Question: On November 2, 2006, while travelling on Deanery Road in a southerly direction, I was rear-ended by a Toyota Corolla. I activated the 'on-the-scene' response available to me under my policy. Security- and accident-scene personnel soon came and took charge of the situation. The third party and I reported the matter to the Vineyard Town Police Station.

My insurers asked in a letter dated December 14, 2007, to obtain a police report. When I visited the station, I was informed that the officer who had taken the report was on extended leave. I visited the station four times after that without success. I learnt afterwards that he had been transferred to Bull Bay.

I visited that station at least twice and learnt that the officer was attending a training exercise. No one knew when he would return. It was suggested that I visit the Ministry of National Security to file a complaint. I decided to leave the matter alone. In May of this year, my insurers told me that I was on my own. They gave me a 'deal direct letter' addressed to the third party's insurers. It also said that they had a financial interest in the matter and the cheque should be made payable to them. Can you please help me to sort out this problem?

- 'Bruck', Westmeade, St Catherine

Answer: The persons who handled your claim at the insurance company should be fired. They are hopeless. It is surprising that a company with a client care and claims units and a legal department - in a private-sector entity of all places - could treat you so poorly. They are no different from the 'joker', supposedly a public servant, who recorded your statement at the police station.

Motor insurers find police reports useful for a number of reasons. They back up information in forms that policyholders and drivers complete that say accidents occurred. They give details about the mishap.

This is based on the statements that the persons involved and witnesses make to the police as required by regulations. They say whether any of the parties are likely to be cited for traffic violations. This provides clues about who is at fault.

Reports also have information about the drivers, their licences, motor-insurance particulars, and details of those injured.

The law provides a substitute to a police report. At least, this is my opinion. I found this out, thanks to my walking partner, friend and attorney-at-law, Howard Malcolm. He referred me to The Voluntary Declarations Act. It was drafted, the year before George Brayton, an American engineer, developed an unsuccessful two-stroke kerosene engine in 1873.

Section 2 of the law says: "In any case, when by any statute made or to be made, any oath or affidavit might, but for the passing of this act, be required to be taken or made by any person or persons on the doing of any act, matter, or thing, or for the purpose of verifying any book, entry, or return, or for any other purpose whatsoever, it shall be lawful to substitute a declaration in lieu thereof before any Justice (of the Peace); and every such Justice (of the Peace) is hereby empowered to take and subscribe the same."

Section 11 also states that: "Every declaration so made ... shall in all actions and suits (in the event of the person making the same being dead or presumably dead) be received in evidence in proof ... as if the person or persons making the same had appeared and sworn or affirmed the matters contained in such declaration viva voce in open court: Provided that in every such declaration there shall be expressed the age, or supposed age, and addition of the person making such declaration, and the particular place of his abode."

Make a statement

Make a statement or declaration about the accident under the provisions of the law. It can be used to help settle your claim against the third party and/or his insurers.

This is based on your difficulties in obtaining the police report, the reasons why insurers use them, and the aims of the act. This is my common-sense opinion.

I am not a trained lawyer. To be effective, the declaration about the accident should also contain the following words: "I ... , do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, and by virtue of the Voluntary Declarations Act."

You and the JP should sign the declaration.

If your insurers have not made any payments, I do not see how they can have any financial interest in any payout. Ask them to redraft the deal direct letter and delete the part about making the cheque payable to them.

When this has been done, contact the third party's insurers directly. Negotiate settlement. Use your voluntary declaration to prove that the accident actually took place.

If they were to say that the third party is insured but did not report the accident, ask them to settle your claim under section 8 of The Motor Vehicles Insurance (Third-Party Risks) (Amendment) Act, 1989. Insurers sometimes try to avoid paying claims where the driver who caused the mishap failed to make a report. The loophole was closed by Section 8.

You need to contact the third party's insurers before the third anniversary of the accident. If you don't, what lawyers call your cause of action against the third party will expire on that date. If that were to happen, you would be up the creek without a canoe or a paddle! Finally, find another insurer when it is convenient to you.

Cedric E. Stephens provides independent information and free advice about the management of risks and insurance. Email: aegis@cwjamaica.com.