- Establish there is a valid, enforceable credit hire agreement that complies with the Consumer Credit (Exempt Agreements) Order 1989 (requiring the debt to be paid in no more than four installments in less than 12 months from the date of the agreement).
- Show the Claimant was impecuniose (that he had no choice but to use a credit hire). The test being whether the Claimant had sufficient funds available without exposing himself and his family to greater loss or an unreasonable burden.
- Mitigate their losses: it is paramount that a Claimant must take reasonable steps to mitigate their loss. There had to be a genuine NEED for a replacement vehicle and no offer of a courtesy car was made by the insurer. Although a claimant is not obliged to use their own insurance to benefit the claimant.
Sunday 28 November 2010
A Successful Claim for Credit Hire
Guidance on making a successful credit hire claim was laid out in Clark v Ardington, Lagden v O'Conner.
Wednesday 24 November 2010
Road Traffic Accidents: Low Velocity Impact Claims
Low velocity impact (LVI) claims are claims for damages for injuries sustained in a road traffic accident in which the defendant (whilst often admitting negligently having caused the collision) asserts that the speed of impact was so low that the claimant cannot have sustained the injury complained of. Such a defence is often, but not always, accompanied by a plea of fraud – the claimant has made it up.
LVI claims most often involve whiplash injuries to the spine, usually the neck. They are mostly low value claims relating to relatively minor symptoms that resolve over a matter of weeks or months. The value of the claims are invariably such that they fall within the bracket to which, in terms of value, allocation to the fast-track is appropriate.
The fundamental premise of the LVI defence is that there is level of physical force upon a vehicle’s occupant below which no injury can be sustained by the occupant. This claimed threshold for injury is often calculated as between 3 or 5 mph ÄV.
Unlike in laboratory conditions, the actual speed of the impact in which the claimant was injured will rarely if ever be known with any accuracy. Witnesses’ descriptions of speed are notoriously unreliable. Therefore even if it were the case that an impact speed of less than x mph simply could not flex a human spine sufficient to inflict anything other than momentary symptoms, it will not often be the case that the evidence will be such as to compel the court to find that the impact speed was indeed less than x mph.
Vehicle damage is unlikely to be a reliable indicator of impact speed as parts of different cars absorb or transmit force differently to others. There will rarely be clear and detailed evidence as to the precise nature and extent of vehicle damage. Sometimes there will be no, or no obvious, damage, especially in many modern vehicles with absorbent bumper bars beneath the outer bumper. “Vehicle damage reports” are insufficient. They are prepared by insurance assessors simply enquiring into whether any damage is broadly consistent with the account given and whether the likely cost of repair exceeds the value of the vehicle. They do not involve an inspection intended to detect evidence indicative of impact speed. Repair estimates and bills are equally insufficient. Photographs mostly depict only superficial damage and cannot indicate the extent to which force has been transferred to the occupant.
In Armstrong v First York [2005] EWCA Civ 277, the defendant alleged that the impact force involved had not been enough to cause the claimants any injury and therefore their claims to have been injured were fraudulent. The claim was accordingly allocated to the multi-track and a jointly instructed forensic engineer permitted to give evidence. He concluded that the impact was insufficient to cause any injury to the claimants. However, the trial judge(5) unreservedly accepted the claimants as truthful witnesses but also found that the expert’s evidence was logical, consistent and without any apparent error. The judge relied upon the dicta of the Court of Appeal in Cooper Payan Ltd v Southampton Container Terminal Ltd [2003] EWCA Civ 1223 that:
The judge found that the claimants’evidence was to be accepted and that the engineer’s evidence involved “some error which has not been detected by this court and to which the court cannot point. The Defendant appealed on the basis that, in line with Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, it was not open to a judge to reject the evidence of an expert without giving clear reasons why. The Court of Appeal dismissed the appeal as the judge had indeed given a reason for rejecting the expert’s evidence namely that it was inconsistent with that of the claimant’s whose evidence he preferred as he was entitled to.
