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Motor Liability

  • What is negligence?

We are going to cover:

Learning Objectives

  • Elements to establish negligence

  • Contributory negligence

  • Investigations and information sources

Click the headings above to jump to that section,or press on the right hand edge of the screen to start the session.

EiC Motor Level 1, chapter 8 (Assessing Liability)

This session builds on knowledge from:

Assumed knowledge

Note: This Motor Liability session does not cover the learning outcomes for assessing liability on Casualty BI and Casualty Non-BI claims - please refer to the dedicated pathway for these.

For us, negligence is the most important civil wrong (tort) - something which causes a person to suffer loss or harm, resulting in a legal liability for the person committing the act (the tortfeasor).Virtually all civil actions in vehicle accidents are based on negligence.

  • The omission to do something that a reasonable person would do
  • Doing something that a reasonable person would not do

Negligence is:

What is negligence?

Seems reasonable! This definition of negligence was established in Blyth v Birmingham Waterworks Company (1856).Click on the image to the left to find out more.

Imagine the road outside. Which of these has the greatest potential harm? Click the image of your choice.

Exercise reasonable care - take a moment to think about this word 'reasonable'. How would you define this?Think of examples of what is 'reasonable'. Would a colleague or friend define it in the same way as you?

Main principle

What is negligence?

Take account of the potential harm that they might foreseeably cause to other people.Is 'foreseeable' an absolute quantity, or could this be based on judgement?

The defendant owed the claimant a duty of care

There are three elements to consider when assessing whether an act has been negligent.

Elements of negligence

The defendant breached that duty

The claimant suffered damage as a result of the defendant's breach

Click on each of the images below, to discover what they are.

Without all three of these, there can be no negligence. Think of it like a tripod; take one leg away and the tripod falls over.Let's take a closer look at each of these three.

Judges now base their decision on whether there has been an act of negligence on the case of Caparo v Dickman (1990) which introduced a suggested threefold test in order to establish a duty of care - click each image for more.

Duty of care

The harm must be reasonably foreseeable

There must be a relationship of proximity between the claimanant and the defendant

It must be fair, just, and reasonable, to impose liability

A duty can be breached by an act or an omission, i.e. by doing something or failing to do something, and it is judged against the actions of a 'reasonable person' in the same circumstances.

Breach of duty

  • even highway furniture - click for examples!

Under this objective test it wouldn’t matter whether the driver had passed their test a week before the accident, or 20 years ago - the same standard of care would be expected of each. It can be considered a benchmark.Fortunately in the case of a motor accident, determining whether a defendant has breached their duty of care is comparatively straightforward.Every road user owes a duty of care to every other road user, that is:

  • Pedestrians
  • Horses
  • Cycles
  • Motorbikes
  • Cars, vans, trucks

This is known as an objective test because everyone is judged against the same standard - click for more information.

A typical incident can give rise to claims for varying types of damages. Click the icons below for more information about each.

Damage caused as a result

The purpose of the principle of foreseeability is to ensure that damages paid by the at-fault insurers are sufficiently closely linked to the insurance contract.Did the defendant’s negligence directly cause the damage - was it the proximate cause? If not then the defendant will not be liable.Was the chain broken by any new intervening cause (novus actus interveniens)?If there is an intervening cause then the chain of causation is broken and the defendant cannot be held liable - their actions are not the proximate cause of the damage.

The circumstances of a motor accident might mean that both vehicles share responsibility, i.e., they have both been negligent. When we come to look at case law in another session, you will see that liability doesn't have to be shared equally, it be applied in a variety of ways, for example, two-thirds to one-third, or 80% to 20%, etc.

Vehicles

A pedestrian steps out into the road between two parked cars, without looking, and is then hit by a driver who is not paying attention. The pedestrian has been negligent by stepping out without looking, and the driver is also negligent for not paying attention.The pedestrian may fail to recover all their damages from the driver's insurer.

Pedestrians

Contributory negligence

This applies when both the claimant and the defendant have, through their negligence, contributed to the loss suffered. Sometimes the victim themselves may have been negligent in some way, for example:

Click the i for extra information on contributory negligence

Information sources to determine our liability - click the icons

Forensic reports

Physical evidence

Case law

The internet

Witnesses

Locus reports

Police reports

DVLA

The Driver and Vehicle Licensing Agency (DVLA) is a government agency based in Swansea, but with other offices across the UK.Its two main departments are responsible for:Issuing licences to driversIssuing licences for vehicles (including vehicle registration and road tax).Click on each icon below for more information.

