I hit another vehicle from behind - and proved in court it was the other drivers' fault. And along the way I learnt a lot about the courts, topping up my cynicism tank along the way.
My motor vehicle accident
I was involved in a motor vehicle accident which was the other person's fault - something I was able to prove in court. But, along the way there were many obstacles and misunderstandings around insurance, the regulations around "written off vehicles", and the courts. I never planned to go to court - but that's where I ended up - and once I was headed towards the court, I became passionate about getting there - as much an experiment in the face of bureaucratic obstructionism as anything else. But let me start at the beginning. I think it's quite a story.
At around 9.10 am on 26 July 2014 I was driving North along Rooty Hill Rd. North around Plumpton, Sydney. A vehicle turned in front of me, doing a U-turn. It was owned by T.Z.M Crane Services, and Ms. T Milewska was the driver. At first I thought it would continue the U-turn, but it stopped in front of me - I applied the brakes fully, and while I slowed down I still hit the other vehicle.
I was somewhat stunned, but the driver behind me, Mr. BF, offered his details - something that was very gracious of him, and came to be crucial as time went on. I knew what happened - but I needed to bring a lot to bear to prove that it happened the way I said.
Following the accident, I continued my journey to my friend Mr. GI's house, stopping in at Plumpton Mc Donalds to buy breakfast. I saw both occupants of the car I'd collided with there, but I didn't say hello.
I phoned the NRMA on the next working day. They were gracious enough to accept the accident was not my fault and I would keep my no claim bonus. I arranged to drive my vehicle to the NRMA nominated repairers a few days later.
However, the repairers said that while the damage was superficial - as accidents go - a v-shaped impact in the middle of the bonnet - pushing up against the radiator and air-conditioner cooler - it would have cost more than $3,000 to repair - and my vehicle was only worth about $3,000.
Your parents probably told you "you will insure your house and car properly", and I was mindlessly following this advice; I accepted the "market valuation clause" when I signed up for the policy. So, my insurance was not what I thought it was, but don't really blame the NRMA. Life does have its complexities, and it is difficult to be across all of them.
A few years down the track, maybe I would have looked at my car and been willing to trade it in. But, as it was, I inherited it from my mother, and I was attached to it. I was annoyed that I was inconvenienced as the result of another driver's actions, and as the saying goes I "just wanted my car back".
While you could attach a dollar value to the car, I had maintained it well and had a service history. You couldn't get a car with the same history for the same price. I was contemplating bailing from car ownership - just driving pod cars. I looked into what cars would be available close to where I lived. I was tempted, at the time, just to abandon private car ownership all together.
A little context - My own interest in the law
I've had a long time interest in the law. Apart from this particular collision, I've had other encounters with the law. Not just civil law - when you're in conflict with someone else - by also various other traffic offences. The law both towers above us and is something we are mostly ignorant of. When we commit a traffic offence, the law is something we stumble over, and can then wonder "what was that?". The law will pick over what you've done, putting interpretations on it and deeming that you should have been aware of such-and-such at the time, while at the time you were just "making things up as you went along", with not even a hint of the motives that the law somehow posits of you. It is something you can find very strange when you're embedded in it.
But while I've had these experiences, this article - at this stage - is focused on the court and other actions around the accident I had. I hope to write more about these other aspects of the law in the future. But at this stage, in contrast to the law being something we "stumble over", we can initiate legal action. That's something we can all do, but I'm sure many of us would be unaware that we even have this option. I know I wasn't - it was something I developed an understanding of along the way. But, on the other hand, perhaps many of us might be vaguely aware of our legal options, but could not be bothered - with only either circumstance or passion driving us towards this end.
But, separately to my own encounters with the law, I've also had a fascination with it and its place in society. The law is a strange institution - in the background - at some level processing crime, but also giving us other options for forcing money out of others. Inhabited by a select priesthood, some inordinately well remunerated. I've had several encounters with the legal system, and definitely have a perspective on it. While you might be ignorant of it, I think it is, well, really healthy to be aware of that thing, the legal system. And hopefully, apart from getting an awareness of some of the legal details around accidents, that's something you'll get from this article.
Insurance?
Since the accident, I discovered my bushings and shock springs need replacement, but I also decided not to get comprehensive insurance. I've installed one of those "crash cameras" before I spend that money. That's now my insurance policy. Yes, I'm now a lot more committed to this car than I was previously. Life has its turns ... More pragmatic people might have "taken the money and run", but I didn't want to. It seemed I was on a "conveyor belt", where they just wanted to take my car away from me - I know other people have also felt this way after an accident.
