following a battle with cancer. We relied upon his evidence at trial by way of his witness statement, and the detail in that statement proved vital without him being able to assist the court in person.
Intel evidence also proved to be of great assistance, showing that even where the value of the claim may not be impacted, carrying out searches on the claimant can be really useful. Our inhouse intel team located an article from the claimant’s local newspaper setting out how he had used his father’s blue badge whilst attending university to park closer to his lectures and to park for free. That did him no favours when it came to considering his credibility!
At trial DJ Harper found there were inconsistencies between the statements of the claimant and his brother on cross-examination. This was in relation to an alleged conversation between the claimant’s brother and the insured in the hospital (during which it was alleged the insured admitted full responsibility having been distracted by the test match cricket commentary on the radio).
The police officers were good, consistent witnesses. With the claimant’s evidence throughout having been that he did not recall the accident, the judge found the physical evidence compelling, and preferred the defendant’s version of events. He commented that even if he was wrong on that point, the claimant had not discharged the burden of proof, so his claim failed either way.
Witness evidence proved key in this claim. The detailed statement obtained from the insured enabled the court to obtain a clear view of the insured’s evidence without him being present at trial. The intel evidence assisted in discrediting the claimant, which proved most helpful when it was the claimant’s word against the insured. The police officers who attended also provided clear accounts, in particular referencing the physical evidence of the gauge marks and the oil leak.
As the judge found in favour of the insured, our client's outlay was consequently recovered in full.