Might have to go Bankrupt because of a claim bought against me :(

shan7-8-6

Hey Mouse1812 - I've been told to send out the file with all information on the case to the insurer so they can asses my situation, I'm sending it out today via special delivery and hopefully I'll get a phone call tomorrow from them saying there solicitors will mount a defence for me etc.

I was not self employed at the time, I was making no money (mostly in debt lol), and I booked the truck as a private individual. So I'm not sure if that makes me a self employed person?

vax2002

Action Plan:
Serve notice that any statement you signed is withdrawn, to whom has the statement.
DEMAND full disclosure of information and evidence from the people suing you and state that you require details of companies insurers.
Add the companies insurers on to the case as defendants via a counter claim , write to the court asking for an order to attend court for questioning is made for the insurers.
Request that the policy of these insurers is taxed in court "read" and that any liabilities are decided upon as insured losses.
The insurance company once added on in counter claim will come out fighting and trump the barrister with their own.
The clerk at the court desk office can help you file the paper work and add in the insurance company as a counter claim defence.

shan7-8-6

vax2002 wrote: »

Action Plan:
Serve notice that any statement you signed is withdrawn, to whom has the statement.
DEMAND full disclosure of information and evidence from the people suing you and state that you require details of companies insurers.
Add the companies insurers on to the case as defendants via a counter claim , write to the court asking for an order to attend court for questioning is made for the insurers.
Request that the policy of these insurers is taxed in court "read" and that any liabilities are decided upon as insured losses.
The insurance company once added on in counter claim will come out fighting and trump the barrister with their own.
The clerk at the court desk office can help you file the paper work and add in the insurance company as a counter claim defence.

Unfortunately the insurance company has declined to take the case and they are sending out the documents back to me. So I'm back to mounting a defence myself

How do I go about doing what you have said vax2002? I had the papers sent out from the claimants solicitors with letters from there insurers and it says that in the terms of the cover, it does not cover the workers offsite (basically they didn't cover the company for accidents which happen outside of the there own premises).

Looking forward to any help I can get because I've only got 7 days to mount a defence!

Mouse1812

Bump

because this is important and more is needed. I'll be back later, in meantime OP are you still checking in for help? You need to have something ready to go by end of weekened.

shan7-8-6

Mouse1812 wrote: »

Bump

because this is important and more is needed. I'll be back later, in meantime OP are you still checking in for help? You need to have something ready to go by end of weekened.

Hi Mouse1812,

I've looked for help and exhausted all avenues, there is no help available for people in my situation. Citizens advice was a bit useless to be honest, they just said write something up defending yourself and hand it in to the court, and that was that, no offer to help me write it up or anything.

This is the time where it would have been good to know a lawyer, it's the only profession I don't have friends in! lol

Mouse1812

FORUM WARNING : I’m not a solicitor, if anyone knows better please chip in. I’m not accepting any responsibility whatsoever to anyone.


To prepare your defence I suggest you firstly study the law a bit - you need to understand it otherwise they will run rings around you. As you study the law remember the three parts - duty of care, breach of duty, consequential harm (damage). I may not find much time to comment on these in detail.

There are some nice notes here:


While you only need to disprove one of these (Duty, Breach or Damage) I would suggest that you prepare a defence which disputes all three. But you must do it in order (Duty, Breach, Damage). You can’t start your defence on Damage (harm) without apparently accepting duty and breach have occurred - that would be daft. It would be better to win on Duty and not have to do battle on the other two. Three chances must be better than one, so prepare three defences in one.

To do so you must be smart - disputing that you breached the duty of care could be twisted to suggest that are accepting you owed a duty of care. That would blow one third of your defence apart and reduce your chances of winning. Therefore include something in your defence to make it clear your defence against breach is only applicable should the court rule that you did owe a duty of care. Likewise your defence against the injury is only applicable if the court rules you breached a duty of care. You of course deny that any Duty existed.

I therefore suggest you structure your defence in this order:

Dispute that you owed a duty of care.

then state something like “without prejudice to the forgoing should the Court find that I did owe a duty of care which I deny then I submit”

Dispute that you breached any duty of care.

then state something like “without prejudice to the forgoing, should the court find that I did breach an owed duty of care which I deny than I submit”

Dispute that the injury (hernia) was caused by the breached duty. This of course includes the dispute that the injury actually occurred on the days you were loading and unloading.


Draft your defence points as short paragraphs. You do not need to explain the law in each point, just refer to the legal point and stick to facts. While it may appear your strongest point is the fact the driver was not hurt moving the pallets leave it until last. It won't matter if you win on a smaller point first.