To be fair, having insurance may not just be about "dollars", but rather "saving hassle". If saving hassle was the goal, I could have just taken the money. The problem is the "hassle free" option the insurer provides may not be something you're comfortable with. It may not even be the best financial option. My conclusion after what I've been through is that if you can afford to self-insure a vehicle worth less than $5,000 you should. You still need third-party insurance against damage to any vehicle you collide with. What your parents told you still makes sense. It probably makes sense to have comprehensive insurance for a vehicle vehicle worth $10,000 or more, and in between it's a judgement call. Now, if saving hassle is the main goal, it may make sense to comprehensively insure a vehicle less than $10,000. But make sure you're clear about your reasons. I know I wasn't.
But, continuing. At first I thought there was just you and your insurer. But the NRMA assessor noted I could "go third party" against the other car's insurer, and try to get them to pay. I would not be limited to the written off value. Limits applied to arrangement you had with your insurer - as distinct to the legal relationship you have with the people who caused your loss. This was the first of many legal subtleties I had to get my head around. It would get much more complicated, and I found the RMS ( Roads and Maritime Service - the regulator of licenses and motor vehicle registration in NSW, Australia) were not making it easy - if anything, they seemed obstructive.
Regulatory twilight, and more options
A first issue as I entered the regulatory twilight was whether I should drive my car at all. The NRMA assessor recommended against it. Still - the brakes and steering were totally unaffected. The motor still worked. The headlights still worked, while the glass in one was cracked. You couldn't open the bonnet, but apart from that coolant flow through the radiator and motor was fine. Now, to get the car re-registered, it would have to be drivable and undamaged. But ... in the meantime it was drivable - in my opinion, safely - and so it was on my own head if I drove it. I could not imagine its condition contributing to the damage or injury of another vehicle. I had a bit less body to crumple in an accident - but there was still the chassis around the wheels and the left and right sides, not to mention a decent amount in the middle. So, I drove it - somewhat conservatively, I did not drive it out of Sydney. That was a bit limiting. "Going third party" meant contacting the other party's insurer, Allianz, and arranging to have the car repaired myself without the NRMA's involvement.
Another option, which my friend GJ told me about was "keeping the salvage". In other words, getting paid out - not $3,000 but rather keeping the car and being paid $3,000 less the value of the wreck - nominally $300, so I'd be paid $2,700 - and then organising the repairs myself. As damage went - it was relatively minor. Cost a bit, but there was no structural damage. I'm sure I could have organised an effective private repair, my friend GJ said the vehicle was "10 minutes, one headlight and a tube of super-glue from being roadworthy". I was sure the vehicle would be in a roadworthy condition afterwards. But, I'd have to have the vehicle assessed by a licensed repairer afterwards. That was daunting. Would they be reasonable or petty? Certainly, the documentation from the RMS made the whole process seem scary. They sure didn't seem to want to make it easy.
However, as far as the RMS was concerned, it would then become a "registered write off", with many hoops to jump through. It gets worse if your car is less than 15 years old. You have the costs to register the forms and jump through the hoops - as compared to the costs of repair. So, one challenge was to figure out how old my car was. The problem was, I couldn't open the bonnet to check the plate inside - because if I did, I would not be able to close the bonnet, given how munched-up the front was. So, I then phoned up the RMS to find out - and they wouldn't tell me! WTF? They said I'd have to talk to my insurer. My own #$%#$% car and they wouldn't tell me? That was just so bizzare. Offensive. Grrr. Having the insurance policy was, in its own way, limiting. Not for the first time, I wished I didn't have it. So, I spoke to the NRMA as I was forced to, and found out my car was older than 15 years old. Whew. As it happened, I did not go down the "registered write off" track, but it was one of the strange encounters I had along the way. I was in a maze of twisty passages, all alike.
So, I filled in a form and emailed it in to Allianz. At the same time, I started to look for my own repairer. I spoke to a mechanic who did shocks and suspension and the green slip for my car. It was too big for him, but he put me on to George's Smash Repairs ( GSR). GJ has good things to say about him - "look at this repair on my wife's car - it's quality is superb - you can't see the original damage!".
