Car Accident - now being disputed by other party

stinky_daddy

Hello

I wonder if anyone can advise on the following situation (I have tried 'googling' it to no real avail - although it may be the phrase / keywords I have been looking at).

Basically, my wife was on the school run back in March of last year, when the vehicle was hit by a 3rd party.

There was various damage to our vehicle (we don't know about his as he failed to stop after the accident).

My wife got a partial registration on that occasion, and then subsequently saw him / the vehicle a couple of days later (it transpires he lives near the school) where she was able to get the full registration.

The police were advised on both occasions, and after investigating the failure to stop occurrence (my wife's word against his with no independent witnesses), no further action was taken.

When the insurance companies' became involved, he subsequently admitted full liability (I believe our solicitor should have evidence of this fact), however, apparently all defendants / claimed against parties' have 90 days to defend / refute these claims which until now (11 months later) he has failed to action.

My wife has now been advised that due to him refuting this claim for damages / personal injury (which may or may not include associated physiotherapy costs, my wife cannot remember) this claim is now going to court.

My question is therefore:

As the defendant is now refuting that he was going fast enough to cause physical injury (despite several independent medical reports / assessments to the contrary), can our insurance company force the case to court (as he is admitting liability for the accident but refutes that he was going fast enough to cause any injury,so in essence he / his insurance will not settle the case, therefore either our insurance company continues to chase him (in the hope he will finally admit accountability, or it goes to court where a judge can decide - also I assume it would be heard in a small claims court (as the potential figure involved is less than £5000))?

Can anyone therefore advise why now, he can apparently deny causing injury to her, when, he apparently had no issue with it initially (it would appear that now a settlement figure has been proposed to him, he has now decided to contest it outside of this 3 month / 90 day window) and what is the likelihood of a judge awarding more / less than the proposed settlement figure (I assume it is 50 / 50 either way but would be interested to hear responses).


TIA.

S_D

Crazy_Jamie

You need to understand the distinction between admitting liability regarding negligence, and admitting causing injury. There is a difference, and that difference is key in cases where LVI (Low Velocity Impact) is pleaded, which is what has happened here. Essentially in this case the Defendant is accepting that he was negligent in colliding with your wife's vehicle, but is denying causation. In other words, he is denying that his negligence caused your wife's injury. So there is no need for him to withdraw any admission per se because he is still accepting that he has been negligent.

Procedurally, a number of things have to be done by the Defendant before they can legitimately plead LVI and obtain their own expert evidence (which is what they will be attempting to do). Specifically, they need to raise causation as an issue within 90 days of the receipt of the letter of claim. They then need to raise the same issue within their Defence, and finally a statement needs to be provided by the solicitor explaining the basis for disputing causation. Without those three steps being taken, the Defendant may be in difficulty in obtaining permission for its own expert, and will therefore struggle to rely on LVI arguments.

The 90 day period that you are referring to is a standard period following the letter of claim within which a Defendant must respond to the allegations from the Claimant. This normally takes the form of admitting or denying liability, but clearly takes on slightly more significance in an LVI case. The 90 day period that you are referring to may well be this one, though you seem a little mixed up as to its significance in your opening post.

The bottom line is this. The Defendant has pleaded LVI in this case. A process has now begun that will likely lead to the Defendant jumping through the necessary hoops before obtaining its own expert report. This will generally require your wife to be examined by a medical expert nominated by the Defendant. A couple more hoops will be jumped through on both sides, and then if the case has not settled it will proceed to trial.

Whether it is a small claim or not depends on the nature of your wife's injuries. You are right that the normal level is £5,000, but in Personal Injury claims the small claims cut off point is actually £1,000 in relation to the value of the injuries. This is roughly a four week whiplash injury, so it depends on how serious your wife's injuries were as to whether this will be a fast track claim or not. I expect it probably will be. Fundamentally this means things will take a little longer to get to Court, but your wife will still give the same evidence as if it were a small claim, so from that perspective nothing really changes.

Regarding the settlement figure, without knowing what your wife's injuries are and what the settlement figure is, there is zero chance of anybody advising you as to whether the offer is reasonable or not. Your solicitors will advise you as to the level of offer made or received, though if it is your solicitors that have made the offer there is no risk to you either way.

stinky_daddy

Thanks for your informative and helpful response Jamie, if I may, I will attempt to add further information (which hopefully will make the entire picture somewhat clearer).

My wife is somewhat confused, due in no small part, to the fact that the defendant's insurers made an initial offer which she was advised to decline (due to the need for further physiotherapy) following an independent assessment by a consultant she is undergoing continued physio (a further 12 sessions were recommended, after an initial group of 8 sessions recommended by an independent GP at the time of her first consultation). Various symtoms arose from the accident, including, whiplash, bruising and pain in various parts of the body (along with other minor injuries) if that helps at all?

Her solicitor then made an offer and this is where the 3rd party has now admitted vehicle damage but refutes claims regarding injuries suffered and this is where she is confused over the 90 day issue (unless his insurer made an offer without his knowledge / consent, how does the 90 day issue come into effect, as surely, he has already surpassed this timeframe)?

She was informed by her solicitor that the 90 day period began upon initial contact with the defendant (which would have been approx 11 months ago (back in March of last year)).

The offer by her solicitor (best case scenario, would still have been less than £2500), so would this be heard in a "normal" court (for want of a better description, given your explanation regarding personal injury claims)?

TIA.

S_D

Crazy_Jamie

From what you have said about how the case has gone procedurally, it sounds like the Defendant may have raised the LVI arguments too late in the process. As I have said, they have to initially raise causation as an issue within three months of receipt of the letter of claim (this is the 'initial contact' that your solicitor refers to) to virtually secure their own expert. Whilst it is not unheard of for a Defendant to run LVI properly without adhering to this procedure, it makes it far more unlikely that the Court will allow them permission for their own expert. If the Defendant has indeed raised LVI arguments 11 months into the process for the first time, I would fully expect your solicitors to be robust in resisting any attempts by the Defendant to take the case along the traditional LVI route. Of course, it is possible that the Defendant had denied liability and in the alternative had denied that the collision was of a sufficient force to cause injury within the initial 90 day period, in which case they may still have jumped through the necessary hoops initially to plead LVI whilst also denying liability. That is a more unusual stance to take, but it is possible. Your solicitor will be able to clarify whether that latter scenario applies.

Regarding the injuries, again without more details as to the severity of the symptoms and the prognosis period I cannot offer a rough valuation of the injuries. However, the need for such a significant number of physiotherapy sessions suggests to me that it is likely the injuries are/were of a sufficient level to warrant an award of £1,000 or more in general damages, which means that the case would be allocated to the fast track and not the small claims track.

And just to clarify that point whilst incorporating the answer to your last question, a hypothetical award of £2,500 would be at a fast track level providing the general damages portion of that ('general damages' are damages for the injury itself, as opposed to 'special damages', which are identifiable out of pocket expenses like physiotherapy etc) is over £1,000. Which it probably will be.

So yes, from the information that you have provided it does sound like this is a fast track claim, or one for 'normal court' as you put it. Though don't fall into the trap of thinking that your wife will have to go to a different Court. Both small claims and fast track cases are heard in a County Court, so as I said earlier for your wife's purposes there will be little difference either way. The fundamental differences are in the procedural and costs rules that apply to the small claims track and fast track, which are largely matters that the solicitors will be concerned with rather than yourselves.