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8.10.14

HorseSolicitor wins appeal against the Motor Insurers' Bureau's (MIB) decision to reject rider’s claim

The circumstances giving rise to the claim were that our client was riding out with her daughter when a car, towing a trailer full of rubble, passed too quickly spooking the horses. Our client fell from her horse and sustained serious injuries. The driver fled the accident scene and remains untraced. The MIB exists to compensate victims of negligent untraced drivers (and uninsured drivers).

The claim was submitted to the MIB on 11 December 2013 and it was rejected on 9 August 2014 when the MIB concluded its investigations and withdrew rehabilitation. HorseSolicitor submitted its appeal on 20 August 2014.

We alleged that the MIB had not fully investigated our client’s application but in any event, on the evidence before it, the MIB was wrong not to determine eligibility in our client’s favour.

Generally

The MIB had rejected our client’s claim based on Clause 7(6) of the 2003 Untraced Drivers’ Agreement.

Clause 7(6) states that the MIB shall be under an obligation to make an award only if it is satisfied, on the balance of probabilities, that the death, bodily injury or damage to property was caused in such circumstances that the unidentified person would (had he been identified) have been held liable to pay damages to the applicant in respect of it.

In other words the Applicant has to show that it is more likely than not that an untraced road user’s negligence materially contributed to his accident and injuries sustained.

Grounds for Appeal

1. The MIB was wrong to find that there was no contemporaneous evidence of negligence on the part of the untraced driver.
2. The MIB was wrong to find that there was no proof that the vehicle was being driven too quickly or that no sound would have been caused at a lower speed.
3. The MIB was wrong to conclude that because the other rider was not thrown from her horse the untraced driver was not negligent.
4. The MIB was wrong to have not taken a statement from our client’s daughter who was a witness.
5. The MIB was wrong to ignore the version of events reported to the police officer by our client on the day after the accident.

We brought the following observations to the arbitrator’s attention:

- Various elements of the police report which contained contemporaneous supportive evidence.

- Our client’s daughter’s account of the accident was not only supportive of our client’s version of events, it strengthened it because she confirmed that she had signalled for the driver to slow down.

- It is reasonably foreseeable that travelling at 30mph in an area that has an advisory limit of 20mph (50% above the limit) whilst pulling a noisy trailer full of rubble past horses would result in them spooking and injury to the rider. The prudent driver would have slowed right down, particularly in light of the fact that he was asked to do so.

- An inference can be drawn as to the untraced driver’s driving standards from the fact that the driver left the scene. However it was accepted that just because he fled the scene did not prove his negligence in the accident.

- Our client and her daughter had provided contemporaneous evidence of negligence.

- It spoke for itself that the faster a car pulling a trailer of rubbish travelled the more noise it would make thus it should have stopped and allowed the horse to pass or slowed down to not merely the speed limit but ideally to approximately 5mph whilst passing a horse.

Our submissions were as follows:

The crucial test was whether or not on the balance of probabilities the negligent actions of the untraced driver caused the accident and our client’s injuries. The following assisted in this regard.

(i) The untraced driver drove contrary to how The Highway Code advises drivers to pass a horse and rider. It states that one should always pass wide and slowly and to look out for horse riders and take great care and treat all horses as a potential hazard and that the driver should be ready to stop.

(ii) On the evidence available the untraced driver was exceeding the speed limit applicable to the stretch of road.

(iii) It was our client’s submission that there was overwhelming evidence that, on the balance of probabilities, the untraced driver’s negligence was the cause of the accident and that her claim should be accepted in full.

(iv) The Applicant submitted that her Appeal is in no way unreasonable and as such even were the Appeal not to be found in her favour, there should be no costs order against her.

(v) Costs

Our client submitted that, if she succeeds on liability (even if only in part), she should recover her costs of the arbitral proceedings, since the MIB rejected her case on liability entirely, thereby necessitating the reference to arbitration, in which she has been successful in overturning the MIB’s decision - and that such costs should be assessed by the Arbitrator summarily.

Arbitrator’s Decision

I. The appeal was allowed with an order for costs in the Claimant’s favour.

The Arbitrator went on to say “How the MIB can say that there is no contemporaneous evidence of negligence on the part of the untraced driver is difficult to understand. If the trailer would have made a significant noise even at low speed, then the driver ought to have stopped and allowed the horses to pass. The fact that only Mrs X fell from her horse seems to me to be irrelevant.”

We are now in a position to progress our client’s case and assist in her rehabilitation. She is due to undergo further surgery. She may never be able to return to work on a full time basis or pursue the career for which she was undergoing training. We will value her claim when she has a clear prognosis.

If you have been involved in a road traffic accident call HorseSolicitor now on 01446 794196.


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