And, when you visit GSR - the place has a vibe about it. George spends much of his time behind a phone making stuff happen. The place revolves around him. It was an interesting experience just to be around him as he got on the phone and worked through some possibilities. For all my initiative in seeking out a repairer, I was still pretty overwhelmed. George's energy and initiative were vital, and came at just the right time. George phoned up Allianz, and at that point they were willing to pay for the damage to my vehicle. And so I became committed.
A tangible conflict rises up
But then, after arranging for repairs at George's, at the 11th hour, Allianz pulled the plug, refusing to pay! It was confusing. But, now that there was a tangible conflict, I saw that it made sense to get legal advice. This I did; I contacted the Macquarie Community Legal Centre (MLC) operating out of Parramatta. They were quite helpful, but did not tell me that I only got to rub the magic lamp three times - something I'll get to later.
But, one thing the MLC suggested doing was paying an accident assessor to report on the damage on the vehicles and the accident, that I ask Allianz for copies of photos of damage to the other vehicle, with another letter to them. In fact, the MLC were skeptical of my ability to use my knowledge of physics and accidents to persuade the court of my version of events, with the view that my "credentials" would be put under the microscope and challenged. I think a firm I communicated with later also had the same view. That's why the MLC suggested an accident assessor report. In addition, though, it would hopefully have more influence with Allianz. Apart from the "expert" nature of the report, it also showed I was serious enough to spend $300 of my own money. In fact, when it came to the hearing, I think my outline, drawing from my knowledge of physics was influential. My current understanding of this is that when you're talking about less than $10,000 in value, the courts have much more flexibility in taking on board arguments without scrutinising whether the individual is a "credible expert" or not. I thought that all I really needed to do was write the letter which made the case - so obvious with the witness' statement. The report cost about $300 - and if Allianz paid up, they would have to pay this cost. While the future was uncertain, I felt strongly, enough to pay the $300.
According to the NRMA, the other side claimed they were stationary at lights and I hit them from behind. WTF? Even with the witness' statement? When I phoned Allianz they said the witness was not being clear about exactly how the accident happened. Now, I later managed to have a look at the email that BF wrote to the insurers, and I now look back wondering how on earth Allianz could have thought that?
What I'm saying is backed by my own exact recollections and validated by the court. The other side made up shit. Why? One assumes they wanted to keep their no-claim bonus. I find that to be quite greedy and selfish of them, further avoiding their own responsibility. I know I've crashed into cars while parking. There was nobody around, but I left a note on the windscreen, and have indeed paid up. Why did they do that? You wonder about the state of "community" and "responsibility" in our world. If people were more honest to start with, you'd have less need for the courts. So, this one action - one I see as selfish - initiated a whole complex process, and wasted a lot of time on the part of many people - not to mention the courts. And Allianz, along the way, refused to consider any of the detail of what I was putting to them. Delaying tactics? Obstructionism? Gaslighting? Take your pick.
Reflecting on how the accident happened
I was thinking about the accident. I'm a physics graduate, and have taught the basics of motor vehicle collisions in my "Science all around us" courses. Now, if I'd collided with a vehicle directly in front of me "face on", it would crumple the whole front of my car. Under what conditions would a v-shaped indentation be made in my bonnet? If I hit the rear corner of the other vehicle. This would only happen if it turned from one side of me and stopped in front of me. If it was stationary and then turned, either my left or right headlight would be damaged. It was well after the accident that I had this "aha!" experience - but I made this leap only by figuring out how I could show the other parties' story incorrect . You can see it in the statement I made to the court.
I contacted Allianz, by phone and emailed them with my story. At first, I pointed out to them the damage pattern and the fact there was a witness supporting my version of events. But, they refused to engage with or even acknowledge the points I put forward. I pointed out the accident assesor's report. But still, no acknowledgement. It seemed they were brick-walling, perhaps hoping that in the uncertainty, with no external validation, I would lose my confidence. In fact, this made me even more interested in finding out just how an external party - the court - would relate to my story.
There was some to-and-froing with the Macquarie Legal Centre - they noted that if Allianz persisted in refusing to pay up, I would then have send a letter of demand, and after that - if no joy - then lodge a statement of claim with the courts. Allianz were never going to tell me that. "The matter was closed", they said.
Along the way, I wrung my hands over another issue. I was to strike many more. When Allianz provided photos of damage to the other vehicle, there was a disclaimer - "these are private photos and should not be shared". So - I mean - can I use them when making a submission to the court? I mean, what at the details? You have visions that you make a case which definitively proves your case, but then there's a "gotcha" - you shouldn't have shared that material - so now you lose the case. You certainly develop a paranoia about these things. And the problem is that these sort of issues crop up all over - and it's impractical to get seek legal advice on each and every one.
