PIPD 2 - Legal Process 1 PDF

: Welcome back. This is part 2 of my video presentation for personal injury and property damage. In this part, I will be talking about two broad areas. First, I will share to you what a person should do at the accident scene. second, I will be talking about what to do at the lawyer\'s office. Befor...

: Welcome back. This is part 2 of my video presentation for personal injury and property damage. In this part, I will be talking about two broad areas. First, I will share to you what a person should do at the accident scene. second, I will be talking about what to do at the lawyer\'s office. Before I proceed further, I want to give a thank you to Mr Kok Yee Keong who wrote an excellent article, much of which this video presentation is based on. Now let\'s go straight into the areas that we will be covering in this part of my video. For this topic, I\'ll be talking to you about the immediate steps to take upon a collision. I will talk a little bit about GIA. What is GIA? I will talk a little bit about Motoclaims Framework, what it is, and what it requires, what it entails, and I\'ll share a little bit on the reporting procedures. So let us head to the first slide. area, what are the immediate steps that a person should take upon a collision? Immediate steps to take at the accident scene. Obviously, the first thing to do is to stop the vehicle immediately and do not move it, unless of course it is necessary to do so or if a police officer has arrived at the scene and give instructions to move on. Call the police if they are needed and of course if they are not there. Call an ambulance if there are injured parties and render assistance immediately. Exchange particulars after names, NLC numbers, contact number, address, insurance details. Now you cannot force one person to give his particulars. So if\... If there is refusal to give such particulars, there is no need to engage in any argument, just take down the vehicle license plate. This will be sufficient to allow the law firm to subsequently obtain the necessary details. Take proper photographs of the accident scene. They are important to support or defend the claim later on. These photographs should include photographs of the damage patterns of all vehicles involved, the positions of these vehicles, photographs of the surrounding areas and conditions such as the traffic light poles, lanes, dividers, overhead bridge, zebra crossings, photographs of the damaged vehicle should be taken at close up for better resolution and at a suitable height or elevation so that the damage can be clearly seen without any parallax error, and if there\'s an in-vehicle video recording, retain a copy of that recording. Such video recordings are usually good evidence should there be a dispute as to how the accident Okay. Do not admit fault or liability. This is important because usually in most insurance contracts in Singapore on cars and vehicles, there is a prohibition against admitting fault or liability. Call the tow truck if needed. The necessary numbers can be obtained from the insurance agent or from the insurance company themselves. Ask for advice from the insurance hotline if necessary. Now, these are some of the immediate steps that a person can take. And I hope that this would be useful advice that you can give to your clients. By now, you would have guessed what GIA stands for. It stands for the General Insurance Association. Now, it is an association that was established as far back as 1966. That is some time back. Now they work constantly to make all aspects of general insurance easier and more effective for consumers, for agents and for insurance based in Singapore. The trade organisations are actively involved in business community representing the interests of their members\' company, and they assist in identifying emerging trends and response to issues that affect the general insurance industry, and they seek to promote the overall growth and development of the insurance sector. They are empowered to embark on activities promote and advance the common interests of their members and general insurance industry. And this is done through fostering public confidence for the insurance industry, representing their members\' interests to government, trade organisations, similar associations and bodies in the other industries. They also seek to establish a sound insurance structure and promotion of greater efficiency within the industry. They also seek to promote education and training in all aspects of insurance, and they seek to be good corporate citizens. One of the things that GIA has a direct impact on PIPD work is this thing called the MotoClean Framework, otherwise known as MCF. This was set up to provide a clear and common practice. for reporting of motor accident. The MCF is fully supported by all insurers in Singapore and it seek to provide the motor risk with an enhanced claims experience and at the same time help to contain claim costs for insurers. The MCF among other things introduces what we call a three-step reporting process. so that it will be easier for the drivers to remember what to do in an accident. The three steps are exchange particulars and take note of the vehicle\'s numbers, call the insurance hotline for auto-truck, and report and take the vehicle, whether it\'s damaged or not, to the approved reporting centre or authorised book shop within 24 hours. Now you will note that the three steps are also some of the steps that I have mentioned in the earlier slides. Another aspect of GIA that you need to know is the creation what we call BOLA, the Barometers of Liability. Now this is very similar to the MAG or the Moto Accident Guide that I have shared