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QLD Who to Send Letter of Demand to Under Traffic Law?

Discussion in 'Traffic Law Forum' started by Gerard, 11 February 2016.

  1. Gerard

    Gerard Active Member

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    I have come to a stop in Car 1 on a motorway due to a traffic jam ahead. Car 2 behind me comes to stop and is stationary behind me. Car 3 is behind Car 2 but I am unsure if he was stationary or not. Car 4 behind Car 3 was definitely moving and unable to stop, thus crashing into the back of Car 3 - due to this Car 3 was pushed forward into Car 2 and hence Car 2 was pushed forward into Car 1.

    Since I am in Car 1 and have not been pushed forward into a car in front of me and since I have damage to my the rear end of my vehicle from Car 2 who should I be sending my Letter of Demand to under Traffic Law?
     
  2. Ponala

    Ponala Well-Known Member

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    Car 4 is the car at fault for the accident, start there.
     
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  3. Rod

    Rod Well-Known Member

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    Harder to prove car 4 is at fault. Easier to prove car 2 hit you and caused damage.

    I'd be starting with car 2. Car 2 then gets a chance to claim their damages, and damages to car 1 from car 3, etc
     
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  4. TKC

    TKC Well-Known Member

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    I'm not entirely sure it is really that difficult to prove Car 4 is at fault. Car 1 can prove Car 2 caused the damage/injury to his vehicle, however, Car 2 will disprove negligence on account of being stationary behind Car 1. In fact, it will be Car 1's evidence that Car 2 came to a stop and was stationary, so Car 1 will only prove the damage element of a negligence claim, the duty and breach elements will be disproved on Car 1's own evidence in witnessing Car 2 come to a stop behind him.

    I believe impact speed is at issue in what is referred to as a "conga line" vehicle accident, which makes Car 4 the likely negligent party.

    In answering the OP's thread question -- it is Car 4. Car 4 was reckless and, therefore, negligent to be driving so fast that the impact speed would affect a total of three vehicles in front. In rejecting Car 1's letter as to liability for the damage/injury, Car 4 must realise that it is enough for Car 1 to establish the threshold issue of negligence.

    Rod, Car 2 may get the chance to claim their damages, however in such self-represented matters time and inconvenience come into play and relying on other people to solve problems diligently and in a timely manner can often be at the detriment of people such as Car 1. And you know what Insurance Company 1234 would do in such a case if all drivers held their policies with them?

    In conclusion: I agree with Ponala, start with a Letter of Demand addressed to Car 4, but if it goes to court sue all three vehicles and see where the chips may fall. As Car 1, you are seeking a civil remedy for the damage/injury to your vehicle/self. The contribution is for the magistrate to determine.
     
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  5. Gerard

    Gerard Active Member

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    TKC many thanks for your excellent answer. I think you are correct.

    It is difficult for me to prove negligence as Car 2, Car 3, and Car 4 are not providing me with witness statements - I think their insurance company's are asking them to plead the 5th amendment. Car 4's insurance company is asking that I prove that Car 3 had not already collided into Car 2 before being hit by Car 4 - something I cannot do without everyone's statements - hence I feel all parties involved need to be present in court to be forced to give their witness statements - so that the Judge can decide. And if it is still not clear will the judge divdie my damages amongst all three parties (Car 2, Car 3, Car 4) behind me?


    How do I make a claim to QCAT against all three vehicles? Do I word it?

    Defendant1 (car 2), Defendant 2 (Car 3), Defendant 3 (Car 4)

    or

    Respondent 1 (Car 2), Respondent 2 (Car 3), Respondent 3 (Car 4)

    or

    Defendant1 (car 4), Defendant 2 (Car 3), defendant 3 (Car 2)

    or

    Respondent 1 (Car 4), Respondent 2 (Car 3), Respondent 3 (Car 2)

    Thanks again.
     
  6. Rod

    Rod Well-Known Member

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    ^ This is why you go after car 2. The issue is proving the events. Why go to the trouble of proving car 2 was not at fault, car 3 was not at fault, therefore it must be car 4. For instance, it may be possible car 3 is at fault and hit car 2 before car 4 hit car 3.

    BTW, I don't disagree that car 4 may be at fault, but leave that to car 3 to sort out. Not your concern.

