Claim settled..what can be done now.

rightyabe · 12-10-2013 12:31am #1

Ok as the heading says my partner was in a car accident. Pulling out from a minor to a major road, and of course she was to blame...on paper at least.

But this case I feel wasn't straight forward, after the accident a Garda told us that the other driver was at fault as he was speeding. When the report came it then said my partner was at fault. We used a solicitor but he was useless.

The reason being 15 seconds before the accident the other driver over took a lady doing excessive speed to which she said to her self that "mr x is going to kill somebody."

We are unaware if Garda took a statement from her at the scene.

1. Would her statement have any weight in the case as she didn't actually see the accident.
2. If she didn't give a statement would any intervention from her make a difference now as my partners insurance has paid out?
3. Does my partner have a pot to pi55 in at the moment, could she claim injuries and losses now as she still has pain and sufferes daily from it.
4. Would a private investigator be any good.

most people in the area are shocked that the other driver is not to blame as there was brake marks going UP the hill on the wrong side of the road for 30m before the impact, our car engine was pushed into the car and the car spun several times and was pushed a distance from the impact mark. The other drivers car was found in a field a small distance away. This all from my partner just after pulling out on her correct side of the road, doing approx 15-20kmh. In a 100kmh zone.

It doesn't add up.

source · 12-10-2013 6:19am

I believe, and I could be wrong about this, but while the other drivers actions may have been the root cause of the accident, your OH would still be to blame as she pulled out onto a main road from a minor road when it was not safe to do so.

It is similar to the general rule in a rear ender, that the driver behind is to blame because he should be leaving sufficient space to avoid an accident.

Zambia · 12-10-2013 6:30am

What report?

Insurance or garda?

rightyabe · 12-10-2013 6:47am

Garda report I believe. Again our solicitor was crap. We moved to Australia a few weeks after so it made communication hard.

She had pulled out and was just straight on her own side of the road. I believe he was going too fast to react and he saw her when she was just pulling out so he swerved, slammed his brakes and by this time my partner was on the correct side, thus causing him to hit straight on, on his wrong side of the road. If he was travelling at the speed limit he would of had loads of time to react and bring the car to a safe stop.

Zambia · 12-10-2013 9:15am

Well obviously as you are both in Oz now it should make little difference to your rating one.

If the Garda report found your missus at fault well logically she should have been charged with the offence of failing to give way etc.

Now if she was charged well then the defence of the other driver was speeding can be contested in a court. If the insurance simply rolled over and payed as to fight the case would be more expensive well then I don't really know where that leaves you to be honest.

The question is at any point did your missus consent to being at fault or did the insurance company even ask you?

rightyabe · 12-10-2013 9:20am

Afaik a letter(summons) came charging her with wreck less driving( or something similar) as we were in oz it wasn't effecting us so we basically ignored it but told our solicitor about it.

So if we ever returned to Ireland, could we contest the charge and take it to court?

Would the other party still get the payout? Could he be made pay it back if we could prove he was speeding?

Zambia · 12-10-2013 9:34am

Has the court date for that been and gone, has your missus been found guilty of that offence?

rightyabe · 12-10-2013 9:38am

Again Zambia I'm not sure. We haven't been home in over 2 years. Letters were coming to her parents house but because we were in oz we didn't care. I'll try and find out more. She rang the Garda that handed in the summons and he said he'd call back sometime later but that was months ago maybe even a year now.

Pro Hoc Vice · 12-10-2013 9:42am

rightyabe wrote: »

Afaik a letter(summons) came charging her with wreck less driving( or something similar) as we were in oz it wasn't effecting us so we basically ignored it but told our solicitor about it.

So if we ever returned to Ireland, could we contest the charge and take it to court?

Would the other party still get the payout? Could he be made pay it back if we could prove he was speeding?

Your OH has been summonsed, I assume in the DC, on return to ireland that case can be heard depending on time of delay. The fact that your OH was summonsed shows that at least one Garda believes she is guilty of an offence.

In relation to the other party it's not you or your OH's decision as to any payout, it is the insurance companies, they may listen to you but it is their decision end of it.

In relation to the comments re your solicitor, I can not see how solicitor has done anything wrong. Your OH had a crash, which at least two people believe she was at fault. Your OH did not issue proceedings against the driver which she is entitled do do if she believes she is right. It is possible for both drivers to sue each other.

If your OH wants to sort this out then come back, fight the case in DC, and if in time issue proceedings against the other driver.

smcgiff · 12-10-2013 9:44am

Was there good visibility to the oncoming car. I.e. straight road or near a bend?

I recall a case a few years back where a car pulled out on an oncoming car - think it may have been a motorway - the judge acknowledged the oncoming car may have been travelling over the speed limit, but the car that pulled out should still have seen the oncoming car and found them at fault.

