All posts tagged: motor accident insurance act

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Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

National Injury Insurance Scheme – National Injury Insurance Scheme Act – National Injury Insurance Scheme Queensland – National Injury Insurance Scheme Levy – NIIS NDIS – NIIS Qld – CTP Insurance Law – CTP Insurance Lawyer – Motor Accident Insurance Act – Motor Accident Insurance Commission Qld – Motor Accident Insurance Regulation

Background

As of 1 July 2016, Queensland has a no-fault scheme for treatment, care and support for eligible persons who suffer serious personal injury caused by, through or in connection with the:

  • driving;
  • collision, or action to avoid a collision;
  • running out of control; or
  • defect causing loss of control,

of a prescribed vehicle, within Queensland.

The National Injury Insurance (Qld) Act 2016 (Qld) (NIISQA) was introduced to meet Queensland’s obligation to address the agreed federal benchmarks for the provision of treatment, care and support to persons involved in road accidents who suffer serious personal injury. The NIISQA does not affect the common law rights of Claimants for at-fault compulsory third party claims. However, the meaning of the term ‘insurer’ under the NIISQA will see the legislation operate differently in claims against interstate compulsory third party (CTP) insurers (Interstate Insurers), compared with claims against Queensland licensed insurers.

The NIISQA will be administered by the National Injury Insurance Agency, Queensland (Agency).

Meaning of ‘insurer’

The dictionary in the NIISQA defines certain words used in the Act.

The word ‘insurer’ is a word that is defined. Under the NIISQA:

insurer means an insurer under the statutory insurance scheme under the [Motor Accident Insurance Act 1994 (Qld)].’

The Motor Accident Insurance Act 1994 (Qld) (MAIA) defines the statutory insurance scheme as, ‘the insurance scheme established by [the] Act’: section 4.

Several sections in the MAIA refer to the ‘statutory insurance scheme’.  Those sections concern such matters as:

  • the obligations of licensed insurers;
  • the statutory insurance scheme levy;
  • the industry deed;
  • the functions of the Motor Accident Insurance Commission; and
  • premium rates,

and other matters that are of no consequence to Interstate Insurers.

Interstate Insurers are not, ‘insurers under the statutory scheme under the [MAIA]’.  The Transport Accident Commission (Vic) is the insurer under the statutory scheme under the Transport Accident Act 1986 (Vic).  The Territory Insurance Office (NT) administers the Motor Accidents Compensation (MAC) Scheme under the Motor Accidents (Compensation) Act 1979 (NT).  The Motor Accident Insurance Board (Tas) administers the funding and payment under Tasmania’s scheme.

While claims for damages against these Interstate Insurers are regulated by the pre-court procedures of the MAIA, those Interstate Insurers are ‘insurers’ under their own schemes; with their own statutory policies of insurance.

When an Interstate Insurer is an ‘insurer’ under the NIISQA

Under section 32AA of the Acts Interpretation Act 1954 (Qld) (AIA) a definition in an Act applies to an entire Act.  However, under section 32A of the AIA, a definition in an Act applies except so far as the context or subject matter otherwise indicates or requires.

So, if the context or subject matter of a particular section or part of the Act requires; the term ‘insurer’ could be interpreted to mean Interstate Insurers.

Section 102 is an example of a provision which requires that the word ‘insurer’ be a reference to Interstate Insurers. Under section 102, the Agency may recover, as a debt, the present day value of a participant’s future treatment, care and support from the ‘insurer’ under an interstate CTP policy of a vehicle at-fault.

A comparison between sections 42 and sections 102 of the Act, shows that the word ‘insurer’ has taken on two meanings within the Act. Section 42 provides that the Agency may be liable to contribute to the liability of an ‘insurer’. It could not have been Parliament’s intention for the Agency to be obliged, on the one hand, to contribute to the liability of an Interstate Insurer and, on the other, entitled to seek recovery from them.