Registered KeeperEnquiries

LicensingEnquiries

Click to return to the Information Sources page

MIAFTR

In 1987, to try and combat the rising tide of motor claim fraud, UK motor insurers and the ABI established MIAFTR. Click on the icons below to explore the data sources which feed into MIAFTR.

Vehicle total losses

Police details regarding stolen vehicles

Stolen unrecovered vehicles

Leased or financed vehicle data

Motor Insurers' Anti-Fraud and Theft Register

Vehicle total losses

Insurers are required to notify both customer and Third Party total loss vehicles onto MIAFTR.We will be notified if the vehicle, claimant, or claimant's address has been recorded previously. We can then make enquiries to eliminate any risk indicators or concerns from the claim.Our salvage provider, Synetiq, will add the vehicle onto MIAFTR. If a perpetrator tries to sell a stolen vehicle, a dealer with MIAFTR access will be able to see that the vehicle has been stolen.

Click here for a refresher on the different types of total loss.

Vehicle thefts

Insurers will record if vehicles are stolen and not recovered, and also stolen recovered.Even if a vehicle is recovered, possibly with no damage (or minimal damage), it will always be on MIAFTR as a vehicle which was stolen at one stage.

Click here for more information about vehicle thefts

Police details

Customers whose vehicles are stolen, need to report the theft to the Police, in order to receive a crime reference number, which they will need to successfully claim from us.When the customer reports the theft to us, we will be able to see on MIAFTR that the theft has been reported to the Police, and that the crime reference number matches.

Lease or finance

Depending on the type of financial arrangement, we are likely to have to settle the lease or finance company's interest in the vehicle first. Click on each icon for information about the two main categories:

Click to return to the Information Sources page

The Motor Insurers Database (MID)

Please click here for background information.

Enables you to identify the insurers of a Third Party vehicle - speeds up recovery

Click to return to the Information Sources page

You can only search using a full vehicle registration - no facility for a partial search, or name and address

MID will provide the insurer(s) of the vehicle on the specified date, along with their contact details. You can then telephone that insurer to start your enquiries

If there are no search results, it is likely that either the search data is incorrect, or the vehicle was not insured on the date.

Claims and Underwriting Exchange (CUE)

Please click here for background information.

Click to return to the Information Sources page

Allianz proposal forms contain a statement allowing the company to maintain CUE records, and to share them with other insurers.

Limited Search - we can access information relating to our policyholder.

Full Scope Search - we can obtain information on third parties.Because we have no direct mandate, we must have evidence to support the request.Fraud Reps and some senior claim handlers will have access to CUE.

CUE PI - This gives bodily injury claim handlers access to previous injury claims made by a particular claimant.For more information, please refer to the EiC Level 2 Pathway for Bodily Injury.

Police and Police Reports

Click to return to the Information Sources page

In general, the police will not attend the scene of a motor accident, unless:

  • There are injuries to any party involved or members of the public
  • There is any ongoing danger to those involved or other motorists.

A police report where no officers attended will therefore be of limited help in determining liability but it could be useful if it has been difficult to obtain details of other parties involved.

If the police did attend, a report is likely to be short, detailing the parties involved, and brief statements from the drivers regarding the circumstances, along with witness details.

Reports on more serious accidents may be considerably more detailed, and may include detailed locus sketches, photographs, and potentially some forensic analysis.

The police do not release reports until they have concluded their investigations - click here for some guidance.

Police reports

Applying for Police Reports

Click to return to the Information Sources page

Before starting down this route, check two things:

  • Did the police definitely attend?
  • Can the customer provide an accident reference number or a log number?

We use the external provider Netwatch to obtain police reports - rather than applying directly.

Netwatch guides us through the bespoke process for each police force.We don't need to make a payment immediately - Netwatch manages this.

Netwatch will chase each police report every 2 weeks until either the report is received, or the police provide an availability date. Once available, it will be send straight to us.

Netwatch can be found at https://rpr.netwatchglobal.app/login

Police reports

Locus reports

Click to return to the Information Sources page

What is a locus? Click to find out.