My advice would be to let it go.

rightyabe · 12-10-2013 9:46am

Cheers infosys

So could my partner still sue the other driver as we stand now? Is there a 3 or 5 year time limit?

What do we have to do now to make a claim?

rightyabe · 12-10-2013 9:49am

smcgiff wrote: »

Was there good visibility to the oncoming car. I.e. straight road or near a bend?

I recall a case a few years back where a car pulled out on an oncoming car - think it may have been a motorway - the judge acknowledged the oncoming car may have been travelling over the speed limit, but the car that pulled out should still have seen the oncoming car and found them at fault.

My advice would be to let it go.

As for vision lines on the corner, they are limited but not to the point were the council has ever fixed it. It is a dodgy place to pull out from and many people have had accidents there. But we have a witness who witnessed him speeding seconds before impact..how crucial could she be?

Zambia · 12-10-2013 9:50am

Well chances are its been resolved at court and if there was no defence in all probability are she has been found guilty.

If you are found guilty at court well that s pretty hard for an insurance company to fight at civil court.

Once again you need some straight answers from your solicitor.

rightyabe · 12-10-2013 9:53am

Zambia wrote: »

Well chances are its been resolved at court and if there was no defence in all probability are she has been found guilty.

If you are found guilty at court well that s pretty hard for an insurance company to fight at civil court.

Once again you need some straight answers from your solicitor.

We were never informed it was going to court on a certain date as such, just she was being charged.

Pro Hoc Vice · 12-10-2013 9:57am

rightyabe wrote: »

Cheers infosys

So could my partner still sue the other driver as we stand now? Is there a 3 or 5 year time limit?

What do we have to do now to make a claim?

The limit is 2 years, for personal injuries, I think its longer for material damage claim, in the back of my head is either 3 or 6 years.

For personal injuries just apply through PIAB, for material damage sue in the correct court for the amount of damage. Your OH will have to be here for any court hearings. Any conviction in relation to the accident could effect chances if success.

rightyabe · 12-10-2013 10:00am

infosys wrote: »

The limit is 2 years, for personal injuries, I think its longer for material damage claim, in the back of my head is either 3 or 6 years.

For personal injuries just apply through PIAB, for material damage sue in the correct court for the amount of damage. Your OH will have to be here for any court hearings. Any conviction in relation to the accident could effect chances if success.

Over 2 years has passed since the accident.

Pro Hoc Vice · 12-10-2013 11:48am

rightyabe wrote: »

Over 2 years has passed since the accident.

Then personal injuries may be out but any claim for damage to the car should be in time I think it's 6 years for that type of claim.

rightyabe · 12-10-2013 12:12pm

infosys wrote: »

Then personal injuries may be out but any claim for damage to the car should be in time I think it's 6 years for that type of claim.

We did claim for the car, weather the solicitor actually done it is another thing.

Pat Mustard · 12-10-2013 3:52pm

rightyabe wrote: »

Afaik a letter(summons) came charging her with wreck less driving( or something similar) as we were in oz it wasn't effecting us so we basically ignored it but told our solicitor about it.

So if we ever returned to Ireland, could we contest the charge and take it to court?

Would the other party still get the payout? Could he be made pay it back if we could prove he was speeding?

There is a lot of missing information, and it is hard to get a picture of what is going on without it.

Questions:

1. Did your partner's insurance company send out a claims assessor to meet your partner at the scene of the accident, and if so, what did he have to say about the liability aspect of the accident?

2. Was an engineer hired on your partner's behalf in relation to the accident, and if so, did he travel out to examine the scene with your partner, and if so what did he have to say about the accident and liability?

3. We know that your partner told her solicitor about the summons for careless/dangerous driving. What we do not know is whether your partner gave any instructions to her solicitor to deal with it in any way. Did she give him any instructions, and if so, what were those instructions? Perhaps she asked him to enter a guilty plea on her behalf or maybe she asked him to look into whether the service of the summons could be successfully contested?

4. Do you know what happened to the criminal road traffic matter (careless/dangerous driving issue) at all? Was your partner convicted and fined, or was it struck out for some reason?

5. Why the long delay in looking into whether or not any conviction for careless/dangerous driving can be appealled? I understand that you are both in Australia, but that didn't stop you from contacting a solicitor or from getting a new solicitor, where necessary. It would be helpful to understand the reason for the delay.

6. Your partner suffered personal injuries in the accident:
(a) When did she first become aware of having an injury?
(b) When did she first go the doctor about the injury?
(c) Why did she not make a claim for personal injuries within two years?

