Rachel Flannigan, Partner, Road Traffic Accidents at Express Solicitors
By Rachel Flannigan, Partner, Road Traffic Accidents at Express Solicitors
Having spent my career specialising in Road Traffic Accidents and most recently as Head of Technical Claims I am well versed in what can make or break a case. Of late, I am seeing the same issue repeatedly, which has motivated me to write a short article to raise awareness amongst fellow practitioners, which in turn hopefully will promote higher standards and above all help more injured people.
The issue
Simply put, the Motor Insurance Bureau (MIB) has a duty to treat claims the same way a court would when assessing duty owed, breach of duty, causation and evidence. Unfortunately, far too often they simply reject claims without doing so. I have been involved in several cases, as have my colleagues, where this oversight has occurred. In each instance the case has been initially rejected before being overturned by the arbitrator after appeal.
Among the claims I have handled, there are two cases in particular that serve as excellent examples of failures by MIB to approach the case in the correct way. Below, I have outlined the key details in the hope of illustrating the pitfalls and offering fellow legal professionals valuable guidance.
Failure to treat evidence correctly
My client (the claimant) was involved in a serious car accident when an untraced vehicle cut across his path, leading to the loss of control and a subsequent crash. He sustained significant injuries. On his behalf we submitted a claim to the MIB under the Untraced Driver’s Agreement.
The MIB responded by denying liability, asserting that we failed to prove that the accident was caused by an untraced driver. They further claimed that they believed the accident was our client’s fault and that the untraced vehicle did not exist. These assertions were based on witness statements taken from two individual witnesses and a police officer.
Our response
The witness statements presented by the MIB could not be relied upon. The police officer’s statement lacked a signature, and the witness statements from the individuals were entirely inconsistent with each other, one of which was also unsigned.
In a typical claim, you would have the opportunity to cross-examine witnesses at trial. The MIB agreement specifies that they must handle the claim in the same manner as a court would. Accordingly, we had the right to contact the witnesses to clarify their evidence and challenge their statements. However, neither witness responded to our requests. It’s important to also note that the court would not accept evidence from a witness who hadn’t verified a statement with a statement of truth. Therefore, it was unreasonable for the MIB to rely on such evidence.
The only account that had been consistent throughout was our client’s account.
MIB response and appeal
Despite our position on the evidence the MIB formally rejected the claim, which led us to submit an appeal to the arbitrator setting out why the evidence was unreliable and inconsistent.
We cited Paragraph 11(1) of the MIB Untraced Driver’s agreement, which states that “the MIB shall, by adopting the same method as a Court in England, Wales, or Scotland would adopt, be obliged to make an award” just as the court would not allow evidence from witnesses who had not signed statements, the MIB should not have relied on them either. Additionally, the court would give little, if any, weight to statements that were inconsistent and where the witness refused to engage with cross-examination. We emphasised that with that evidence removed, there was no alternative evidence to counter the claimant’s consistent version. There was no suggestion that the claimant was not credible or reliable, so a court would likely find in favour of our client.
The arbitrator’s response
The arbitrator found the MIB’s decision was wrong and overturned it without any finding of contributory negligence. He was not prepared to agree that the accounts of the witnesses “trumped” the claimant’s account.
Ultimately, the MIB failed to properly apply the law as a court would when it came down to evidence.
Not just an isolated case
In another case, my client (the claimant) was struck by a car while crossing a road. The vehicle briefly stopped before fleeing the scene. As a result of the accident, our client suffered a broken leg. Despite the police appealing for witnesses, no further action was taken, and the vehicle was never traced. All we had to rely on was CCTV footage and the client’s account.
The MIB rejected the claim, stating that our client had failed to acknowledge the presence of the untraced vehicle on the road prior to the collision and walked into the path of the correctly proceeding vehicle.
Our appeal
The MIB’s decision failed to consider the duty owed by the driver.
As a result, an appeal was lodged with the arbitrator, highlighting that the MIB had failed, under Clause 11(1), similar to the previous case, to apply the law as the court would when assessing liability. They neglected to focus on the actions of the defendant and failed to properly examine the duty of care and breach of duty. It was evident from the absence of any mention that they hadn’t even considered this. Furthermore, they failed to appreciate that the actions of the claimant do not negate the negligence of the defendant.
In our appeal we demonstrated that the driver’s speed did not change at all, only to brake and stop after the collision (unlike the vehicle on the other side of the road which did stop for him moments prior). This would suggest the driver failed to appreciate the potential hazards ahead and adjust their driving as a reasonable and competent driver would.
Our client acknowledged that his own actions contributed to the accident. Therefore, contributory negligence was likely. However, we emphasised that the arbitrator should consider causative potency and blameworthiness. We referenced case law — AB v Main [2015] EWCA 3183 QB — on assessing breach of duty and cited several cases on contributory negligence. Additionally, we quoted the Highway Code, as the court would give weight to this evidence to support a breach of duty by the driver.
We asked for the costs of the appeal to be awarded in addition to normal costs permitted under the Untraced Agreement quoting Paragraph 19(13). This was on the basis of the blatant disregard for the agreement by failing to consider the driver’s breach of duty at all when rejecting the claim which is the basic principle of all such RTA claims.
The result
The MIB then conceded primary liability but suggested 75% contributory negligence. We insisted they submit the appeal to the arbitrator.
The arbitrator’s verdict was the claimant bears the burden of proof to show the injuries were caused by the negligence of an untraced driver, either in whole or part and any contributory negligence alleged has to be proven by the MIB. He accepted the Highway Code as admissible evidence and accepted it is well established from appellate authorities that the duty of care on motorists is heavier than on vulnerable road users.
His assessment was the drivers speed was excessive, had they been driving slower and properly looking they would have seen the claimant and been able to brake and avoid impact or certainly reduce the damage caused if impact could not be avoided.
He did find our clients actions contributed to the accident occurring but found the driver was negligent and put contributory negligence at 40%.
He awarded the claimant full costs of the appeal.
Summary
It’s crucial to note that without the appeals being made and won, our clients would have received neither compensation nor closure, severely hindering their ability to begin rebuilding their lives. I hope these examples will shed light on the shortcomings, raise awareness, and prevent similar occurrences happening in the future.
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