But that was wisdom to be gained later. At the time I asked the the Macquarie Legal Centre. It seemed they didn't really understand my dillema, and just gave some general advice. But further, they said I'd used up my three communications I was able to have with them - no more! And yet, they'd encouraged me to contact them again if I had further issues, never pointing out that I could only rub the magic lamp three times. Nice of them to help, but it would have been nice to let me know of that ... Grrr. ( In fact, LL, reading this article now tells me that this disclaimer "has no legal standing". Sigh. Well, there you go. )
After getting his far, I was again on my own. I tried to contact a local solicitor. It was the shadow of Christmas, and took some effort. Some did not get back to me. But, finally one did. They were very helpful. I was impressed with their ability to do the calculations of speed and impact around the accident, something I had developed over time drawing from my physics background.
They told me I might have some contributory negligence because maybe I should have slowed down as soon as I realised the problem. I was expecting anyone with the nerve to do such a U-turn would complete it, and a little later I realised that not only had they turned in front of me - they had stoppped. But, you start to appreciate how people try to tell stories about what happened, that grasp at certain aspects and ignore others. They suggested I conduct the case myself, with their advice. It shone a light on the nature of legal conflict. As the dollars disputed goes up, it makes more sense to spend some money on professional lawyers. But, at this level, the cost of lawyers would exceed the value contested. That means putting in a lot of your own time. Which I didn't mind - I was getting the experience, after all.
The Legal Perogative - the legal "right" ...
I had crossed the divide. While I never planned to go to court, I was now emotionally committed. I'd invested a lot of time, and wasn't about to throw it away. Perhaps I was falling for the "Sunk Cost Fallacy". But my arguments had been ignored. I wanted to see what an objective party - the courts - would think of those arguments which had been completely ignored. Even if it did not go my way, I was willing to spend the time and money to see what happened - if they were just stonewalling, hoping I'd stop - that thought only made me keener to push it. But, also, I was channeling that sentiment from a hundred years or so back:
"SIR! I DEMAND SATISFACTION"
It brings up the "legal rights" we have, and their history - something I found out from Kropotkin's "Mutual Aid" and Herbert Spencer's "The Study of Sociology". These books tell us that the ability to take others to court orginates in the ancient right of nobles to trial by combat. Nowadays, the only people with this "right" are sovereigns of nations who go to war with each other. Still, there was a time where nobles had the right to trial by combat, including duelling. We don't really do that these days, but courts are an echo of this historical privilege.
And the strange thing is, we have a legal "right" to do this. You wonder about these rights. Legally qualified people say this "right" is a wonderful noble thing, at the same time as they will try to dissuade you from going to court. Of course, this begs the question of just what this "rights" thing is, and where it "comes from". Rights, to my way of thinking, just like embarassment and other things, only emerge when there's a community. What are the "rights" of a solitary individual marooned on an Island? Not a meaningful question, really. So, rights are normally about blocking the noxious initiatives of others more than it is about enabling someone's "individual perogatives".
Way back when, there was the right of redress if you've been wronged - including the right of revenge. Now, of course, people can well do stuff, commit acts of violence, etc. etc. But, do others see it as legitimate? That's one brake. And then you have the problem of whether whoever-it-was really did wrong you, or do you just think they did? What if it is generally acknowledged someone wronged you, but there is no legal system or external form of redress? Revenge would then perhaps be socially legitimated.
Replacing "personal revenge", the chief of the tribe mediated disputes. Apart from being the best warrior / hunter, this is was one of the duties of chief where you needed to be "wise" in adjudicating conflicts between members of the tribe. As time went on, societies became more complex with sub-parts and necessary communication in-between. What used to be the "chief" was separated out into religion, military leadership ( and specialist soldiers ), settling disputes - and the "notional" leader. "Chiefs" retained the "right" of trial by combat. And, between this vestigal right to trial by combat, and the right to appeal a wrong to the chief of the tribe, we have the right to challenge others through the legal system.
If we've been wronged, we have the "right" to personally seek redress through the courts. If course, in an abstract way, it would be better if we never wronged each other in the first place, but never mind ... This "right" is held up as something good, noble and worthwhile, with the facilitation of this right being held up by the courts and laywers along the way. But, in a sense, this is not some "wonderful, grand" noble right, but rather an echo of our violent and heirachical origins, mangled up a bit along the way.