Mouse1812

shan7-8-6 wrote: »

I was not self employed at the time, I was making no money (mostly in debt lol), and I booked the truck as a private individual. So I'm not sure if that makes me a self employed person?

You can be self employed for a one off transaction. Was there a “profit” motive? Were you doing what you were doing in the hope or expectation of making a bob or two?

Whilst your defence should deny being self employed, be prepared to lose that point by finding more defence points.

shan7-8-6 wrote: »

The only reason we went to load the stuff ourself was because we didn't think they would be willing to load and unload for us (since they would have to be taken into a storage unit and moved from a joinery), hence me and my friend getting our hands dirty

We need to understand exactly what the “van and driver” hire terms were. What was the contract between you and the van hire company? Why did the driver help? Was it part of his job to secure the load?

shan7-8-6 wrote: »

Also I have the jobsheet for the driver, but that has no small print on it. Just an outline of the job.

Excellent, what does it say the driver’s job is?

shan7-8-6 wrote: »

The driver stayed in the van at all times, and only used a pallet truck to manouver the chairs and place them where he thought best in the back of the truck (he was obv trained and had done this sort of stuff on a daily basis).

Were any of the chairs stacked on top of each other?

shan7-8-6 wrote: »

There insurance did not cover the driver to drive off the premises so if they lose they will have to pay out themselves.

shan7-8-6 wrote: »

The relationship between the driver and the van company were that they were his full time employer, I just used there services, the employers liability insurance did not cover the driver off the premises (they supposedly had missed that when they took out insurance).

This is astonishing - how can a driver not be insured to drive off the premises? Follow that through: what was he employed to do and why did they send him out to do something else?

Why would you question that? Remember (your defence): to owe a duty of care there has to be a reasonably foreseeable risk of harm. I would suggest it is not reasonable to require you to question the relationship between the van hire company and their driver. Indeed the exact opposite is. It was reasonable for you to assume that any specific risks associated with the job were already covered by the van hire company. I would further suggest that any ruling by the Court otherwise would impose an intolerable burden on all business transactions and that to do so would not be fair, just and reasonable.

If you have done the suggested reading in my last post you will understand the strength of this point. IMO it could kill the duty of care question.

debt_doctor

Well mouse, if there was a 'round of applause' button I would press it for you! I think you have provided an excellent outline of the defence.

I have nothing to add to the substance, just the the protocol of numbering each paragraph for ease of reference and to send 1st class recorded delivery.

DD

capeverde

whilst I dont have a legal viewpoint I would say if this case was actually not thrown out before going to court the whole country would grind to a halt.

Firstly if a company hires out a van and driver service and they also include a pallet truck on their vehicles, you would think that they have insurance in place and secondly there drivers are trained in using pallet trucks. If they arent, Im staggered that these injury chasers assume they can bully the person that hired them instead of the van company. I think a few I's havent been dotted here and they are simply hoping that your insurance company will just cave in as the figures are under a certain amount.

I own a company that has double pallets (2m x 1m x 2m high) lifted on pallet trucks every day. They go on a tail lift and into the truck.The risk of injury is twofold, firstly a muscle strain/tear and secondly a crushing injury if there was a problem with the tail lift. and the pallet fell over. You simply cannot train or educate to totally eradicate muscle injuries when operating a pallet truck, it is just one of those things. They dont require a lot of force, but from my own experience, muscle injuries can happen in the most harmless situations. The basics should have been covered by the drivers company and any claim should be against them for lack of training etc. There is no way you can be held liable. Pallet trucks are capable of handling 2 tons, so to that end it is unreasonable to assume that because you got weights of a few chairs wrong that the net weight would be anywhere close to this.

Mouse1812

capeverde wrote: »

whilst I don’t have a legal viewpoint I would say if this case was actually not thrown out before going to court the whole country would grind to a halt.

Unfortunately it may get still get into court. I would agree however about the potential consequence if the claimant won, it would set a very dangerous precedent. Hence my suggestion that the defence should point out the intolerable burden which would be placed upon commerce, that must be contrary to public policy.

capeverde wrote: »

You simply cannot train or educate to totally eradicate muscle injuries when operating a pallet truck, it is just one of those things.

Exactly, spot on. Negligence cases have been successfully defended because you cannot be expected to reduce the risk to zero - your obligation is to minimise the foreseeable risk not eliminate it.

Whilst the law can be quite fair and common sense can prevail, I am concerned there is a risk here of the OP being denied access to justice.

Thanks for your post, particularly helpful to know a little more about pallet trucks (never used one myself)