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news
Walter Hamilton (picture via Cycle Law Scotland).jpg£17,000 damages for cyclist from insurers of driver who faked photos of crash scene
The insurers of a motorist in Scotland who tried to use staged photographs to avoid liability after knocking a cyclist from his bike have paid the rider £17,000 in an out-of-court settlement.
Walter Hamilton sustained a serious knee injury as well as facial cuts when the driver of a white van, who had been waiting to turn right, turned across his path.
Mr Hamilton, from Edinburgh, discovered three months after the incident in July 2015 that the motorist involved had sent staged photographs of the scene to his insurers, in what is believed to have been an attempt to avoid losing his no claims bonus.
The driver also gave his insurers a different version of events to those supplied by Mr Hamilton, who had taken his own pictures of the scene which conflicted with the van driver’s account.
However, three months later he discovered that the driver had given his insurance company, who denied liability, a different account of what had happened, even submitting staged photos.
Represented by solicitor Jodi Gordon of Cycle Law Scotland, he therefore lodged took the driver’s insurers, Aviva, to court in to seek redress.
“I couldn’t believe it,” said Mr Hamilton. “The driver was very apologetic at the time and instantly admitted that the collision was his fault.
“But I found myself with the weight of a major insurance company bearing down on me and telling me that, in fact, it was all my fault. It seems that as a cyclist, even though we are the ones injured, we are more likely than not to find ourselves fighting against big corporate machines for what’s right and fair.”
Cycle Law Scotland has been at the forefront of the campaign for the introduction of presumed liability, with the UK one of just five EU member states – the others are Cyprus, Ireland, Malta and Romania – not to have such a system.
> Bereaved families call on Scottish Parliament to bring in presumed liability
Applying to civil cases, it places a presumption of liability in favour of the more vulnerable road user involved in a road traffic collision, unless the other party can establish they were at fault.
Ms Gordon maintained that the present system discriminates against cyclists involved in collisions, saying: “Walter’s case highlights the experience of many cyclists and shows the weakness of our current fault-based system.
“Instead of this being a straightforward case on liability with recompense going to the injured party, we have a situation made worse with drawn-out litigation.
“Introducing a system of presumed liability in Scots civil law would simply mean that a driver’s insurance company would have to prove fault on the part of the cyclist to avoid paying compensation.
“Presumed liability would enable vulnerable road users to be compensated quickly and fairly and without resort to litigation.
“Walter’s case also shows the importance of taking photos, she added. “If possible, photos should be taken immediately following a collision, as these are the best evidence in supporting a particular version of events.
“Insurance companies often try and under-settle cases by putting forward low offers as they did initially in Walter’s case, but with specialist solicitors on side, a fair level of compensation was fought for and won.”
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.
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23 comments
Unhappily, this seems to be quite common. the defendant 9in this case the van driver) has 3 months to put together his/her response to the initial claim. In my case my ride along a dualcarriageway, being knocked off the bike by a van turning across it (I was "T-Boned" but thankfully avoided serious injury), became on the cuprit's statement "The cyclist emerged from the pavement in front of my correctly proceeding vehicle". (Interesting word, "Emerged" like as in "hidden from view")
His statement to the police at the time of the accident read "I was driving from Bristol road. I turned across the road into South Road and I hit something. It was a bike. I stopped as soon as I could". Note the phrase "it was a bike" - no mention of the orange-clad 64-year old rider who bounced off his windscreen in front of his nose. Nor of any "emerging" from the pavement.
Needless to say that I could say more, but I won't. Thank goodness for the police report, without it I would have been in trouble.
As a driver, until the accident (more accuratley, until I read his statement) I was against the "Presumed Liability" proposals, and looked askance at those with on-board videos. I have now changed my mind about presumed liability, and carry my silent witness on every ride.
Does no one at road.cc ever proof read their articles any more? The 3rd, 4th and 5th paragraphs appear to give the same information twice.
I'm surprised the police aren't interested as it sounds like he tried to pervert the course of justice to avoid any chance of a careless/dangerous driving charge against him. I'd expect his insurance company will be looking to recoup any expenses that they have encountered (which would presumably include the £17,000 amongst other costs). It would be nice if every insurance company decides to not insure him in the future so that he's not able to (legally) drive any more.
Why would they do that? There's good money to be made in insuring numpties because when half the market turns their back on them they have less choice so will pay through the nose.