7. It seems from what you are saying that the solicitor had instructions to bring a claim for car damage. It also seems that you don't know whether he made this claim or not. That's very odd. Didn't you ask him if he had got money for you for the car damage? If not, why not?

rightyabe · 13-10-2013 12:39am

The Mustard wrote: »

There is a lot of missing information, and it is hard to get a picture of what is going on without it.

Questions:

1. Did your partner's insurance company send out a claims assessor to meet your partner at the scene of the accident, and if so, what did he have to say about the liability aspect of the accident?

A. No

2. Was an engineer hired on your partner's behalf in relation to the accident, and if so, did he travel out to examine the scene with your partner, and if so what did he have to say about the accident and liability?

A. No

3. We know that your partner told her solicitor about the summons for careless/dangerous driving. What we do not know is whether your partner gave any instructions to her solicitor to deal with it in any way. Did she give him any instructions, and if so, what were those instructions? Perhaps she asked him to enter a guilty plea on her behalf or maybe she asked him to look into whether the service of the summons could be successfully contested?

A. We told him, said she's not taking the blame cause we felt she wasn't to blame and he said because we are out if the country that we shouldn't worry about it.

4. Do you know what happened to the criminal road traffic matter (careless/dangerous driving issue) at all? Was your partner convicted and fined, or was it struck out for some reason?

A. I believe that because we have not returned since, that the summons hasn't been actually issued as it needs to be handed to my partner.,?

5. Why the long delay in looking into whether or not any conviction for careless/dangerous driving can be appealled? I understand that you are both in Australia, but that didn't stop you from contacting a solicitor or from getting a new solicitor, where necessary. It would be helpful to understand the reason for the delay.

A. Again we left decisions to our solicited, we found out last night that he no longer works for the firm and we were never informed about this. He has since retired.

6. Your partner suffered personal injuries in the accident:
(a) When did she first become aware of having an injury?
(b) When did she first go the doctor about the injury?
(c) Why did she not make a claim for personal injuries within two years?

A. She was sore everyday for at least 5-6 months after the accident. She went to the doctor in Australia a few times but was told to just stop working, which was impossible as she needed to work to get a 2nd year visa. We instructed our solicitor that she wanted to claim, he said he would send on a link to a form to fill in but it never came. He also said that we had 5 years to make a personal claim.

7. It seems from what you are saying that the solicitor had instructions to bring a claim for car damage. It also seems that you don't know whether he made this claim or not. That's very odd. Didn't you ask him if he had got money for you for the car damage? If not, why not?

A. We are not motivated by money, the car was worth €2000 max. We were setting up a new life in oz and just wanted to forget the accident as she is lucky to be alive, half a second difference and it would of been a fatal accident. We just want justice and since the other party has got a large payout it has angered us more as in reality we feel he is at fault. He has a reputation and a criminal record for dangerous/ wreck less driving.

Thanks for the good questions.

Pat Mustard · 13-10-2013 10:00pm

rightyabe wrote: »

A. We are not motivated by money, the car was worth €2000 max. We were setting up a new life in oz and just wanted to forget the accident as she is lucky to be alive, half a second difference and it would of been a fatal accident. We just want justice and since the other party has got a large payout it has angered us more as in reality we feel he is at fault. He has a reputation and a criminal record for dangerous/ wreck less driving.

Thanks for the good questions.

I think that the delay may cause problems now. If you want to look into it, I would suggest getting a new solicitor, considering issues that you had with the previous one.

I would look into the claim that should have been made regarding the car damage much further, if I was in your position. I don't think that it's a reasonable position to simply say that the solicitor should have made that claim (I'm not excusing him by any means) and not asking anything about it at all. The Statute of Limitations limits the time to bring legal action, and that's something of which you should be aware.

kennM · 03-11-2013 11:18pm

rightyabe wrote: »

Cheers infosys

So could my partner still sue the other driver as we stand now? Is there a 3 or 5 year time limit?

What do we have to do now to make a claim?

Completely understand the sentiment.... the ultimate question is what the end you want to get to?

From a personal injuries perspective (on your wifes behalf) a claim needs to be started within 2 years of the accident.

Regarding disputing liability... its going to be an uphill battle. The fact your OH was pulling out from a minor road onto a major road the onus is on her to ensure the way is clear to do so. When speed is involved its naturally always black and white. Your insurance company has probably already accepted/settled the claim and the Gardai (in pursuing your OH have made a clear statement that she was liable in their view), to turn this around is going to be a battle.

The only recourse that I could envisage is getting an accident investigators report on the matter (which would have need to have been done at/near the time) which will take all factors into account and be in a position to calculate speed etc.

It would cost time and money to get anywhere on this with what return at the end of it???

IMO unfortunately its one to scratch down to experience... unfortunately too much water under the bridge. Sometimes you win, sometimes you get experience... unfortunately, this is an experience one

Hope this helps

Claim settled..what can be done now.

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