If you feel in need of professional advice, you may be able to get that for free via legal expenses cover. If you are a member of a trade union, you can probably talk to the union’s legal department for advice. You may well have legal expenses cover on your personal car insurance or even your household insurance - usually the advice lines these policies provide will deal with any personal legal problem, not just ones directly related to the insurance policy.
I am not sure whether you were driving professionally or driving your private vehicle at the time of the incident. Even if you were driving professionally, there should hopefully be no need to go through your employer if you need legal help as that would just make things more complex.
Legal expenses cover is inexpensive as part of another insurance policy and can save a fortune if you are unfortunate enough to need it. Despite my legal training (I’m currently a law student), I was in a situation last year where I needed urgent confirmation that my understanding of contract law was correct. Via legal expenses insurance, I was able to speak to a solicitor for free within the hour, when it was far too late in the day to be able to contact my own solicitor.
It is a shame that the hassle of making a third-party witness statement means most people will say nothing, say they saw nothing and do their best to leave the scene without leaving their details. However, I fully understand why people don’t want the hassle of being involved. I join winseer in getting involved when possible, in the interests of justice.
In 2002, I was badly injured in a collision when a car ploughed into my car, which was stationary at traffic lights with the handbrake on. The two other parties involved blamed each other, so I know first-hand the lengthy blame game that can result. It took three years of arguing and my solicitor issuing County Court proceedings before he finally persuaded the insurers of the other parties that it was going to cost them less to settle. The independent barrister’s opinion of the total damages I should receive was less than the expense that would have been incurred in going to court.
Had the case gone to court, it was likely that I would have been awarded those damages in full (no contributory negligence on my part and the complexity of my medical history had been taken into account by the independent barrister) and the only matter in dispute was how to split the blame for the accident between the two parties, on which there was no reliable evidence.
There were third-party witnesses to my accident, which left me housebound for five months. Had anyone come forward to help with a witness statement, it would have save a lot of heartache and trouble for me, as there would have been some basis on which to apportion blame for the incident rather than the statements of the two potentially guilty parties, each of whom wholly blamed the other. I saw nothing as the relevant matters happened behind me when I was looking forwards.The lack of a third-party statement means I will never know what happened that led up to my receipt of some fairly serious injuries.
Please don’t call yourself “stupid enough to give my details”. Had someone come forward after my accident, it could have made a huge difference to my life at a traumatic time. There is also the possibility that the driver who caused the collision is medically unfit to be driving, considering his age and the reports he was hunched over the wheel - that is an angle that the police hopefully will investigate, though independent witness evidence is important to those investigations. The involved parties are less independent and objective than you are likely to be.
It is important that you write down fully what you saw as soon as possible, with diagrams where appropriate. Time will dull and distort your memory, but this is a situation where details matter.
When making these notes, make sure you separate anything that you heard second-hand at the scene from your first-hand observations. You may be asked to give an opinion on something that someone else has said when you were not in a position to observe that aspect of the events first-hand. Don’t be pressured into saying anything that you cannot be sure is true from your own observations - ultimately, you may commit perjury if you say anything that is not rooted in the facts you observed.
Limit any comments you make to factual statements and resist being drawn into giving opinions. The more detail you incorporate, the better.
Here’s two alternative takes on the events:
Statement 1:
The car involved in the collision started out immediately in front of me, in the northbound lane of a single carriageway section of the A21, where there is one lane in each direction [Diagram 1]. The traffic in the northbound direction was mostly ‘nose to tail’ and stationary, though there was occasional movement forwards of a few car lengths. Traffic was moving in the southbound direction at around 30mph. The driver pulled out during a brief gap in oncoming traffic, clipping the rear of an oncoming car as he did so. The car he hit and the next two oncoming cars had to move over to accommodate the overtaking car. The driver swerved back towards the left, coming to rest across the verge with the nose of his car in the hedge, and the tail of his car blocking the northbound lane [Diagram 2]. As the traffic was stationary and the overtaking car was immediately in front of me, my attention was on him for almost the entirety of his manoeuvre and I did not see either of his brake lights illuminate at any time.