with you in the first slide. The only difference is that the BOLA is not authored by judges, and it is a reference point for insurance only. Should one insurance company has a claim against another. So strictly speaking, the BOLA is not a legal authority or a textbook that you can use in court. I however share this. you as a potential PIPD practitioner because you may need to have some knowledge of this should you have to advise your client who\'s an insurance company. The BOLA will also influence and affect the insurance discretion in handling a claim. And you might have to know something about the operation of the BOLA in order to advise your client if their policy is affected by the insurer\'s discretion. So what I\'m sharing here is a very short summary of this organization called GIA and how MCF and BOLA might influence and affect PIPD especially in terms of your advice to your client. One of the important features of the MCF is this requirement that a person who is involved in a road traffic accident should bring his vehicle to the reporting centre or the authorised workshop within 24 hours. Of course, if the accident occurred on a weekend, then the person can bring the vehicle by the next working day. Now, at the reporting centre, The motorist will be required to give an account of the accident, otherwise known as the Singapore Accident Report, and you should as far as possible ask the motorist to request for a copy of that report. Now this requirement is necessary regardless whether the motorist wishes to make a claim on his motor insurance or not. A failure to report the accident will be a sufficient ground for the insurance company to disclaim their contractual obligation to provide coverage. Late reporting, in other words, if you report the accident beyond the 24-hour deadline, can result in a decrease in the no-claim discount. or no claim bonus of the policyholder. So a good advice to the client is report first and then decide later what to do. Now when making the accident report, you should tell the client to be as detailed as possible about the accident. Details such as the date, the time, the location, the road condition, the weather conditions, the visibilities, travelling speed, weather hazard lights or signal indicator will switch on, the number of impacts, colour of traffic lights governing the parties, relatively speed and position of the vehicles, the number of lanes and any visual indication of injuries suffered by the motorists or passengers involved, whether there\'s any off-amid by the other side, any sign of intoxication. Now all these are relevant factors or facts or evidence that has impact on how liability can or cannot be determined. Of course, you should also encourage the clients to disclose or put together in the accident report any photographs taken at the scene. Now, a detailed and accurate accident report is also important because it is the person\'s first account of the accident. And oftentimes, this would give the lawyers basis to argue that such account should hold a high probability value compared to any subsequent accounts that was given. For example, accounts given in the affidavit of an Adventist in chief and so forth. Now, sometimes you are also required to make a police report. Now the general guideline now is that a person who is involved in an accident need not make a police report if there are no injuries involved. And if there are injuries involved, the guidelines or the standing instructions that they have is that you don\'t need to make a report if you are given medical leave for less than three days. However, it\'s always possible for motorists to report or the Megapolice Bureau, regardless of any injuries for record purposes. So this is something that is up to the individuals. This is in general the reporting procedure. And I\'ll move on to the next slide. So we\'ll talk about what the client should do at the scene of the accident. The next step is what you should do when the client comes to you in your office. Now your advice to the client really depends on whether the client is coming to you to seek advice as a claimant or as a defendant. Now if he\'s coming to you as a potential claimant, then basically\... you can advise the clients on three options. The client can make his claim either through a workshop or through a lawyer, or the client can make his claim himself, DIY. Now, when using the workshop, this usually happens when the client has already appointed a repairer. And sometimes the repairers not only repair the vehicle, they provide added services by helping the claimant to make a claim against the other potential parties or even help the claimant to make a claim under his own policy. we need to understand that there is this concept called making an OD claim. An OD claim is when the client decides to ask his own motor insurers to pay for the repairs to his vehicle. The advantage of an OD claim is that it is a fast-free procedure where the Moto Insurers will basically handle the repairs and pay the repairs most of the time directly. And so the client really doesn\'t have to do much, just let his or Moto Insurers handle the repairs and the payment and so forth. While it is fast free, the disadvantage is that if you decide to make a no claim, OD claim, then your no claim bonus will be affected. No Claim Bonus is a benefit under the Moto Insurance where the policyholders enjoys a discount or a reduced or very good premium rate. If a claim has been made on that Moto Insurance policy, then the No Claim Bonus will be taken away. So sometimes, the client\... does not want his no-claim bonus to be affected and that would be a reason why he would not want to opt for to make a claim on