While this "right" is one emerging from personal affront, we've come a long way. Rather than personal affront, we're talking about financial loss or gain. It means that insurance companies make financial decisions, rather than ones involving truth or personal affront. Our world became more complex, with personal elements of "being wronged" sitting in a financial web, with people paying money to "mitigate risks".
There's now a strange intersection of possibilities, constraints and consequences. If by going to court you end up losing, you pay the costs that the other side spent to get their case to court. This supposed to stop people from making false claims. But you do wonder ....
The problem is that the effective cost to the other side - in terms of time spent dealing with an issue is not properly compensated. It is only the fees that solicitors charge you and various out-of-pocked charges. So, this means can legally harass. Notionally, if you're held to account in the courts, you would end up paying for the other sides costs - but that's only once court actions are initiated. If people make "legal noises" which you need to deal with, but things never actually get to court, then you'll never get compensated for that time. Equally, if people are "unreasonable" in their dealings with you, and force you to take them to court for something they genuinely caused - well, there can be an incentive for them to behave unreasonably - as seems the case in my interaction with Allianz.
Even then, there's the vagaries of the court. At court, the onus is on you to prove your version of events. But the problem is, while you may know what happened, proving it can be a challenge. In this situation, bizzarely the courts seem to be selecting not only for the truth, but also for effective lies. There's an incentive to lie. If you can make up a lie which cannot be disproven, you'll get away with it. Sigh. In my case, I was able to discover details which I was able to use to prove my case after I committed to the court action. Mind you, I thought that having a witness would be the equivalent of a lay-down-misere - I got a shock when I found Allianz dragging their heels.
Even before you get to court, people are critical about the ability of the court to find in your favour. Even if you have something you feel sure of, or the solicitors feel confident of, there's the view that you can't be sure of how things will go in court. The courts are such a fickle and unpredictable oracle that even when you're sure of your position it's seen seen as a chancy in court. With the courts so fickle, it makes you wonder how the threat of being levied costs can, indeed, ever be considered a disincentive to spurious legal action. There are even more negative views - that the courts are there to protect the wealthy, because they are more able to throw money at a case and drag it out. That's thinking about the courts as being biased in favour of the wealthy, rather than just fickle.
Strangely, most people who were either legally qualified or laden with life experience advised against going to court. There was the effort - but, well, I was emotional about "the truth", and wanting the wrong identified. They had a lack of confidence in the court finding in my favour, even with me in the right. Further, while the other party might be "mostly" to blame, I could still be hit with "contributory negligence". Still, I can't imagine that a lesser impact would have cost less to fix - you have to have so much less that the strut is not damaged, or the radiator and stuff not impacted. In any case, Allianz were not admitting that their party was mostly at fault together with my contributory negligence - they completely ignored my arguments - which just got my back up. In far-way Western Australia, a lawyer over there said it was fair enough that I was "standing up for myself and my rights", even as my cousin, KB, another lawyer, was shaking her head.
Of solicitors, relationships, and written-off vehicles
Several things were happening. My awareness of my options was developing - along with the legal system. While Allianz were ignoring my communications, I was now obliged to make the letter of demand, followed by a statement of claim at court, which would initiate the legal process. But ... in the meantime, there was the possibility of receiving the value of my car from my own insurer, and letting them keep the wreck - or jumping through some horrible regulatory hoops if I was to keep the wreck and arrange my own repair.
But ... I finally cut this Gordian knot, at least to my understanding. A car only becomes written off if your own insurance policy pays out while the car is still damaged, prior to repair. If you get the money out of the other party, then you're just getting money to repair your car. And that's also the case - if you pay for your own repairs up-front and then get repaid..
These laws seem intended to prevent insurance fraud, which of necessity happens when you are paid off from your own insurance policy. So, if I paid for the repair out of my own pocket, that would lift my car out of the jaws of written-off vehicle status. It's another reason not to have comprehensive insurance - your options are limited. I wonder if the regulations were also intended to get old cars off the road.
So, I bit the bullet and coughed up the money to George to have my car repaired. Not to gloat, but I could pay for a decent new car with cash. My insurance was much more against the repairs to someone else's vehicle. If I could have gotten my car back, I'd have gone through the insurer. But, to keep my car, I had to look at other options. Still, maybe my claim against the other driver would be unsuccessful. I checked with the NRMA - they would be willing to "revert" to the original claim if my "third party" approach hit a wall. But ... what about the situation now I've repaired my car myself? Well, I had to take the plunge. I became anxious that accepting a payout from the NRMA might mean my car hit "repairable write off status" - though they'd be paying for damage after-the-repair rather than paying out a wreck or paying for repairs before they were made. This was another area of regulatory twilight. I was juggling. It was hard to get straight answers. I was perversely comfortable with that - with the risk, with the adventure.