Claims involving Interstate Insurers

Apart from under section 102, the word ‘insurer’ under the NIISQA does not appear to extend to Interstate Insurers. This does not detract from the obligation of the Agency to pay for the treatment, care and support of participants under the NIISQA.

With the word ‘insurer’ under the NIISQA limited to licensed insurers, the Agency has no obligation to contribute towards the liability of Interstate Insurers, against which common law claims are made. Accordingly, Claimants may pursue those Interstate Insurers for the total of their damages (apart from amounts already paid by the Agency) in the usual way. However, the Agency is authorised to pursue Interstate Insurers for recovery of the present day value of any future treatment, care and support required by the Claimant.

Interstate Insurers will need to consider their liability for common law damages in Queensland claims and statutory entitlements (including those under their own schemes) in the context of the NIISQA, the MAIA and any local legislation or policy applying to the vehicles registered interstate which they insure. Lawyers for Claimants will need to provide different advice to their clients as to the process under the Act, depending on the identity of the Insurer.

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Kate DenningInterstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)
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Responding to a request for a Compulsory Conference

Responding to a request for a Compulsory Conference

by Kate Denning Google+

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

In claims regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and the Motor Accident Insurance Act 1994 (Qld) (MAIA) any party may ‘call’ a Compulsory Conference (conference).

So, you’ve been involved in a matter for some time now and another party calls a conference. What do you do?

Here’s our list of suggested ‘do’s’ and ‘don’ts’:

The Don’ts

Ignore the request

If a request for a conference is made, a response should be given within a reasonable timeframe. What’s ‘reasonable’ will vary for each matter, the number of parties involved and the time of year. For instance, if it’s October and parties are trying to arrange a mediated conference in a multi-party dispute for December, it would be helpful for all the parties to provide their availability within a day or two, to lock down a date.

Whenever a request for a conference is made, we should consider it possible that all communications exchanged between the parties thereafter could end up annexed to an affidavit in a Court application. If there’s a gaping whole in a chronology showing no response to a request from one party – that party should expect embarrassment at the hearing of the application.

Immediately agree to the request

Unless you have instructions from your client, intimate knowledge of the matter and you are confident that all outstanding steps, information and documents will be taken or gathered before a conference – do not just jump in and commit to a conference. Don’t agree to a conference just because there’s pressure from another party to provide an immediate response. This can be a trap that early career lawyers fall into and this kind of reactive advocacy could impact upon the outcome of the matter and the relationship with a client.

Cause unreasonable delay

If there are outstanding steps or investigations that should have been completed and they haven’t – don’t refuse to agree to a conference because that work hasn’t been done. A common object of each of the pre-court regimes is the early resolution of personal injury claims. Of course, we are all human (especially lawyers) and at times, some matters demand our attention over others.

A better approach could be to explain to the other party that you will need certain information or material in order to actively participate in a conference, sign a Certificate of Readiness or make a meaningful Mandatory Final Offer (MFO). Otherwise, consider suggesting a tentative date for a conference, proposing the matter proceed by way of informal conference or that a date for conference be scheduled within a defined timeframe.

The Do’s

Review the matter

The exchange of MFOs, Certificates of Readiness and the cost consequences that flow from MFOs, make holding a conference a step with serious consequences for clients and lawyers.

A Certificate of Readiness under the PIPA and WCRA, certifies that the lawyer (or the party) considers the party to be, in all respects, ready for the conference. In claims regulated by the MAIA – the legislation is more onerous – with the lawyer required to certify that ‘the party is in all respects ready for trial.

Some of the things to consider when reviewing a matter are whether:

  • all outstanding steps have been undertaken under the legislation.
  • all factual investigations and instructions from the client have been obtained.
  • adequate responses have been received from the Claimant, other parties or non-parties to all requests for information and documentation.
  • all necessary expert evidence has been provided.
  • the parties have undertaken disclosure.
  • all parties with a liability in contract, tort or under a policy of insurance have been joined to the claim.

