I was knocked off at slow speed back in February, and it was clearly the third parties fault (cutting across my straight path, to make a right-turn).
The witness totally blames the driver, the police have forced her to go on a driver’s awareness course, and her insurance company have agreed to compensate me for my losses ‘without prejudice’ (Whatever this means).
Now. Whilst putting together what was damaged, my solicitor (Paralegal), sent me this:
Hi Alex
I am just considering your claim for expenses. Am I correct in my understanding that the payment shown on your statements to George White Superbike Swindon of £XXX.00 and £XXX.98 is the total cost of the motorcycle suit? I note you state prices have risen but the Insurers will not pay you more than you paid for the items and may deduct a percentage for wear and tear. You have provided me with a statement for the gloves. What about the helmet and rucksack you say were damaged?
I am going to be out of the office tomorrow and Friday and will be looking at your file again on my return on Monday. Perhaps you can let me have your response and any supporting receipts upon my return.
Kind regards
The two figures I blanked out - were a deposit, and balance paid. The suit was barely a few weeks old when I was knocked off. I got a great deal, but to replace this suit would be about 40% more than what I paid. The same with my crash helmet. I paid £450 for an Arai RX7 when it was new - yet the new replacement model is the GP, which is £599. I can’t be expected to take an offer on this, and then make the difference up! That puts me worse off than before the accident.
Is there a standard-type legal response, which covers this type of area? I understand items of fashion, and ‘non-safety’ equipment have residual value, but when the third party is entirely to blame, surely these items should be replaced, to the same model or it’s nearest equivalent? Especially at no extra cost to myself?
Thanks for those who will reply seriously, and I’ll deal with those who inevitably will wind me up! lol
If you damaged a laptop, you would get old for new, as laptops are easy to replace second hand.
If you damaged a made to measure suit, it may not be possible to replace that suit with a second hand suit, so you would expect to get the price for the suit.
The argument is that you would be getting a brand new GP model helmet, which is superior to your current helmet, so you would effectively be getting a bonus, not a replacement. The argument would be that you should replace your helmet with a helmet of equal value, not necessarily the same helmet or the same brand.
You can’t get second hand helmets so you should expect full value for that.
The rucksack, I expect you can buy second hand, and this goes for the motorcycle suit as well.
It isn’t great to be honest, not a big fan of the old for new rule, but that is the rule in damages claims in tortious cases.
Is Paralegal a third party claim service? Reason I ask is that all my insurance documents have always stated that should gear be damaged, it will be replaced on a ‘like for like’ basis (or the nearest model available.
As far as I’m aware, the other party has a requirement to put you back in the condition that you were in before the damage took place - it doesn’t matter what you technically paid for it - it needs to cover whatever cost you would theoretically have to purchase new equipment
I’ve just had a case settled (I did it through McAms). The other party were totally at fault, admitted it, etc (though their insurance company dragged it out for over a year). I was asked to provide quotes from suppliers showing how much replacement items would cost - they paid out on this.
Even if an item is just a couple of weeks old it will have depreciated in value. The insurance company will only want to reimburse you for your loss at today’s market value which means that if you/they can find an item in similar second hand condition offered for sale they can use that as the current market value, excludes items offered for sale on internet auction sites. They may also calculate an items value by a straight line depreciation i.e. if a crash helmet is expected to last 5 years (taken from the manufacturers recommended replacement periods, maybe more or less) then depreciation equals 20% per year valuing a two year old helmet at 60% of it’s original purchase price.
On a recent claim I made a list of everything that was damaged - even minor cosmetic damage. My solicitor also recommended a few hundred quid for pain and suffering even though I was fully open that I suffered almost no pain - and that is what the medical report said. Nevertheless the solicitor asked for a few hundred quid and got it. They disallowed something in the damaged item list, but overall I got over 100% of the damaged item list because of the pain aspect…
Overall, I just want to be in the position I was before the accident. I cannot accept the fact that before the event I had an RX7 in great condition, and post event I’m expected to fork out a few hundred to purchase another! The shape fits my head well, and if I have to find a replacement, are they going to pay for my time to research other helmets (of similar/better quality/safety ratings)? Clearly I’m worse off in this instance, and it’s all down to their client?
Get your lawyer to come with you to check the size and fit of a new helmet, and do your online searching for equivalent second hand items, then get him to bill them for his time.
Whilst I have sympathy for the argument that you should be no better off than you were before the accident, just as you should be no worse off - you were not wearing brand new gear so should get what almost new secondhand gear would cost - you shouldn’t have to wast your time finding suitable items. That puts you worst off than before the accident when the whole point of your claim is that the other party is at fault and shoult pay your losses, including your inconvenience in finding replaceable items for your losses.
Depreciation of an item does not come into play on items that must be replaced with new items.
In the example I gave before, the depreciation is taken old for new. So if you had broken a laptop you would have to buy a second hand laptop, and the depreciation is taken into account right there.
However, since you cannot buy a second hand safety helmet you should receive full price, because you should be put back into the position you were in before, and that is having a safety helmet you can use, and the only way to replace the helmet is to buy new. Depreciation cannot be a factor in that.
Current prices. The damages basis for torts (including negligence) is as if the tort did not take place, whereas contract is as if the contract had taken place correctly. In this case, if the tort had not taken place, you would still have a motorcycle suit, just with a bit of wear and tear. I would vehemently argue that the fact that you can get a second hand suit for £x does not give £x as the market price for your suit, as you know the history on your suit, which itself has a value. This also makes the depreciation question difficult. I would be arguing that your damages are the cost of an identical replacement suit (the failure of GW has moved the market, so cost is not an appropriate measure) less straightline depreciation based on the entire length of time that the suit would be expected to last you, in terms of hours riding. If the suit should last 20,000 hours riding, and you had had the suit for a year, but only spent 20 hours on the bike, then I would strongly argue that on a £1000 suit, your depreciation had only been £1, despite the time an average suit lasted being 10 years. It really does depend on how you used it.
Bottom line is, your damages award should put you back into EXACTLY the same position as you were before you got taken out. And with safety gear, that shouldn’t be the market value of your gear, or even the historic cost of your gear. That should be current new replacement value less a fair adjustment for the use you have had of the gear (the life of which may not always be measured in years).
