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A car hit my broken down van on the side of the road - who's at fault?

I ran out of fuel and was stopped on the motorway as far over as I could go (no hard shoulder). I was there for some time and was on the phone to the police inside my van when I was hit at over 50mph in the rear. The driver is denying liability, they're saying that I was negligent by running out of fuel and placing myself in harms way.

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Firstly, never ever stay in your vehicle on a motorway if you break down. Secondly, the defendant is 100 per cent at fault. This is what I hate about the removal of the hard shoulder on the new congestion easing motorways, it will not be long before someone is killed. The other party is negligent under the Road Traffic Act and Highway Code for driving without due care and attention, they should have been able to stop adequately in the distance they could see.
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