Consider mediation

For multi-party disputes, it may be appropriate for a conference to proceed by way of mediation. A conference can proceed by way of mediation, ‘if .. the parties agree’. Parties are sometimes reluctant to suggest mediation. Perhaps this is because they’re concerned the other party/ies may think they really want the matter resolved or perhaps they’re concerned it could be seen as a concession of liability or risk exposure.

There can also be disputes about the contributions towards a mediator’s fee. Often a party who considers itself with no exposure will resist agreeing to meet their share of the cost of a mediator. This position might be justified, for instance, where one party is owed a contractual indemnity by another. However, these disputes can end up costing clients more in solicitor’s fees than the actual share of the mediator’s fee, so it’s best to stick to the real issues in dispute. Instead, make your attitude towards the claim known through Contribution Notices, liability responses or requests for particulars.

Of course, it’s not always appropriate to mediate. If the parties know that a matter is unlikely to settle at conference, it may be a cost that they’d prefer to avoid and reserve mediation for the litigated stage. Conversely, if the parties think a matter can be resolved because the parties are on the same page, then mediation may not be necessary.

Informal conferences

Informal conferencing can be useful where a party is not ready to participate in a conference under the legislation. The parties can agree to participate in an informal conference and agree to dispose with the requirement for a conference under the legislation to be held if the matter does not settle.

With this approach, parties don’t have the pressure of MFOs and Certificates of Readiness weighing upon the negotiations. Also, if the matter fails to resolve, they needn’t incur the legal costs of a conference at a later date.

Set a tentative date

In a multi-party dispute it’s a good idea for the parties to tentatively schedule a conference early in the matter to give the everyone a date to work towards. This is practical in multi-party disputes where claims may be regulated by two or more pieces of legislation. Also, with a date scheduled months in advance, it makes it difficult for one party to wriggle out with excuses. Medical examinations, factual investigations, requests to parties and requests to non-parties can all be worked into an agreed timetable.

Comments

The object of a conference is for a claim to be settled at an early stage, without the need for litigation. There’s no point in agreeing to a conference if the parties won’t be ready but one party should not cause unreasonable delay for the others.

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Kate DenningResponding to a request for a Compulsory Conference
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Making a Mandatory Final Offer in Queensland

Making a Mandatory Final Offer in Queensland

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

by Kate Denning Google+

Introduction

In Queensland, parties to a personal injury claim are required to make a ‘mandatory final offer‘ or ‘written final offer‘ (MFO). An MFO is made at the end of an unsuccessful pre-court Compulsory Conference in claims regulated by the:

Here are just some of the irregularities that can arise with MFOs in Queensland claims:

No Mandatory Final Offer

Cost consequences flow from an MFO. Any cost orders ultimately made will depend on: the amount of the offers compared with any judgment; the legislation regulating the claim; offers made during the litigation (except in WCRA claims); and, in limited circumstances, case building that occurs once the matter is litigated. To avoid the potential for adverse cost consequences, a party may agree to participate in settlement negotiations on an informal basis only, so that they are not required to exchange MFOs (or provide a Certificate of Readiness). In multi-party disputes, this strategy may be appropriate for a PIPA Respondent that has been joined to a claim late in the piece. Otherwise, a refusal by one party to have a level playing field with the others for no valid reason, is likely to impact settlement negotiations.

Offers inclusive of costs

Under the PIPA and MAIA, where an offer is at or below the ‘upper offer limit‘, parties are required to make offers which are exclusive of costs. Otherwise, parties are permitted to make MFOs which are inclusive of costs.  These types of MFOs should be made with caution.  Offers which are inclusive of costs have received unfavourable treatment by the courts. The difficulty with these types of offers, is that there’s no way for a court to identify from the MFO the amounts allowed for damages and costs.

Offers fixing an amount for costs

A Respondent may make an offer which fixes an amount for costs. The advantage of doing so is that, if accepted, the Claimant has agreed to an amount for costs and no further negotiations are necessary. However, where an offer fixes costs and that offer is rejected – a question might arise later on about whether the Claimant was justified in rejecting it because the allowance for costs was too low. As with offers which are inclusive of costs, these types of offers should be made with caution.