The administrative process - Letter of Demand
After being ignored by Allianz, my next step - which they did not acknowledge - was to ignore that they were ignoring me, and write a Letter of Demand to the other party. The MLC suggested I send a copy of the letter ( including elements of the accident assessor report ) to both the other vehicle's owner and Allianz. This, however, prompted a stroppy letter from Allianz, where they also claimed that I'd not responded to their emails - which was strange, as I'd received a lot of emails over the period in question from other people, and had also received emails from Allianz previously ( for example, ones including the photos of damage to the other vehicle). But, eventually, Allanz responded to my letter of demand, saying they would only consider further court action. In fact, their letters had been making veiled threats about launching a legal case against me into the bargain. Huh?
But, based on the free advice from the local solicitor, I needed to make one last attempt to contact Allianz by phone and let them know I intended taking the matter to court. It was not a call I was comfortable making, and I was not at my most assertive. There was little structure to the situation - one recompense was that there would more structure at court, even if filling in the forms would be challenging. Still, I had begun stoking the furnace; the pressure was building up. I would end up passionate and articulate when I finally reached court.
As my "Letter of Demand" had been ignored, the next step was to file the first court form - a "Statement of Claim". I worked through the information on the "Law Access" web site. Looking back, the sequence of forms seems quite straight forward. But, at the time, it was daunting, particularly with the Law Access written to cover many different legal cases and options. Another legal twilight. The law access site encouraged me to take the drafting of my statement of claim seriously; I was. But I was still anxious I'd put a word wrong and lose the case. As it happened, yes it was worth taking seriously, but my anxiety was misplaced. The Law Access website encourages you to get legal advice in order to ensure your statement of claim is properly worded. However, when you're talking about a $3000 odd dollar claim, it's a bit strange to be adding hundreds of dollars here and there. I tried to get in touch with my local legal firm, but they had become strangely quiet, even though they originally spoke about becoming more involved. They did not return my messages. Sigh. Another door had shut.
However, as I was to find out later, my Statement of Claim, which I had prepared myself, was entirely fine, apart from one issue over where to put the dollars I paid for the accident assessor report, and how to calculate the total. But the template was supposed to be a "guide". If it does not include a spot for the accident assessor fees, then the logical thing was to add a row corresponding to that. I mean, that's what being a "template" means? But, no, I was supposed to include the costs of the accident assessor report under the existing row, "legal costs". It was something the clerk at the courts noticed - while he claimed to be legally ignorant, he was particular about that point. Mmmm. Public servants. They know their forms. But - again, no issues about how I was expressing myself. No legal issues. But ... while a generalisation of "seek legal advice" may in some cases make sense, it is still a matter of context. It's too easy a statement to make. I was to hit similar issues later.
But there was another bump on the road. While I had phoned Allianz to let them know of my intention to initiate the court case first, in fact they initiated the court case first. There was a woman who turned up on my doorstep to serve the court documents on me. Bit of a shock to the system. But she was pretty. So, I had 2 weeks to make my own defence, together with my own statement of claim.
In fact, there were now two court cases happening - Allianz were trying to claim the money for the repairs to their client's vehicle from me, and I was trying to claim the costs to repair my vehicle from them. But, as far as their claim against me went, I needed to get the NRMA onto it. I was anxious. While the NRMA were pretty good on the phone, they were slow to react to my written correspondence. Now, I really had to prompt them. It was all silent for a while ... and then, finally, the NRMA solicitors contacted me. Whew. Things started to happen.
In the meantime, I was completing my statement of claim. Now, while it was getting a bit messy with the counter-claim from Allianz and the NRMA involved, it did mean that I had some help with my own claim against Allianz, as I was able to follow the NRMA solicitor's lead. So, now, there were two cases running, which we needed to combine into one. The next step after lodgement of the statement of claim was the pre-trial review, where the NRMA solicitors said we could combine the two cases together. In addition, dates for hearing and the submission of evidence would be set. I attended, and shook hands with the representative of Allianz. Ah, the aura of civility that pervades the courts. In any case, I wasn't inclined to make a fuss. But there were people at the pre-trial review who were talking about the people they were against in disparaging terms. Hummmm....