Statement 2:
The car responsible for the collision started out immediately in front of me. He made a dangerous overtaking manoeuvre, forcing oncoming traffic to take evasive action and hitting an innocent oncoming motorist. After two oncoming cars swerved to avoid the overtaking car, he cut back across to the left, crashing into the verge. I did not see the driver brake and the driver subsequently claimed that his brakes failed.
The first version is limited to facts, avoiding the dangers of emotive language (which opens up possible arguments of bias on your part), opinions (you are not an expert witness on road safety or collision investigation, just another driver) and speculation. It does not report the opinions of other people - you should only comment that the driver said his brakes failed if you heard him say it. The first version offers diagrams of what you are sure of but avoids detail you are unsure of - if you are unsure how many cars he overtook in the northbound lane, don’t speculate. The first statement is much more useful from a legal point of view.
There seems to be two key issues here - whether the overtaking manoeuvre was safe under the circumstances and how the driver came to rest. From an insurance point of view, the apparently unsafe nature of the entire manoeuvre, not least as other cars had to take evasive action, is more important. The insurers are less interested in the driver’s apparent failure to brake; his negligence originates from his breach of duty of care he owed to the other motorists around him by making an overtaking manoeuvre that a reasonable person could have foreseen was unsafe in the circumstances (following Lord Atkin’s famous statement of the ‘neighbour principle’ in Donoghue v Stevenson - a case well-known to law students and worthy of lay attention, not least as it revolves around a snail in a bottle of ginger beer).
The apportionment of blame is not substantially changed by him not braking when he should have whilst he was in a panic. In the unlikely event there was mechanical failure, this does little to affect the driver’s position - he chose to execute an apparently unsafe manoeuvre leading to multiple collisions.
I would take legal advice if you are unsure, but it might be better if you issue a signed written statement with diagrams and say that you will only answer further questions in writing. That gets away from the potential pressures of being interviewed by insurance company representatives, whose job is to reduce the liability of their employer, when you have nobody else in the room to balance the situation or represent your interests. Issuing a written statement and indicating you do not wish to meet with insurance representatives also avoids the dangers of each insurer having different versions of your statement. It’s probably better to send each party the same statement, concluding along the lines of “This is my recollection of the facts of [time and date]. I am willing to respond to correspondence on this matter, but do not believe there is anything further I can add”.
This approach tries to close off follow-up questions, but if you do get any, you can deal with them in the same way - rather than answering them directly, issue a follow-up statement copied to each party that covers those issues where you have relevant factual comments and politely declines to deal with other matters (“I did not observe anything relevant to the other matters raised in your letter, so cannot comment on them”).
Do not be pressured into saying or writing something that you, personally, are not sure of.
In summary, I would* At the earliest opportunity, make detailed notes and draw diagrams of what you saw and heard, first hand
- Insist on giving information in writing, rather than meeting insurer’s representatives
- Make sure any statement or comment is factual
- Avoid assumption, opinion or speculation
- Hold firm to the limits of what you observed - if you have nothing to say on a matter, politely refuse to say anything
- Politely decline any requests for your opinions
- Give the same information to each party - they will get access to each other’s information in the end if the matter goes to court, but the sooner things are sorted out, the better
- If you give a full police statement, consider leaving it at that - the insurers will be able to get copies of your police statement and you will have had the advantage of letting the police guide you through the statement process
- Read any document in full before you sign it
- Remember that, though it is a pain to have the hassle, your involvement can save a lot of trouble for innocent parties and may result in consequences for the guilty - you would hope for the same help if it was you that was unfortunate enough to be involved
- If you have access to legal advice, consider taking up that advice before taking any action
Disclaimer: I am not a lawyer, just a mere law student, and this does not constitute formal legal advice.
Not unless you are being paid that is.