his own insurance policy. If he doesn\'t want to make an only claim, then he has to do what we call make a third-party claim. This is when the client decides to ask the motor insurance of the other driver to pay for the repairs or for whatever damages that he wants to claim. either repairs or even personal injuries. Now in this situation, the client can make a third party claim either through the workshops if they do provide such services or through a lawyer. The lawyer could be someone recommended by the workshop or even suggested by his own insurance company or someone that the client finds. The other option is\... the client can actually make a third party claim by himself under the DIY option. I will talk a little bit more on the protocol and the procedure to make such a claim. That will be in the subsequent slide. The third option that the client can consider is to reach a private settlement. Now a private settlement is reached without having to go through the procedure under the pre-action protocol. Basically, the client would talk to the potential, the other parties, the other drivers and wish an agreement. Sometimes such private agreement is actually settled upon at the scene of the accident. Sometimes the client might use a lawyer to draft a suitable private settlement agreement. Now, if the client were to come to you, in their capacity as a potential defendant, his options is a little bit more straightforward compared to that of a claimant. Basically, the defendant has two options. The first option is like the claimant, he can reach what we call a private settlement. Now, the claimant has to be careful that if he decides to enter a private settlement, he has to make sure that nothing in that private settlement may amount to an admission of fraud, which is usually prohibited by his moto insurance contract. Now this is something that he must consider because there\'s no telling whether there will be other claimants. that could be made against him arising from the accident itself. Most of the time, a potential defendant would want to enter a private settlement because he also wants to preserve his no claim bonus in his own motor insurance contract. The other alternative, which is a very straightforward alternative, is for the potential defendant to basically\... let his own insurance handle. Now this is very attractive because the client just don\'t have to do much actually and just let the insurance company handle. If need be, the insurance company will appoint lawyers to act in the matter and to raise the necessary defense. There\'s a potential third option, which I didn\'t really talk about much under this slide, but still be considered option, is that the client can decide to defend the case himself. Of course, if he does so, he don\'t really uses a lawyer, or sometimes he might want to appoint a lawyer to represent, but the only difference is that under this option, the client will have to pay. for the lawyers fees. So these are the options that you have to advise your client depending on the capacity that he wants the advice for, whether as a potential claimant or as a potential defendant. There may be occasions when the motor insurance of a particular vehicle decides not to cover the insured or the driver of the vehicle in question. In PIPD work, we often call this process repudiation, though strictly speaking, I believe that the proper term is to disclaim their insurer\'s contractual liability to indemnify either the policy holder or the insured. Now there are many reasons that the insurers can refuse to provide insurance cover for a particular accident, and I just want to go through some of the more common reasons so that you can advise the clients and then you tell them what they can do should such situation arises. The first, which is quite self-explanatory, is where the driver was driving the vehicle under the influence of alcohol or drugs. I don\'t think I need to say more and this is quite straightforward. Another situation is when the driver was driving an unregistered vehicle or driving a vehicle with prohibited or unapproved modifications. From my experience in this area of work, I rarely come across a situation where A driver is driving an unregistered vehicle because almost all vehicles in Singapore has to be registered. Perhaps the only exception is when a vehicle is perhaps imported and you know, it\'s been transported from maybe the ship to a warehouse or something like that. But even then they would have some form of license plate, a temporary license plate. Unapproved modification is more common when some car enthuse me do some Prohibited modification and that could be a reason Another common reason for an insurer to refuse insurance cover is when the driver is driving with an invalid license. A very common situation is when the driver\'s driver is driving with an invalid license. suspended and he notwithstanding the suspension decide to drive or when the driver is actually disqualified due to a traffic offense but he chose to drive. Another common example would be a person usually a young person who does not have a driving license at all and he or she managed to car key and then went on a joyride and got himself involved in an accident. These are very clear cases where they don\'t have licence. One potential grey area is the driver actually has a valid driving licence from another country. There is an issue whether with such a licence he can drive to Singapore or not. There\'s also a situation, or there could be a situation, when the driver was driving a car, carrying passengers exceeding its legal seating capacity. So, for example, in a car, you can sit no more than 4% and then you carry more than 4% or