Legal claim against pedestrian?

lisyloo

Would appreciate some advice/thoughts.

18 months ago my husbands parents were involved in an accident with a pedestrian.
A man who was running and "geing pulled" by 4 dogs, ran from a side road across the main road into their path and was hit by their car.
My father-in-law (who is 78) was not speeding.
The police questioned him (and seemed to be biased against the driver in this situation) but clearly did not find any evidence to prosecute him.
As far as my husbands parents are concerned this is entirely the fault of the pedestrian as he ran out in front of them.

They claimed off their own insurance for their car, hire car and recovery etc.
They asked their legal cover to claim for their excess but were told that this wasn't worthwhile as the 3rd party may simply counter claim for personal injury.

Guess what - yesterday they received a letter from a solicitor stating that he wanted to claim for personal injury.
We are not worried about this because as a 3rd party claim it would be done through insurance.

My question is should they now pursue the claim for their excess?
Can they do this after 18 months?
Are they doomed to failure or will the leagal company refuse to pursue it?

I know that we could just write a letter and try.
However we don't want any unneceessary hassle for the parents.
They are nearly 80 and get easily confused. Nasty solicitors letters will have an elderly couple in tears convinced they are penniless, so we only want to pursue it if it is worthwhile.

So is it worthwhile or is the system so heavily biased against drivers that have hit a pedestrian that it isn't worthwhile?

Thanks for any advice.

mattymoo

I used to deal with this type of claim for a large insurer in the early 90's - motor claims involving injury that is.
Did it for around 4 yrs and I do not recall anyone of our claims involving the successful recovery of monies from a pedestrian.
The first hurdle is whether or not it is worth it. You see, as well as your excess, your insurers would need to claim for the vehicle repair costs. Lets say the amount in total is £2,000 - most people do not have this money lying around.
If the pedestrian has household insurance or lives in a family that has insurance, his household insurers should pick up the cost of any claim against him. They may also be funding the injury claim against your parents.

There is nothing to stop a counterclaim being made. Initially they would do this via correspondance with his solicitors. Within the next 18 months a writ will be issued against your parents. This has to be done within 3 yrs of the accident (unless he was a child). The insurers would then file a defence and counterclaim with the court.

They may well agree to it since a counterclaim will be a usefull bargaining tool for them. Say his claim is valued at £10k they could counterclaim the £2k, end up agreeing a 50/50 liability split so the net cost to them is £4k plus fees.

As you seem to be aware already though, the law is heavily stacked against the driver in these cases.

lisyloo

You see, as well as your excess, your insurers would need to claim for the vehicle repair costs.

Why would they need to do this?
The excess claim for uninsured losses is via a seperate company.
Whether they claim for the other costs is an entirely seperate matter isn't it.
Aren't these two seperate claims?
One for insured losses and one for uninsured losses on another policy.

They may well agree to it since a counterclaim will be a usefull bargaining tool for them.

Ok, that gives me some hope that this may be worthwhile.
If it goes 50/50, do they get half their excess back?

As you seem to be aware already though, the law is heavily stacked against the driver in these cases.

Why is this the case?
Is it just claims experience?
It seems unfair tfor the law to have a closed mind on these matters. I am fully aware that insurance companies work on mitigating their losses and don't particularly work on fairness, however the law is a different matter and shouldn't be discriminatory or closed minded.

It is possible for a pedestrian to jump in front of a car in such a way that the motorsit can do nothing.
Extreme example I know but if someone jumps from a bridge onto your car then there is not a lot you can do.

mattymoo

Any court case relating to this claim will be in the name of Pedestrian vs your Father in Law. There can only be one civil court case relating to this incident.
The insurance company will defend / counterclaim in the name of your father in law. This is called Subrogation and is in every insurance policy. It allows an insurer to sue another party in the name of their policyholder.
You are correct that their are insured losses and uninsured losses relating to this incident but they will be added together and form part of any counterclaim made.

If liability is apportioned 50/50 they will get half the excess back.

As for the law. Motorist is doing 30mph in a 2 tonne metal box with the potential to kill or maim. Pedestrian = bag of skin and bones. The law will always put a far higher duty of care on the motorist in these situations. This is even higher where children are involved since they have little or no appreciation of risk.

The insurers / solicitors / courts will be looking at the point of when your FIL first became aware of the pedestrian and any action he took such as slowing down / covering the brake.
The "I didn't see him" or "He came out of nowhere" argument always fails. The law will argue that it is impossible for someone to materialise in the middle of the road so they must have come from somewhere and you the motorist simply failed to see them - ergo - you were not paying full attention to your surroundings and you lose.

As you drive along and you see a person dithering by the side of the road, away from any zebra crossing, the law would expect you to assume that person may step in to the path of your vehicle and for you to slow down accordingly.

lisyloo

Many thanks for your clarification.

There can only be one civil court case relating to this incident.

Isn't this kind of case most likely to be sorted out of court by the insurance companies/solicitors?
I thought they often settled 50/50 or came to an agreement rather than go to court as ultimately that saves them money.

