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Title: He accelerated as I went to overtake

Date: 09 April 2015

Question

I recently received a “letter before action” from a firm of solicitors claiming that I was responsible for their client’s injuries and seeking compensation from me. They claim their car driver had neck and back soft tissue injuries.

What happened was this. I was following a Porsche 911 Turbo on my ZX12R and as I went to overtake when it was a clear straight ahead, the driver floored it. I think he was unhappy with me for going to overtake. This meant that the gap between me and the oncoming car was not as much as I thought, rather the time I had to overtake. I had to really go for it to make it and managed to get back onto my side of the road but the oncoming car swerved to avoid me, hit the verge and crashed.

I stopped but the Porsche driver drove off. I accept I was overtaking and that the car swerved to avoid me but only because the Porsche driver did what he did. Is this a defence to the claim?

John, Staffs

Answer

You need to notify your insurer that you have received the letter before action, also known as a letter of claim.

The actions of the Porsche driver seem to have contributed to this and could easily be regarded as dangerous driving if he deliberately accelerated to prevent your overtake. Witnesses may be able to identity him. If so the claimant’s solicitors could be redirected to his insurer. However they are still likely to go for you, leaving you free to bring in the Porsche driver as another Defendant.

The MIB will not likely compensate the injured driver if you were just 1% to blame for the accident and will leave your insurer to do so, it being a fund of last resort. I fear that the argument will be that the gap was insufficient to safely overtake so you are likely to be 100% to blame.

One possibility should you not find the Porsche driver is to persuade the claimant’s solicitors that the oncoming car driver didn’t react reasonably and brake (if there was time) rather than swerve although the best this will do is a split in liability, with you accepting the majority of the blame.

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