A locus report is a detailed report of the layout of the place where an accident has taken place.In contentious (disputed) claims, and where the layout itself is disputed, a locus report may be useful.

Where relevant, a locus report will contain information such as the road widths, distances between junctions, hazards, traffic light sequences, and anything else which will assist us in making a decision.

What will a locus report give you that Google Maps or Streetview won't?Have a think for a moment, then click to find out.

Locus reports are requested through the CIITS system, and instructions will automatically allocate to the claims investigator who covers that postcode.

Locus reports

Locus report - example

Click to explore each item on the page to learn more.

LOCUS DETAILS

Click to return to the Information Sources page

LOCUS PHOTOS

CI COMMENTS

RECOMMENDATIONS

Locus reports

Witnesses

Click to return to the Information Sources page

Anyone who sees an accident take place (ideally before, during, and after the collision), is a witness.

Are all witnesses equal?Witnesses may be independent, or non-independent. Click for more information.

In England & Wales, a non-independent witness will usually be disregarded, as their evidence is likely to be (unintentionally?) biased in favour of the person the witness knows.

In Scotland the distinction between independent and non-independent does not exist - Scottish courts treat them both equally.

Regardless of status, any witness could be useful to us, as they could provide information that our customer's driver does not know, or has forgotten.This works both ways - it could support the third party instead of our customer!

Witnesses

Witnesses

Click to return to the Information Sources page

It is important that we ask questions as soon as a claim is reported, about whether there were any witnesses to the incident.

Why? Click to explore this.

Pick the phone up straightaway and contact the witness. Did they actually see the incident take place? Are they willing to make a statement?

Is their evidence credible (does it make sense, it is delivered confidently) and does it agree enough with one party's version of events or the other?

Would the witness be prepared to attend court? This may be the last thing on the person's mind when they are filling out our witness questionnaire.

If you suspect any undisclosed links between the witness and any of the parties involved, then consider running 192 checks, and referring the claim to your FCO.

Witnesses

Forensic reports

Click to return to the Information Sources page

There may be a few occasions when a claim handler might want to obtain an independent scientific or forensic report. Two examples are:

Metallurgical analysisThis can help to determine if a part has failed because of the accident, or because a mechanical breakdown (such as a latent defect).

Forensic fire reportThese can help to discover the cause of a fire, e.g., a mechanical issue, an electrical problem, or arson.

We will need to consider the economics of these forensic reports - costs can easily exceed £2,000 and they still might not be conclusive. Refer to a TAH for advice on an individual claim.

Physical evidence

Click to return to the Information Sources page

On every claim, there is often a wealth of physical evidence available to consider.Click on each of the examples below to reveal more information.

The damaged vehicle itself!

Engineer's report - click for more

Images of the damage

Vehicle keys - click for more

The Vehicle Registration Certificate (V5C) - click for more

MOT - click for more

Service history - click for more

Previous repair invoices or receipts for work

Case law

Click to return to the Information Sources page

Previous accidents which were resolved in court, can be helpful or persuasive in determining liability for an accident you have in front of you.The higher the court, the more persuasive it is.The decisions of superior courts (higher up the structure) are usually binding on inferior courts (lower down. This means that court cases with similar circumstances can be binding on future decisions.These pieces of case law can be used to help make liability decisions, and to help explain to the customer why certain decisions have been made.

Click here for a reminder of the structure of the courts system in England & Wales.

Scotland has a different judicial system, click here to explore their structure.

There is a large index of case laws, covering topics such as insurance principles, the MIB, negligence, liability, manoeuvring, and so on - this is called the Collisions Digest.

You can access this on DEL - click here to go directly to the Case Law topic.

The Internet

Click to return to the Information Sources page

The internet is a vast source of information to a claims handler.

This is not an exhaustive list, but here are some helpful suggestions - these are clickable:

- The Financial Ombudsman Service

- The ABI GTA (useful for credit hire claims)

- Auto Trader (help valuing vehicles)

- Google Maps

- The Highway Code

- 192 Online

- Companies House

Local news websites can be extremely useful in making decisions about the severity of an accident (and therefore the extent of our liability). For example, if an incident is serious enough to warrant a local news story, it is likely there could be road closures, serious injuries, clean-up costs, and even air ambulances.