Along the way, the NRMA solicitors phoned encouraging me to abandon the case. The NRMA was now willing to pay me out. I was concerned this would mean my car would hit "repairable-write-off" status with the scary RMS in the shadows. They assured me this wouldn't happen, but I was still anxious. In any case, I wanted to pursue the case. The other driver would not be in court, there would only be statements, so I would not be facing them. Much as I was upset at how it seemed the other driver was making up shit, I was also upset at Allianz ignoring me. I'd put in lot of effort. I could have a legal experience, much as I never intended going to court. In any case, I'd have a story to tell, and something to write about ( are you thinking "derrrr..." ?) . I wasn't going to give up. I think that even at that stage, an informed impartial person would have given me good odds.
Preparing the evidence
With two weeks to prepare the evidence, I got cracking. I did get some help from a legally qualified friend, BR. His specialty was property law, and while he did not consider himself qualified to consider the details of motor accident law, he was willing to review the material I had put together for general issues of legal expression. Most of his advice was to "get rid of this ... this ... and this". A bit sad, but he was gracious enough to give his advice, and I took it on board.
I was originally justifying my presence at court, particularly given how people seemed to be saying I was pushing it in taking things to court. However, BR said that I was "entitled" to bring a matter to court, and there was no need. Further, I was entitled to have a good driving record presumed. This was a bit of a contrast to the stone-walling I had received from Allianz. For all of these attempts to dissuade me to turn up to court, it was perfectly OK as far as the courts were concerned. Of course, why was I going to court, and using up their time? Fundamentally, because Allianz refused to seriously consider the statements I'd made. Perhaps for financial reasons. Financial reasons that could well trump any desire to search for, and acknowledge the truth. So, you have the courts on the one side, with their strange, archaic ideals of proprietry, and institutions making pragmatic financially based decisions on the other. An odd contrast.
Also, BR filled me in on how to "convert" web pages to "evidence". I sign a statement that I accessed this website on such-and-such date, and here is printout from that. Just how you did that was really puzzling to start with. But it seems so simple now. Apart from the damage patterns to the two vehicles, and the witness' email, the statement from the other owner was the accident happened about 3pm. I knew it happened a bit after 9am. How could I prove that? Well, the logs of the M2 and M7 show me entering the area about 9am, and leaving late in the evening. And there was the statement from my friend GI, staying that the car was definitely on his driveway at 3pm. Aha! Gotcha!
Still, the problem was getting in touch with the NRMA solicitors. They really were lax about returning my messages. But, very late in the piece, at the 11th hour, I turned up at their office to make my statement, and I ended up posting my statement before midnight on the day it was due. Thanks for putting me to that inconvenience, guys. As it turned out, this problem with timing was not really an issue. But it stressed me out. Not a good look, guys. But - to give the NRMA solicitors credit - they did give it their all once they were committed. While the NRMA had to be dragged kicking and screaming to the case, it seems they also took it seriously. But I had to push things, and they were forever inviting me to give up. I had a right to take things to court, much as the NRMA were unenthusiastic, they were not about to get in the way of that right.
But, along the way I received more advice - more material to remove from the statement. Which I did. You can see details of the statements I made, along with the some early material which was deleted, here). But, I had some encouragement - that the email from BF did in fact support my version of events ( how could Allanz ever have thought otherwise?), and the fact that the other party pretty much admitted guilt to me also helped.
Now, there's another thing I learnt along the way. While I sure took what advice I was given on board, you have to be careful about legal professionals' assessment of your chances. I'd been given various less-than-positive assessments of my chances along the way. However, the more they then found out about my case, the more positive they became. So, it is important to realise that while lawyers may be making their assessments, they may not be considering factors that you find important - because at various stages, you can only say so much - I mean, I did not want to overwhelm them - and they had asked for the "summary version". But, because you're giving them the summary version, it means you've left stuff out. Well, Derrr. And you may have had to leave out what you consider as important - and it may in fact be important. And that was indeed the case. Now, it could have been that I'd grabbed the wrong end of the stick, and thought something more important than it was - but well - I was right. There was a lot of detail, and as I brought it to bear, people were nodding more and more.
So, after getting stressed out about whether I got my statement in within time, the other side were lax about getting their statement to me.
