The client came to see us after his former lawyers, a well-known injury firm, told him they no longer felt that his claim would succeed. He had been involved in a collision at a set of traffic lights in a northern Perth suburb.
The accident happened as he was approaching a right-hand traffic filter signal, traveling north off a long downward-sloping slip road. The Defendant was driving west along a straight road, effectively coming from his right side. Due to the nature of the road layout, the drivers could not see each other until the last moment. By that time, the collision had become unavoidable.
The issue was who had gone through a red light. Our client maintained all along that his signal had always been green. This position was consistent with every document he had completed since the accident, including his online crash report and various email exchanges with the other driver’s insurers. He had a witness too, who not seen the collision but heard comments from the other driver at the scene. This was technically hearsay evidence and, while helpful, was not decisive.
However, the Defendant had completed various documents regarding the claim. When looked at closely, her position had subtly changed over the weeks and months following the accident. While she never went as far as to admit that she had gone through a red light, her choice of words revealed that she seemed less than confident about what exactly had happened on more than one occasion. Comments like “I believe my light was on green…” or words to that effect were made. After being interviewed by the Insurance Commission’s investigator, her position suddenly hardened into being “certain” that she had gone through on a green signal.
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His former lawyers appear not to have placed much weight on this subtle shift in her wording. They also took the view that the independent witness was not suitably independent because he had a vague personal connection with the client’s father. This caused his lawyers to conclude that his case was not sufficiently strong. By this stage, the matter was listed for trial. With a court date looming, the client was left potentially without anyone to represent him.
“After some investigations, we were able to find another witness.
A neighbour of the Defendant had also had a conversation with her a few days after the accident.
She, too, heard the Defendant claim that she thought she may have gone through a red light. “
- David Kew, Motorlegal
We reviewed his claim, and it struck us that the witness evidence was probably more compelling than his previous lawyers had thought.
Finally, we were able to trace a witness from the Defendant’s own insurance company. This witness had spoken to the Defendant very soon after the accident. The note of the conversation confirmed what we suspected. She was then subpoenaed to attend court to give evidence. Within a matter of days, the Defendant’s lawyers contacted us to negotiate a settlement and, with the trial listed for later that week, we reached an agreement that the Insurance Commission would pay the majority of the claim.
The case illustrates the need to thoroughly investigate all possible witness evidence and actively search out possible lines of inquiry.
The claim in this instance was significant, and there was a real risk that the client would be left to run the case himself. He would have faced enormous difficulties against a well-resourced insurer and their lawyers in a formal courtroom environment.
The other factors not to be overlooked are the client’s credibility and the undisputed facts. In this case, the client never wavered from his version of events, and as a matter of common sense, his account made more sense than the Defendant’s. For example, if he were approaching an intersection intending to turn right, logic would suggest that he must have observed the signal before starting his manoeuvre. Otherwise, it would have been utterly reckless, whereas someone travelling straight ahead, as the Defendant was, could be forgiven for missing the signal if momentarily distracted.
While we will never get a formal decision on what actually happened, the underlying plausibility of each account should be scrutinised and tested. If common sense favours one version over the other, every effort should be made to identify all sources of evidence that may support it.
Have you had issues with a firm representing you, or do you feel you haven’t received justice? Contact us today for a free teleconsultation regarding your case.
You need to complete an online crash report form, which will contain most of the relevant information about the circumstances, the people involved and whether anyone was injured. This allows The Insurance Commission of Western Australia (ICWA) to establish the basic facts regarding a potential claim. You then need to see your GP or other medical specialist, to advise you on the best treatment for your injuries. With soft tissue injuries, this is normally physiotherapy or chiropractic treatment, and you may need to have x-rays to identify or exclude any bony injury or an MRI scan to establish whether there is any underlying bone, tendon, ligament, or muscle damage. Sometimes a disc may bulge because of an accident and an MRI scan can help to identify whether this is responsible for any symptoms. It may be necessary to issue proceedings if there is a real dispute as to who was at fault or about the nature of the injuries. However, most claims are resolved without going to court.