Offers between Contributor and Respondent

Under the PIPA, parties to a contribution claim are not required to exchange MFOs. However, under the WCRA, both Contributors and Respondents are required to make MFOs. The result of this is that for claims regulated by both the WCRA and PIPA, PIPA Contributors may choose to make no offer towards settlement during pre-court negotiations, as a matter of strategy. It may be in the interests of a PIPA Contributor to take a passive role in the claim and see if the other parties will reach a compromise without any offer from them towards a settlement. However, in a claim where a PIPA Contributor has significant exposure, this approach may simply compel the parties to litigate.

Joint MFOs

For claims regulated by the WCRA, costs only flow from the MFO. So, where a claim is regulated by the WCRA and PIPA, the Respondent and Contributor/s in the WCRA claim will be reluctant to make an MFO of $nil. The result is that at Compulsory Conferences there is more pressure on the WCRA parties, than the PIPA parties, to make an appealing MFO to a Claimant. Conversely, if a WCRA party has made reasonable attempts to resolve a matter during the pre-court stage, then they may be reluctant to co-operate with a PIPA party that is keen to negotiate well into the litigation.

Attaching a Release and Cost clauses

Care should be taken when drafting the MFO. If the MFO refers to a Release and a copy of that Release is not attached to the MFO, that may affect the validity of the offer. For claims under the PIPA and MAIA, where a Release is attached and there is otherwise no obligation upon a Claimant to sign a Release, a question may arise about whether the terms of the Release affected the acceptability of the Respondent’s offer. Consideration should also be given to the wording of any clause about costs in the MFO. Particularly if the MFO refers to costs being payable in anyway other than ‘in accordance with the’ relevant legislation regulating the claim.

Clash of the MFOs

MFOs are ‘exchanged’ and so parties do not usually know what offer/s will be made by their opponent/s. In rare circumstances, two parties may make MFOs to each other which are less favourable than the offers put to them.  For instance, Company X offers to settle a Claimant’s claim for $100,000 but the Claimant offers to settle her claim for just $80,000. Parties may attempt to address this by adding a clause to the MFO to the effect that the document serves as an acceptance of any offer that is less/more than the offer made by their opponent.

Expiring limitation period

A Claimant must commence proceedings within 60 days of a Compulsory Conference and cannot start those proceedings while the MFOs are open. MFOs must stay open for 14 days (10 business days for WCRA claims). There is no discretion under the legislation for that time to be abridged. So, for claims regulated by the PIPA and MAIA, a Compulsory Conference must be held no later than 10 business days prior to the expiration of a limitation period, to allow the MFOs to expire and the Claimant to commence proceedings.

Getting it right

There’s no set formula for getting your MFO ‘right’. However, each piece of legislation has its own nuances. It’s important to be familiar with the legislation that regulates both your claim AND your opponent’s. Adequate preparation before a Compulsory Conference will facilitate negotiations and prevent confusion between parties and their legal representatives when MFOs are exchanged.

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Kate DenningMaking a Mandatory Final Offer in Queensland
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Projectile case not regulated by motor accident legislation

Case note: Hornby v Opbroek & Anor [2015] QDC 101

MAIA – Motor Accident Insurance Act – CTP Lawyers Brisbane – Road Accident Brisbane – CTP Insurance Qld what does it cover? 

Background

Sarah Hornby (Plaintiff) brought an application for a declaration that her claim for personal injuries was regulated by the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The Plaintiff suffered injuries to her face and upper body when Reece Opbroek (First Defendant), threw a beer bottle at the vehicle in which she was a passenger (the Holden).  The glass struck the rear door of the Holden and smashed, then struck the Plaintiff.  When the First Defendant threw the bottle, he was driving a Mazda, with one hand on the steering wheel.

Issue

The issues for determination were whether the injuries, for the purposes of section 5 of the MAIA:

  1. resulted from the driving of the motor vehicle; and
  2. were ’caused by, through or in connection with a motor vehicle’.