Let's see what you remember!

Let's see what you remember!

Let's see what you remember!

Let's see what you remember!

Let's see what you remember!

Let's see what you remember!

Let's see what you remember!

Motor Liability

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This is best illustrated with an example. In the case of Robinson v Chief Constable of West Yorkshire, a small group of police officers were in the process of arresting someone. The suspect struggled violently, causing the group to move. They knocked into Mrs Robinson, a passer-by, causing her injuries as a result, and she sued the Chief Constable.The appeal judge said that they did not owe Mrs Robinson a duty of care and had not acted carelessly in carrying out the arrest.It would not be fair, just, and reasonable to impose a duty on police officers to every member of the public during an arrest.

Fair, just, and reasonable

In commercial vehicle insurance, many more vehicles are leased or hired than in personal vehicle insurance.This means that on average, a commercial vehicle is more likely to have been properly serviced.A vehicle that has been properly serviced will be worth more than one which hasn't.In disputed cases, examining the service history will help us to rule out poor maintenance as a proximate cause of the incident.

Vehicle service history

Once a vehicle is 3 years old it will require an annual MOT. Cearly a vehicle with an MOT is going to hold its value much more than a vehicle without.Is the MOT coming up for renewal?Has the vehicle recently failed an MOT?

MOT Certificate

You can check the MOT status of a vehicle by clicking the link below.

https://www.gov.uk/check-mot-status

As part of the search, you will also be able to confirm that the make and model of the vehicle being claimed for, matches the official records!

First went live in September 2001.The UK has one of the worst records in western Europe for uninsured driving.Estimated that 1 in 20 vehicles on the road do not have proper insurance.Most motorists are paying an estimated £15-£30 of their premium to compensate innocent victims of these uninsured drivers.The EU Fourth Motor Insurance Directive 2000 obliged each EU member state to establish a database detailing:

  • Vehicle registration number
  • Policyholder (or owner/usual driver/registered keeper)
  • Insurer + policy number + contact information
  • Period of validity
The UK database, MID, is managed by the Motor Insurers Bureau (MIB)

The Motor Insurers Database - background

The Financial Ombudsman Service

The Financial Ombudsman Service is a free and easy-to-use service that settles complaints between consumers and businesses that provide financial services. They aim to resolve disputes fairly and impartially, and they have the power to make businesses put things right.

https://www.financial-ombudsman.org.uk/

The FOS also runs a Technical Helpline, which claim handlers (especially complaint handlers) can use to request advice on how to handle a particular case. Their advice is confidential and non-binding.You can contact the helpline on 020 7964 1400, between 10am and 4pm.

The concept of foreseeability focuses on what an ordinary reasonable person would have predicted, as potential risks or harm.Example - You and your neighbour have a shared drive. She has lit a bonfire. Is it foreseeable that sparks might land on a fuel container which is in plain sight?Example - On the other hand, is it foreseeable that sparks from this bonfire travel a few metres to a river, and ignite an oil spill which is lying on the water?

Foreseeability

Vehicle key forensics involves the recovery of digital evidence from keys, and from the transponder chips in the vehicles.This can include:

  • Vehicle Identification Number (VIN)
  • Mileage
  • Make and model
  • Transponder ID
  • Key number
  • Fuel status
  • Key usage information

Vehicle keys forensic analysis

Temporary closure

If a business has been forced to close due to an incident, they will still be obliged to pay their staff, as well as suffering loss of income.These expenses could be mitigated to an extent if a business is able to hire replacement vehicles or equipment, but for a customer-facing business on the high street, this might not be an option. A fast food restaurant cannot simply put up a tent outside its damaged front door in order to continue trading.The quicker repairs or reinstatement can take place, the lower these expenses will be.

No, out of these three, a pedestrian would cause the least foreseeable harm under normal circumstances. If another road user were to be negligent, the pedestrian would potentially come to the greatest harm.Close this window, and choose again.

Pedestrian

It is a database of incidents reported to the participating insurance companiesApproximately 65% of the motor insurance market are participantsFor motor - the database records incidents reported against policies issued in the UK, Channel Islands and the Isle of ManDetails of each report are kept for six years

CUE - what?

CUE - why?