    Your case, but I'd only be going after car 2 because it is straightforward.

    Can only imagine the sort of delays you'd encounter getting co-operation from 2 other drivers. And as you're already seeing, may not get any co-operation.
     
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  7. TKC

    TKC Well-Known Member

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    Rod, I'm not sure I am following your logic, so perhaps we might expand on our positions. Car 1 wouldn't be proving that car 2 is not at fault, only that car 2 could easily disprove negligence in so far as car 2 would be advancing their defence in relation to car 3 colliding with car 2 and pushing into car 1. How is car 2 negligent by being in a stationary position behind car 1, foot evidently on the brake?

    Pursuing car 2 will only prove the damage element of a negligence claim, the duty and breach elements (which are critical to proving car 1's case since the ultimate burden of proof lies with the plaintiff) will remain at issue, and will therefore never be satisfactorily established for car 1 to succeed in their case. Seems like a lot of work for absolutely no gain whatsoever.

    The question in the OP's thread title was, who to send the Letter of Demand to. Therefore, the OP's concern is very much that of identifying the negligent party. Do we even know that car 3 is in this case? What if car 3 doesn't bother with pursuing the matter and it's therefore not sorted out?

    Again, I was under the impression that this matter may not even require going to trial. However if it does progress than suing car 2, 3, and 4, is surely the preferred approach, since car 1 will establish the threshold issue of negligence, which as you said earlier is the issue in proving the events, remembering though that the negligence element is essential to satisfying his case.

    This is an important point, and it all depends on how much time the OP can devote to the case, and whether it might be a better way for him to proceed to just kick it over to a lawyer to handle.
     
  8. TKC

    TKC Well-Known Member

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    No worries, I believe my approach is the correct one.

    As you would be aware there is no 5th Amendment in Australia let alone QLD, although I take your meaning that what you think is that the respective insurance companies are providing legal advice to their policy holders. This does not happen, from my experience.

    First of all, you don't require the "witness statements" of car 2, 3, and 4, your statement is the only thing that is important. I wasn't aware you were going to trial as a self-represented person, however what would normally occur as part of this process, is that once you serve and file your Statement of Claim (against car 2, 3, and 4) you would receive a notice of grounds of defence which would be filed and served by the three defendants in their reply action which you initiated. In that action, you would essentially receive their witness statements since provided to you would be their pleadings/particulars.

    Since you are the only car which didn't cause damage to another party, it is perfectly acceptable that you are the lead plaintiff, however if the Letter of Demand fails you may wish to seek legal advice prior to pursuing any legal action as a self-represent.

    Go with using 'defendant', but I would urge you to look for legal advice first.
     
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  9. Gerard

    Gerard Active Member

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    Thanks again TKC.

    So should I make car 2 the first defendant or should I make car 4 the first defendant or it does not matter?

    I saw a community lawyer the other day who seemed to think if I was intending to take all three cars behind me to court that this could not be done in a small claims court i.e. QCAT.

    She thought I need to go to a different kind of court and initiate a different kind of court case? She said in this different kind of court, if I lose that I would be up for paying all the defendant's lawyer fees. Would you be able to shed some light on this.

    I have to say this lawyer did not seem to understand that I need to prove the negligence element.

    Unfortunately I wrote a witness statement (which I sent to all parties involved - without legal advice) stating that I saw the car behind me stationary and that I saw that Car 2 was forcible pushed into my car 1 by the car 3 behind him and as such I felt he was not negligent.

    She stated that I could argue that witness statement away, by saying I was in a state of shock when I wrote it and that it was done without legal advice and as such it was not my job to act as part of the defense for Car 2. It was Car 2's job in a different claim against Car 3 to recover money for money paid to Car 1 for damages done by Car 2 and to damages done to Car 2 by Car 3.

    And so on .... separate court cases all the way back to Car 4.

    The lawyer did seem uneasy about the issue of negligence and said she would ask a friend who works in car insurance to see if she could gain any other information on the matter.
     
  10. Gerard

    Gerard Active Member

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    Yes, as you know, the car insurance company's request that their members stay silent and never admit anything as they state that it is a condition of them (insurance company's) now representing them that they don't admit anything until it goes to trial.

    I was using the American constitution's 5th amendment concept loosely and out of context country wise to mean the "right to remain silent".
     

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