The day of hearing arrives
And, finally there is the date of the hearing. I turn up and introduce myself to the NRMA solicitor - and also the solicitor for Allianz. We shake hands, he seems a decent bloke, all very civil. The aura of civility in the courts. The NRMA solicitor outlines a concern - will they try to claim that the car is owned by an individual, and not a company - and thereby try to evade the claim? But, I do have a letter from Allianz where they said they had taken over all matters relating to the claim. Aha! Fortunate. As it happened, it did not become an issue. All these details and concerns. They can overwhelm you.
But, we did agree with the Allianz lawyer that there would be no dispute over quantum - that is to say, the amount of money paid. If the assessor found in my favour, Allianz would pay all that I was asking. And vice versa. The NRMA solicitor said it would be a good idea, and I agreed. Keeping it civil. I wondered if I should have hired a car and charged it to the bill. Still, maybe if you don't over-reach it looks more credible. The things you wonder about.
And so, we waited and waited for other cases to get through the court. The perils of court process - whether you're a individual or a lawyer, you're still waiting around.
And so we were in the court. Allanz's lawyer sat on the left, the NRMA lawyer in the middle, and me on the right. Allianz's lawyer started first, the assessor noting it appropriate as they had initiated the case first. Hummm .... Yes, they did - after I'd phoned them to tell them I was planning to! Groan. But I kept my mouth shut. Sometimes I'm smart like that, much as it might surprise some of my friends.
Allianz's lawyer outlined their case, which was that people coming out into traffic can misunderstand the developing situation. But the claim was that they were stationary, turning right into Drysdale Crescent. While I had a series of diagrams, he claimed that the accident could have developed in numerous ways. Then it was the NRMA laywers turn. She outlined the basics of my case, emphasising that the roads would have been very slippery - they are in fact worse after the first sprinkle of rain, as compared to properly wet roads.
Then it was my turn. Now, much as I had focused on the other side claiming accident had taken place at a different time and place, it seems they had changed their position so that they agreed with the NRMA lawyers contention that it happened pretty much at the time and place I claimed - with a few fundamental changes, of course. I was not made aware of this change. Well, there you go. When you do a counter claim, you can forget that there was in fact another party in the game - me. I can't imagine it looked good. It was one compensation, anyway.
In my position, however, I pointed to several things. One was that I was not just asserting the damage happened in the way I said it did, I was trying to explain my thinking, as a professional in science communication, so it made sense rather than someone just having to take my word for it. If there was another way for the accident to happen, well, let's listen to that, but where is the detail? Where is the alternative hypothesis? In contrast to the 10+ pages of my submission, the other side only had barely two pages outlining what happened. No detail of the route they took, or the destination, or how the damage might have resulted as it did - as I had done. Where was the detail? Along the way, it seemed I was passionate, authentic and credible - and came over well - the NRMA solicitor credited me on my good statement and the impact it would have made.
I wasn't sure how things would go, but I was there, in court. In fact, while interpreting the situation, the assessor went with the email from BF ( well, he wasn't related to me, I'd not met him before, and he just happened to be there. Would be a bit strange for someone I knew to just be driving behind me. I wonder what the odds are?). It seems this level of court has some flexibility in taking different forms of evidence on board without them being formal statement. But, the other thing the assessor observed - was to wonder why the other car was turning right into a "Crescent" which did not lead anywhere, which is apparently what is meant by a "Crescent". Of course, the other driver could have claimed they were turning into Drysdale crescent in order to then do a u-turn and re-enter Rooty Hill Road North - but then that begs the question of why they did not park in Bottles Road, an earlier side-street. In any case, their eventual route - in terms of what they did before and after they parked - was not referenced in their statement, while I went into this in inordinate detail in mine.
But at the end of it - the assessor found in my favour - 100%. I was driving reasonably, and there was no "contributory negligence". I got all the money I was after! A win! Well, impressive. After everyone said how the courts were unpredictable. At sum, though, it wasn't just my word against theirs - I had brought a lot of other evidence to the table.
Lovely. A win. The holy grail of science communication. To take ideas - from reason and science - and apply them to prove something in court. After all that time.
Epilogue
In the documentation I received from the other party's lawyer, there was the signed statement after what they were claiming:
I certify under section 347 of the Legal Profession Act 2004 that there were reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has a reasonable chance of success.
I still wonder - was that ever the case? If Allianz had, in the first place, actually engaged with what I was saying, or the witness' statement? BF's observation was:
It sounds like poor case management.Or was there something else going on?
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