The law will argue that it is impossible for someone to materialise in the middle of the road so they must have come from somewhere and you the motorist simply failed to see them

I understand. Thanks for the explanation.
FWIW - the man trains greyhounds and was running with 4 racing dogs but I understand what you are saying about the arguments.
There should have been some anticipation of a potential hazard.

Trying to explain this to my 79 year old MIL will be difficult.
As far as she's concerned because the police didn't prosecute my FIL is innocent and because the man ran out then that's his fault.
It will be impossible to explain things like "duty of care" and criminal vs civil liability but I will try my best to help them.

I will write to them (in FILs name) and ask them to include the £120 excess in any counter claim as I am not confident that this will be done automatically.

Astaroth

The question as to if it is worth it is a hard one to answer and very much depends on your consideration of effort -v- money involved.

As mattymoo correctly says, any claim against the pedestrian would have to be for the total cost of the claim which includes both your parent uninsured and insured losses - if you were to issue without including your insurers losses and subsequently won at least a partial settlement your insurers would be entitled to recover the same proportion of their losses from you (ie if you got a 50/50 settlement they could get 50% of their costs from you) as you will have prejudiced their case - a single claim can only go to court once and settlement is on a full and final basis.

As to liability... as stated, your parents would be held at least partially liable for the incident. I have however known cases where a pedestrian has been held partially liable for the incident and the insurance company recovered costs from them (though in reality it was a reduction in the payout).

Were there independent witnesses to the event?

If there werent then it is likely that your parents would be held the majority to blame if not solely responsible.... if we take an optomistic 75/25 against your parents is the potential hassle of years of battling worth 25% of their uninsured loss claim?

As to time scales, you have 6 years from the date of knowing (in this case when the accident happened) to make a claim for non-injuries

lisyloo

if you were to issue without including your insurers losses and subsequently won at least a partial settlement your insurers would be entitled to recover the same proportion of their losses from you

We are not thinkng of doing this independently.
Only asking (reminding) our insurance company to include the excess in any counter claim as they had the legal cover for uninsured losses.
In a perfect world they should do this automatically but I'm not confident they will so just thinking of putting it in writing.

I guess it's up to the insurance company as to whether they bother to counter claim at all.
The amounts are relatively small.
Car was £180 write off (excluding excess) plus recovery, storage and hirecar. They may also be some hospital charges as I believe they can send a bill for RTAs.
Perhaps they just won't bother counter claiming at all as it's too small.

Am I right in saying that this is entirely their decision and we have no say despite paying for the legal cover? (fair enough I guess).

Were there independent witnesses to the event?

Yes, but I am unsure exactly what their version of events was.
I believe the police were there too as it was a main A road that was shut for a while. So there would have been details taken by the police from forensics and witnesses.
I believe he was driving at 30 in a 60 zone but probably at 78 his reactions are not brilliant.
He was given a eye test afterwards by the police and had to answer some questions but they did not prosecute.
They were asked whether they wanted to prosecute the pedestrian and they said no mostly because they didn't want to go to court (this was almost certainly part of a standard form and does not imply any guilt or otherwise).

mattymoo

As mentioned above, the counterclaim is a useful weapon to reduce the size of the pedestrians claim so the insurers will probably include it.

The police failure to prosecute your FIL simply means they could not prove the case against him beyond reasonable doubt.
The pedestrian only has to prove his case on the balance of probabilities.
To put numerical values on those phrases, the police have to exceed 80% certainty whereas the pedestrian only has to reach 51% or above certainty.

Classic case was the OJ Simpson trial. OJ got off the criminal case but the civil case against him succeeded because of the lower burden of proof.

Astaroth

Yes, it is a fairly stock question and doesnt imply guilt but simply your parents desire on if charges should be pressed or not if it is deemed appropriate.

Forensics to be honest will have been very minor if anything more than photos and measurements - these are exceptionally costly to do and rarely worth the effort in what is (in the grand scheme of things) a relatively minor pedestrian RTA.

If your parents main concern is not to have hassle then a quick call or letter to their insurers should be more than sufficient to reiterate that you feel the pedestrian was at fault and that there are outstanding uninsured losses needing recovery but that you will be guided by their expertise on liability.

lisyloo

Many thanks for all your help.
I understand the situation now.
I can pretty much guarantee that my MIL won't !!

lisyloo

Hiya,

Just wanted to update this thread with the final resolution as people have been very helpful.

Just over 3 years ago my FIL hit a pedestrian.
I was not there but my FIL and MIL felt that the pedestrian was to blame.
The pedestrian was running with 4 greyhouds which he trains.
I believe my FIL was driving about 30 in a 60 zone.
He would have been aged 77 at the time, but the speed should have compensated for any slow reaction time.

His insurers (Norwich Union) said he was not to blame and that was based on the police and witness statements.
The pedestrian has been threatening a person injury case for 3 years.
They have said they were going ton "reconstruct" the accident report as they didn't agree with NU, however they are now out of time.

NU are refunding my FILs excess and sending a letter saying it is a "non fault" claim.
His new insurer (direct line) will be refunding any extra permiums paid due to it being judged a "fault" claim for 3 years.
We are pretty pleased with the way NU have defended the claim (and direct line for agreeing the refund).

So thanks for everyone's help and just wanted to update for the education.