In effect by basing their case on the impossibility of injury and thus alleging “fraud”, the defendant’s insurers had switched the burden of proof onto themselves. Defendants now no longer allege that injury was impossible and therefore the claim is fraud. Rather, as entitled (see Kearsley below), they now allege that injury was so improbable that the claimant simply cannot establish, on the balance of probabilities, the injury claimed.
LVI claims most often involve whiplash injuries to the spine, usually the neck. They are mostly low value claims relating to relatively minor symptoms that resolve over a matter of weeks or months. The value of the claims are invariably such that they fall within the bracket to which, in terms of value, allocation to the fast-track is appropriate.
The fundamental premise of the LVI defence is that there is level of physical force upon a vehicle’s occupant below which no injury can be sustained by the occupant. This claimed threshold for injury is often calculated as between 3 or 5 mph ÄV.
Unlike in laboratory conditions, the actual speed of the impact in which the claimant was injured will rarely if ever be known with any accuracy. Witnesses’ descriptions of speed are notoriously unreliable. Therefore even if it were the case that an impact speed of less than x mph simply could not flex a human spine sufficient to inflict anything other than momentary symptoms, it will not often be the case that the evidence will be such as to compel the court to find that the impact speed was indeed less than x mph.
Vehicle damage is unlikely to be a reliable indicator of impact speed as parts of different cars absorb or transmit force differently to others. There will rarely be clear and detailed evidence as to the precise nature and extent of vehicle damage. Sometimes there will be no, or no obvious, damage, especially in many modern vehicles with absorbent bumper bars beneath the outer bumper. “Vehicle damage reports” are insufficient. They are prepared by insurance assessors simply enquiring into whether any damage is broadly consistent with the account given and whether the likely cost of repair exceeds the value of the vehicle. They do not involve an inspection intended to detect evidence indicative of impact speed. Repair estimates and bills are equally insufficient. Photographs mostly depict only superficial damage and cannot indicate the extent to which force has been transferred to the occupant.
In Armstrong v First York [2005] EWCA Civ 277, the defendant alleged that the impact force involved had not been enough to cause the claimants any injury and therefore their claims to have been injured were fraudulent. The claim was accordingly allocated to the multi-track and a jointly instructed forensic engineer permitted to give evidence. He concluded that the impact was insufficient to cause any injury to the claimants. However, the trial judge(5) unreservedly accepted the claimants as truthful witnesses but also found that the expert’s evidence was logical, consistent and without any apparent error. The judge relied upon the dicta of the Court of Appeal in Cooper Payan Ltd v Southampton Container Terminal Ltd [2003] EWCA Civ 1223 that:
There is no rule of law or practice in such a situation requiring the judge to favour oraccept the evidence of the expert or the evidence of a witness of fact. The judge mustconsider whether he can reconcile the evidence of the expert witness with that of the witness of fact. If he cannot do so, he must consider whether there may be an explanation for the conflict of evidence or for a possible error by either witness, and in the light of all the circumstances make a considered choice which evidence to accept. The circumstances may be such as to require the judge to reach only one conclusion.
The judge found that the claimants’evidence was to be accepted and that the engineer’s evidence involved “some error which has not been detected by this court and to which the court cannot point. The Defendant appealed on the basis that, in line with Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, it was not open to a judge to reject the evidence of an expert without giving clear reasons why. The Court of Appeal dismissed the appeal as the judge had indeed given a reason for rejecting the expert’s evidence namely that it was inconsistent with that of the claimant’s whose evidence he preferred as he was entitled to.
In effect by basing their case on the impossibility of injury and thus alleging “fraud”, the defendant’s insurers had switched the burden of proof onto themselves. Defendants now no longer allege that injury was impossible and therefore the claim is fraud. Rather, as entitled (see Kearsley below), they now allege that injury was so improbable that the claimant simply cannot establish, on the balance of probabilities, the injury claimed.
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