You talking to me?

Distractions come in many forms, including Bluetooth devices.

QI am involved in a case which I was initially told was worth about £20,000.00. I have no problem with that. The compensation seems fair enough. However my solicitors are pressing me to take £16,000.00 on the basis that I must have been either speeding or not paying attention because I did not leave a skid mark. The suggestion is that I either did not have time to react due to my speed or I did not react because I was listening to music through my Bluetooth headset. My own solicitors are saying that this is reasonable and I should take the £4,000.00 hit. What do you say? Name Withheld

A This is nonsense. No inference at all can be drawn from the absence of a skid mark, but even more so if your bike has ABS. It is extraordinary for a motorcycle with ABS to leave skid marks. The circumstances when it can happen are so weird that I need not worry about them, but even if your bike was non ABS, the absence of skid marks proves only one thing – you did not brake hard enough to stop the wheel rotating and did not leave a skid mark.

A skid mark – which is evidence – can have certain conclusions drawn from it, but only one conclusion can be drawn from the absence of a skid mark from your bike, namely your bike had functioning ABS. Even though your solicitors do not want to fund it, a positive allegation has been raised by the Defendant insurer. A desktop report of a few lines from a qualified collision investigator would probably cost less than £200.00 simply to say “a bike fitted with ABS will not leave a skid mark” and this nonsensical line of defence can just be killed off.

The second line is “you were distracted by your Bluetooth headset” – this too is likely to be dismissed as nonsense. The law of England and Wales has a simple evidential burden. If you make a positive allegation, you must prove it. So if the defendant is saying you were distracted by your headset, then it must prove you had a headset, it was engaged and crucially it distracted you. They must show all of these things to be more likely to be true than untrue. However, cars come with radios and music playing systems and no one bats an eyelid. I suspect what you have got here is a poor quality claims monkey who gets paid the same whatever the outcome of your case and gets paid a flat fee, so where is his motivation to press on to trial? The insurance companies are fully aware of the claims companies that fold and your one is one which has the reputation of taking any offer. The value of your claim at £20,000 is at the lower end of what is reasonable. It represents a very ordinary day in court but it certainly isn’t a good offer. It is an adequate offer. You are unlikely to do less well as your injury is straightforward and varies in value between £4,500 and £5,500. Your kit is worth about £1200 even allowing the usual discount of 25% for it being second hand. Your out of pocket expenses and lost earnings come to a little over £14,000. Most judges would hear argument as to the value of your case at the £20,000 mark and there is nothing unusual, unproven or weird about your losses. You lost 13 weeks wages, you had to travel by taxi to a number of appointments and you had a course of recommended private physio. None of these are even slightly unusual. Your current lawyers have not factored in time your girlfriend helped you and took time off work to drive you to appointments. It is not a huge element of claim but it is worth a few hundred pounds. The valuation of £20,000 is realistic but not with a completely nonsensical reduction for “contributory negligence” of £4,000.