Pleadings

In the Statement of Claim the Plaintiff alleged the First Defendant was negligent in the following respects:

  1. failing to exercise proper control over the Mazda to avoid injury to the Plaintiff;
  2. failing to avoid an accident;
  3. failed to drive the Mazda for lawful purposes;
  4. driving the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
  5. positioning the Mazda so he could throw the beer bottle at the Holden in contravention of s 26(1)(a) of the Summary Offences Act 2005 (Qld).

Submissions

The Second Defendant, AAI Limited, made submissions as follows:

  • there was nothing relating to the driving of the vehicle, that would trigger sub-sections 5(1)(a) and (b) of the MAIA.  There needed to be “some wrongful act with respect to the driving, not simply the release of the bottle”.
  • the allegations of negligence pleaded by the Plaintiff did not accord with the Statement of Agreed Facts.
  • there was no factual basis upon which the Court could make any finding, either directly or inferentially, that would identify some relevant fault on the driver.

The Plaintiff made submissions as follows:

  • the injury was ’caused partly by a wrongful act in respect of the control of’ the Mazda.
  • the driving was fundamental to the injury because the First Defendant maintained control of the vehicle in such a way as to allow him to throw the bottle by holding the steering wheel with one hand and throwing with the other hand.
  • the ‘manner’ of driving was a ‘wrongful act’ in that the ‘controlling’  of the vehicle was to ‘effect a tortious act’ which ‘led’ to injury.

There was no real contest that the bottle was thrown ‘by, through or in connection with’ the Mazda.

Findings

Dorney QC DCJ found that:

  1. the injuries were a ‘result’ of the driving of the motor vehicle.
  2. there was no link between the motor vehicle and any wrongful act on the part of the Second Defendant (which is simply pleaded as ‘negligence’) because no negligent act was set out in the agreed facts.

The Court dismissed the Plaintiff’s application.

Considerations

The case serves as a reminder for parties to consider whether the legislation that a claim is brought under, does in fact apply to that claim.

In this case, the agreed facts failed to establish a wrongful act and negligence relating to the driving of the vehicle, so the Plaintiff’s claim was excluded by the MAIA.

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Kate DenningProjectile case not regulated by motor accident legislation
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Insurer required to fund rehabilitation despite DNA evidence

Case note: Lee v RACQ Insurance Limited [2015] QSC 120

CTP Lawyers Brisbane – CTP Law Changes – Care for accident rehabilitation – Motor vehicle accident rehabilitation – MAIA – Motor Accident Insurance Act – Reasonable suspicion of fraud

Overview

Mr Lien Yang-Lee (Applicant) made application to the Supreme Court of Queensland for an injunction to prevent compulsory third party (CTP) insurer, RACQ Insurance Limited (Respondent), from ceasing to provide rehabilitation, under the Motor Accident Insurance Act 1994 (Qld) (MAIA).

The Applicant was badly injured in a head-on motor vehicle accident.  The Applicant brought a claim against his father, the alleged driver of the vehicle in which he was travelling.  The Respondent was the CTP insurer of that vehicle.

Because of the Applicant’s youth and severe disabilities, the Respondent agreed to fund rehabilitation in accordance with section 39(1)(a)(iv) of the MAIA.  The Respondent funded around $200,000 in rehabilitation.

The Respondent’s claim manager had concerns about the circumstances of the accident.  The police report noted an issue as to who was driving.  As police investigations advanced, it was revealed that blood all over the driver’s side airbag belonged to the Applicant – not his father.  A late-comer to the scene saw the Applicant’s father attending to the Applicant.  That bystander noticed that the Applicant had a lot of blood on his face.

The police concluded that the Applicant was driving the vehicle.

Issue

The issue to be determined was whether the Applicant should be granted an injunction to prevent the Respondent from refusing to fund rehabilitation.  The evidence before the Court was hearsay.