Established in 1994 as a means of identifying and controlling fraud, for example, claimants making repeated/numerous claims

The exact terms and conditions here will vary, but broadly, an agreement of this type will mean that once the financial interest is paid off, the customer will own the vehicle.It is likely that if we pay off the finance company's interest and there is money left, over, the remainder will go to the customer.Refer to a TAH if you need any help with this.

Personal Contract PurchaseConditional SaleHire Purchase

Loss of earnings

If a claimant has been unable to work, either in full or in part, then they may be entitled to claim the loss of earnings or income from the at-fault insurer.The longer it takes for the claimant to be able to work, the greater this head of claim will be.We use the company Toppings to examine loss of earnings claims.They have delegated authority to reach an agreed settlement with the claimant.

Locus

A particular position or place, where something occurs, or is situated.Latin. Plural - loci.

This document can be extremely useful for confirming that a claim is legitimate.Here are some questions that the V5C could answer:

  • Is the vehicle stolen unrecovered/total loss but has only very recently been purchased?
  • Does the customer really own the vehicle or otherwise have a financial interest?
  • Could the policy's new vehicle replacement clause apply?
  • Do the make and model on the certificate match the vehicle we have examined?

The Vehicle Registration Certificate (V5C)

Proximity in this context means not physical closeness per se, but any form of relationship between the parties.For example, in Nettleship v Weston, a learner driver was found to owe a duty of care to their instructor in the vehicle.In Chadwick v British Railways Board, Chadwick was a window cleaner who suffered shock after rescuing rail passengers in a crash. He was not physically close to the British Railways Board, but they clearly were responsible to him.This is sometimes called the neighbour test.

Proximity

Yes. Out of these three, a truck has the greatest potential to cause harm.It is a much larger object, carrying a load, capable of travelling at great speed.Well done - close this window and continue with the session.

Truck

​In brief, the case discusses whether it would have been reasonable for Birmingham Waterworks to have taken protective action in advance of extreme cold. The court found that Birmingham Waterworks could only have been negligent if they had failed to do what a reasonable person would do in the circumstances. Birmingham had not seen such cold in such a long time, and it would be unreasonable for the Waterworks to anticipate such a rare occurrence.Close this window to continue, or click on the image to read the full text of this case.

Locus v Google Maps

There's no doubt that Google Maps and Streetview are very powerful tools, and often, they will give us what we need.However, the images are only accurate on the date the images were taken.

  • Google can't give you widths of lanes/roads
  • Road layouts can change
  • There could be temporary roadworks
  • Obstructions (e.g., trees/foleage) may have changed

Previously in law, if the victim was in any way partially negligent, their entire claim failed.This changed with the passing of the Law Reform (Contributory Negligence) Act 1945.

Previously...

Elements of contributory negligence

Failure to take care...

Which contributes to the loss or damage...

Will result in a reduction of the damages recovered (proportionate to the claimant's share of responsibility).

Here the CI has recommended that we review liability - but it could have been a case for the Major Loss Team, or for CVT. The CI's at-the-scene insights can be very valuable.

If a Third Party has been injured as a result of the negligence of our customer, they may be entitled to claim general damages, that is, compensation for the pain, suffering and possible loss of amenity that they endure.Bodily injury claims are subject to evidence, just like any other. A claimant will need to undergo medical examination, the severity of the injury determined, and their prognosis evaluated.Injuries can also be psychological as well as physical.

Bodily injury

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A legitimate engineer's report, whether created by Allianz or by an independent engineer, can tell us a great deal about a claim and about our liability.A proper engineer's report will comment not just factually on the damage, but also whether the damage is consistent with the reported circumstances.Other factual information will help us to determine whether there has been any contributory negligence, by remarking on the general roadworthiness of the vehicle, listing any previous/unrelated damage, and also looking at the tyre tread depths.

Engineer's report

Street furniture

Road signs - illuminated or not

Central reservations and other types of crash barrier

Bus shelters

Benches

Traffic lights

Roadside pedestrian railings

Remember that the Police's main concern is law and order, i.e., criminal matters, rather than helping with insurance claims, which are civil matters.If there are criminal proceedings underway, and the police report won't be released until these have been concluded, this may mean that we have to investigate in other ways.If we are trying to find details of the fault party involved, it's possible that they will release this to the customer, if they won't release it to us.Have a look at the Information Sources pages on Internet resources for further help.