a very common situation is in a pickup or lorry when there is a fixed number of persons and then you exceeded that. that number. One of the very interesting legal issues that I come across under this head is, now let\'s say that the vehicle in question has a seating capacity limit of 13% but the driver was carrying 15 or 14%. The interesting legal question is, what do the insurers do? Do the insurers refuse to provide cover for all? passengers or does the insurance provide cover up to 13 passengers and then the 14th of the additional passengers will not enjoy insurance coverage. So this is an interesting legal question. Of course the other legal question is the driver who allows excess passengers to be in the vehicle clearly has breached requirement under the insurance policy and he might have problems seeking recovery or seeking indemnity from the insurance company. Now we have sort of touched on this earlier on. In most insurance contracts, there is usually a prohibition clause where the policyholder or the authorized driver is not allowed to admit fraud or liability. And if they do so, they may have a ground to refuse insurance coverage. Now, in the course of my work, sometimes I come across a distinction between admitting and stating the obvious facts. For example, if the driver rear-ended a stationary vehicle, really there is no issue that he is liable. So it can be argued that in such a situation, he is merely stating facts that he actually rear-ended the vehicle in front that was stationary and agreed that he is at fault. Most of the time, the proper way to go about doing it is that he can state factually that he rear-ended the stationary vehicle, but he should stay clear from saying that because I rear-ended someone in front, I am therefore at fault. So usually, it is always safer for you to advise the client never admit fault. Another reason to refuse insurance cover is when the policyholder or the authorized driver fail to notify the insurance, either of the accident or of any proceedings arising from the accident. Proceedings of course includes civil claims, but there\'s an interesting point whether it would also include criminal proceedings. Leaving this as a matter of argument, it is always advisable for you to tell the client anything whether it is a criminal case or a civil case relating to the accident, bring it to the attention of the motor insurance to avoid potential breach. This point came about in the case of India International Insurance Private Limited versus I want to go into the details of the case, but generally speaking, the brief of this case is like this. Ms Joanne Ho is the policyholder. She was involved in an accident. She received a civil claim that was made against her. She notified her insurers duly, which is India International Insurance. However, over and above the civil claim that she received, she also received an offer of composition from the traffic police arising from the accident. She accepted the offer of composition. Now the insurers took objections to that and claimed that she has failed to comply with her obligation to notify them of the proceedings from the traffic police. The matter was disputed and it went to court and the court basically agreed with the insurers and found that she was enriched and the insurers were entitled to disclaim their contractual liability. The case was not appealed against. If you ask me, there are possible arguments against the correctness of that decision, but I will not give. more details about this and this is something that perhaps you may want to dwell or dig deeper should you come across a similar situation. So that is basically the end of this part of the video presentation and I hope that it has been helpful. We will go to the next one. Thank you. B24 PIPD - Lecture 2 - Pre-writ considerations - Property Damage? Personal Injury? Or both Pre-action protocols - Compliance with pre-action protocol is mandatory prior to commencing legal action in court - **[Objective]** of the Pre-Action Protocol - **[Applicability]** of the Pre-Action Protocol - **[Notice]** of Accident and Pre-repair Survey (PRS) for NIMA claims - The first is of course **[Appendix B]**. which is known as the pre-action protocol for personal injury claims and non- injury motor claims. The second is **[Appendix D]**, which is the benchmark rates for costs of rental and loss of use. Appendix D is a pre-action protocol that is relevant for what we call a NEMA claim, and it contains a table of benchmark rates that the court will refer to in assessing a **[suitable multiplier]** for a claim for loss of use when the vehicle is being repaired or when the vehicle cannot be used again. Non- Injury Motor Accident **[(NIMA)]** Claims - **[ Letter of Claim]** 1. 2. 3. 4. 5. - Documents - Potential **[Defendant's response]** - Nomination of **[Joint expert]** - **[Negotiation]** and 10 day's Notice Lodgement of claims below \$3,000 with **[FIDReC (paragraph 17.1 of Appendix B)]** - **[FIDRAC NEMA Scheme]** - **[ Exceptions]** - **[Sanctions]** for non-compliance - paragraph 18, paragraph 19, and even paragraph 17 on the FIEDEC procedures?? 17\. Lodgement of claims below \$3,000 with FIDReC - 18\. Exceptions to FIDReC proceedings - 19\. Costs sanctions for non-compliance with requirement to lodge the claim/continue with proceedings at FIDReC - Multiple collisions - Then how do you **[split the cost?]** - **[ Limitation Periods = 6 years Mixed claims = 3 years]** - So you need to bear in mind that if you are representing a mixed claim or claimant with a mixed claim, 33:18 Make sure that you found the read within the 3 year time band (?) - One Cause of Action - Ng Koon Choon v Tang Wee Goh \[2016\] 3 SLR 935