Findings

In a judgment delivered on 7 May 2015, Dalton J found as follows:

  1. The Applicant demonstrated a case at first instance.  The Applicant’s family had sworn affidavits that he was not driving the car.
  2. Further rehabilitation may assist the Applicant.  That weighed most heavily against the money that would be lost to the Respondent, if the Respondent ultimately established fraud.
  3. The Application was successful and the Respondent was enjoined from reducing any rehabilitation under the MAIA.

Considerations

Despite ‘quite strong circumstantial evidence of fraud’ and the fact that funding of rehabilitation under the MAIA is voluntary, the Respondent couldn’t reduce its funding of rehabilitation to the Applicant.  That rehabilitation was estimated at approximately $40,000 per month.  The Applicant had no assets and offered no security to the Respondent.

Insurers should have regard to this judgment before agreeing to fund rehabilitation ‘on a without prejudice basis’ under the MAIA.

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Kate DenningInsurer required to fund rehabilitation despite DNA evidence
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‘Following car’ 75% to blame for unsafe overtaking manouevre

Case note: Veyt v Stevenson & Anor [2015] QDC 84  

CTP Lawyers Brisbane – CTP Law Changes – Truck Accident Qld – MAIA – Motor Accident Insurance Act – Truck Accident Lawyer – Motorcycle Accident Lawyer

Facts

The Plaintiff, Mr Gilbert Veyt (Veyt), a 51 year old motorcycle rider, was attempting to overtake a truck, driven by the Defendant, Mr Lyle Stevenson (Stevenson).

Attempting to pass Stevenson’s truck, Veyt moved his motorcycle into an overtaking lane.  Ahead of the truck, was a bicycle.  All vehicles were travelling in a southerly direction on Stapylton-Jacobs Well Road, Queensland.

At the same time as Veyt was attempting to overtake Stevenson’s truck, Stevenson moved into the northbound lane, to provide a safe distance between his vehicle and the bicycle.

Veyt, unaware of why Stevenson’s truck had moved into the overtaking lane, attempted to abort his passing manoeuvre.  However, he lost control of his motorcycle and crashed onto the roadway.

Veyt alleged that Stevenson’s truck clipped his arm.  However, he gave inconsistent versions of the accident during his property damage claim.  An entry in the insurer’s records noted that Veyt said it was his motorcycle that actually clipped the back of the truck.

Issue for determination

Veyt alleged that Stevenson was negligent for (among other reasons):

  1. failing to observe the motorcycle was overtaking the truck.
  2. failing to indicate his intention to move into the overtaking lane.
  3. failing to exercise due care and skill in the management and control of the truck.

The insurer for Stevenson, CGU, defended the claim, alleging that Veyt had failed to keep a reasonable distance behind the truck, failed to keep his vehicle under control and failed to have regard for his own safety.

Findings

In a judgment handed down in the Southport District Court on 21 April 2015, the Court made these findings of fact:

  1. The truck driver used his indicators, was acting lawfully, was not speeding and checked his mirror before moving into the overtaking lane.  The court also found that he did not leave Veyt insufficient room to overtake and only entered the overtaking lane by a couple of metres.
  2. Veyt was, for the most part, travelling in the truck’s blind spot and failed to observe the truck’s indicators, probably because he was attempting to pass the truck at 90 km/hr.
  3. Stevenson’s truck did not come into contact with Veyt.
  4. Stevenson was only 20 to 30 metres away from Jensen before he activated his indicators.

The Court determined that the actions of both drivers contributed to the accident.  The Court said that Stevenson, as an experienced truck driver, should have known that there was a risk that a vehicle travelling behind, could be in his blind spot.  Because of this, he should have been more careful in checking his rear view mirrors before moving to the right.  Stevenson was also considered negligent for indicating his intention to move into the overtaking lane too late.

Given the findings of fact, the Court found that Veyt was negligent and considered an appropriate distribution of blame would be 25% to Stevenson (Defendant) and 75% to Veyt (Plaintiff).

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Kate Denning‘Following car’ 75% to blame for unsafe overtaking manouevre
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.