Police reports

Hire costs

In motor accidents, it is common for a non-fault Third Party to need a replacement vehicle, which is usually obtained either from a credit hire organisation, or from a company instructed by the at-fault insurer.Please see the EiC Credit Hire Pathway for further information.For other types of claim, a business may need to hire equipment or temporary premises, in order to allow them to continue to trade.The longer the claim continues, the greater these expenses will be.

Objective testsAnswers are either right or wrongYou either reach the required standard or you don't - think about passing an EiC Level 1 assessment., you either reach 65% or you don't.

Objective and subjective testing

Subjective testsHas someone met an appropriate standard based on the merits of that specific person?There's a baseline that you'd expect everyone to exceed but who do you believe will perform better, a junior doctor or a senior consultant?

We can obtain a lot of information by examining the Vehicle Registration Document (V5C) and the driving licence.If we have concerns about the validity of either or both of these documents, the DVLA will (subject to a mandate being completed by the customer), provide these details direct to us.Again, there is a fee for this.

Licensing Enquiries

Remember that the Police's main concern is law and order, i.e., criminal matters, rather than helping with insurance claims, which are civil matters.If there are criminal proceedings underway, and the police report won't be released until these have been concluded, this may mean that we have to investigate in other ways.If we are trying to find details of the fault party involved, it's possible that they will release this to the customer, if they won't release it to us.Have a look at the Information Sources pages on Internet resources for further help.

Police reports

In this type of arrangement, the finance company own the vehicle, and the customer will never own the vehicle.If we pay off the finance company's interest and there is money left over, no payment will go to the customer.Refer to a TAH if you need any help with this.

Personal Contract LeaseContract LeaseLease

You can click each photo to show it full size.

Repairs

If damage has occurred, then this needs to be repaired, or the property replaced or reinstated.Common examples include:

  • vehicles
  • walls
  • street furniture (such as lampposts, street signs, bus shelters)
  • buildings
  • houses

As time passes, a witness's recall will start to fade, and details which they would have remembered earlier, will begin to vanish from their mind.Imagine the customer outcome if we fail to get a witness statement from someone whose testimony would have supported the customer!

Strike while the iron is hot

If a witness has time to discuss what they saw with any of the parties involved, their testimony can be subject to bias.

Imagine that you tell the story about what you saw to multiple people - family members or friends. It's possible that each time you tell the story, it might be inflated slightly, to sound more 'impressive'.

Witnesses

Handlers are responsible for completing the total loss screen on Claim Center, and using the salvage instruction button.The crime reference number will always be required, so that we can log our interest with the DVLA.There are potentially several different types of vehicle theft claim, which will each be handled slightly differently - click on each one to find out more.

Further information on vehicle thefts

Stolen, never recovered

Recovered after claim settled

Recovered before claim settled

Recovered before claim reported

Cannot be repairedWhole vehicle must be crushed

Vehicle total losses

A

B

N

S

Cannot be repairedParts salvaged then remainder crushed

Structural damage but should be repairable

Non-structural damage that is repairable

No, not quite.It's certainly true that a car has the potential to do a great deal of harm. Other factors may come into play here, such as the roadworthiness of the car, and the speed at which it is being driven.Close this window, and choose again.

Motor car

In theory, a non-independent witness is more likely to provide evidence which agrees with the person that they know.Think about a recent car journey where you were with a friend or family member. How likely is it that, when questioned, you'd provide a statement which supported the other party?It may be more complicated than simply whether they know the person involved.It could be a romantic relationship, or a business relationship - such as being colleagues, team leader and team member, or supplier and customer. This could lead to a conflict of interest.What impact could a statement have on that relationship? This may impact the witness's willingness to help us.

Independent and non-independent

The DVLA will provide insurers with the details of the registered keeper of a vehicle, on a specific date. There is a fee for this.This is helpful when we are trying to trace the registered keeper when a search of the Motor Insurers' Database (MID) has not provided any search results. This can be useful if the responsible driver has failed to provide their details, or gave incorrect details.If you believe you need to carry out a Registered Keeper Enquiry, please refer to your TAH.

Registered Keeper Enquiries

You can see here that the CI has made helpful comments about liability and our next course of action.