It depends on the insurance company and their relationship with the underwriters. If they insure the more "risky" individuals (e.g. people who have had previous insurance polices voided and/or been involved in road incidents due to poor driving ability), then there's a higher risk that a claim will be paid out (which gets paid by the underwriters). If that happens too often (burn rate), then the underwriter will get somewhat twitchy about losing their money and either stop dealing with the insurance company or increase their rates substantially. There's a point at which the increased rates makes it impossible to sell a policy (e.g. the annual premium becomes tens of thousands), so canny insurance companies try to avoid that scenario. The other option is that the insurance company is planning on making a quick buck and then disappearing, though that type of insurance company will likely find it difficult to find an underwriter to work with it.
This raises the rather ugly possibility that if the cyclist hadn't taken his own pictures then he would have been denied his rightful compensation. You have to wonder how many times this has actually happened.
Has the driver been prosecuted for dangerous driving or something similar, as well as attempting to pervert the course of justice? Surely he should be having the book thrown at him to deter anyone considering doing the same.
If he pulled out without looking, then I think that's "only" careless driving.
And, explaining yourself in your defence and not exactly telling the whole truth (lying by omission) is one thing. But surely making up a whole new - and untruthful- set of photos is a whole new level of lying, and is full-on insurance fraud?
Firstly I am all for presumed liability, but using this case to put forward the argument is a bit self defeating as the driver of the larger vehicle produced evidence (albiet faked) to "prove" the incident was not his fault.
£17K is quite a substantial reward and unless there is a chunky loss of earnings claim sitting within it, it is representative of a fairly permanent injury
£17k for a "fairly permanent injury"? Add some zero's.
Not sure just what the serious knee injury was, or the likelihood of any permanent impairment. But I'd be resentful at settling for that small amount if there was even a suggestion of permanent damage. Injuries to knee joints can lead to many complications at hip and spine and pronounced disability in later years.
"As for the fraud, I suspect the only "crime" potentially committed could be perjury as it's not really fraud to lie about a defence"
It really should be an offence as the driver is defrauding an honest claimant out of a financial settlement which they are entitled too.
The deliberate introduction of false evidence could be seen as an attempt to pervert the course of justice. My guess is the judge will have passed on his displeasure to the police and/or CPS.
Out of Court Settlement!
Out of court settlement would be used to resolve a civil case not a criminal one. There should still be a police investigation for perverting the course of justice.
This is an awful and one sided article.
The insurer was lied to, how would they even know? They have a duty to listen to their client and then based on what they are being told defend it if appropriate. They did nothing wrong
In addition, the comment that insurers try often try and under-settle cases by putting forward low offers is just unfounded and disrespectful to the insurance. In this the offer was based on a liability split due to lies the driver told his insurer.
In many cases claimant and pursuer solicitors put forward ridiculous and unrealistic offers of settlement which are rejected, prolong the claim and often just a tool to force it into litigation to increase costs which after all is what most solicitors are interested in
As for the fraud, I suspect the only "crime" potentially committed could be perjury as it's not really fraud to lie about a defence
Aviva are shit when it comes to making a claim. The driver who knocked me off my Bike was with Aviva, and even though he admitted liability from the get go they failed to interact with me. When they did it was at 4.30 on a Friday afternoon via email. I gave up and went with Digby Brown who filled court papers on them and they too settled out of court. I received about 5 times what I would have done if they had just played ball and paid out, and no doubt they received a whopping bill from Digby Brown into the bargain too.
What a bloody cheat. Very different scenario he tried to get away with.
Definitely take photos kids.
There's no incentive for insurance companies to encourage a presumed liability system as most of their clients are motorists. It will take political leadership to introduce such laws and frankly we have politicians in this country who show zero leadership when it comes to anything that could be construed as anti-motorists.
Anyone who has cycled in Europe will know how much safer it feels, a lot of which is down to driver attitude which in turn is partly driven by their legal framework. I also used to live and drive their for some years - one of the things that was constantly impressed on me whilst I was adapting to driving there was my responsibility for pedestrians and cyclists safety. If they make a small yet predictable mistake, it is my responsibility to be able to compensate for that.
Have a look here to see the "actual" and "reconstructed" photos.
great link; would have been good if article had shown all three pictures to make the story comprehensive. Did the author seek permission or was it an editorial decision?
Would be interesting to know what the real vs fake pictures were like
Aviva's civil claim would appear to be for legal costs arising from the court case. If the driver had told the truth, they wouldn't have incurred legal costs.
But I would expect Inspector Knacker to pop round to the driver for a quiet chat about insurance fraud and maybe driving offences as well.
Overall, he's probably not going to have a good time.