This article was published in 2004, in Newsletter 55.
Collisions do happen and, these days, they happen a lot more frequently than we would like. All road users owe a duty of care to other road users, whether they be pedestrians, cyclists, horse riders or drivers.
The severity of injuries can vary from minor cuts and bruises to catastrophic head injuries. In such circumstances, you or your representative should know what your rights are and what steps you can take to bring a claim against a person who injures you.
If, as a cyclist, you are injured in (or witness) a collision with a motorist, what should you do?
- Get as many details as possible from the person who caused the collision
- Call the police; they will want to investigate whether any charges should be brought against the driver. Where a collision involves injury, there is a legal obligation to call the police. Make a note of the police incident reference number for future use.
- Try and obtain the vehicle registration number so that your solicitor can carry out a search with DVLA to confirm the registered owner of the vehicle, and so that they can find out whether the vehicle is insured and, if so, with which company.
- Obtain the contact details of any witnesses – this is especially important if the police do not attend for any reason.
- Get medical treatment for any injuries from a hospital A&E department or from your GP, as appropriate.
Obtaining legal advice
These days, compensation claims are highly specialised. You need an expert. There has been a lot of talk in the press recently about claims management companies offering personal injury services. Some of these companies do provide an acceptable service but most simply do not. Unlike solicitors, they are not regulated and need not have any legal qualification. As a solicitor I recommend that you find an experienced and reputable solicitor to handle your claim in order to ensure you receive the best service possible.
You have three years from the date of your collision to bring a claim but it is always advisable to act as soon as possible. If you do not already know of a firm which carries out specialist personal injury work, you can find one in several ways:-
- The Law Society (0870 606 6575) can provide you with a list of solicitors in your area who specialise in personal injury work. This search can be carried out online at www.solicitors-online.com.
- The National Accident Helpline (0800 376 0149) can also refer you to a local firm who are on their panel.
Even over the phone, a solicitor should be able to tell you whether you have a good basis for a claim and all good solicitors should provide this initial advice and, if necessary, a short meeting to discuss the claim, on a free-of-charge basis. In a nutshell, in order to win your claim, you have to be able to prove that the collision was wholly or partly someone else’s fault. With no witnesses to the collision and no police reference number, this will be more difficult.
What happens with uninsured drivers or in hit and run cases?
If the driver is either uninsured or has left the collision scene and cannot be traced, your solicitor will advise you about the Motor Insurers Bureau (MIB). The MIB was set up by motor insurers to compensate the victims of uninsured and untraced drivers.
What about cyclist/cyclist and cyclist/pedestrian collisions causing injury?
If you are involved in a collision with another cyclist or with a pedestrian, and suffer or cause injury, it may be that claims will be covered either by a specific cycle insurance or by a home insurance policy (or a parent’s policy if a child). It is therefore worth checking your home or cycle insurance policy (in the section dealing with liability to third parties) the extent of your legal expenses cover. When you renew your policy, shop around to ensure that you get the best protection possible.
What are you compensated for?
If you are successful in establishing a claim against the person at fault, any compensation will include compensation for your pain, suffering and loss of amenity and it will be necessary to obtain independent medical evidence to report on your injuries. You will also be compensated for your financial losses arising from the incident. Financial loss claims include, for example, loss of earnings, medication costs, travel expenses and care costs. Your solicitor will discuss these matters with you.
But what about legal fees?
Initial advice about whether you have a claim should always be free.
If you win your claim, the basic rule is that the majority of your legal fees will be paid by the insurance company on top of the compensation. However, in all cases, no matter how straightforward, there is a risk that your claim will be unsuccessful and, if that happens, you may be ordered to pay your opponent’s legal fees.
There are two primary ways of ensuring that you are protected against this risk. These are legal expenses insurance, as mentioned above, or entering into a Conditional Fee Agreement where specialist insurance is obtained by your solicitor to protect against you from having to pay your opponent’s legal fees if your case is unsuccessful. Legal expenses insurance and Conditional Fee Agreements are both commonly referred to as being ‘No Win – No Fee’ schemes. Legal Aid is no longer available for personal injury claims. A useful article on ‘No Win – No Fee’ schemes appeared in Which? In February 2004 (pp14-16) — see article in this newsletter.
What can you do to avoid collisions and injuries?
You should read through The Highway Code to find out what your responsibilities are. The law states that at night, you must have rear and front lights lit. The best advice is to be sensible. Don’t ride more than two abreast, don’t listen to a personal stereo or talk on your mobile, don’t jump red lights, don’t cycle under the influence of drink or drugs and don’t carry passengers unless your bicycle is adapted to do so. Do remain aware of the traffic around you and the road conditions and make sure that you signal clearly before making any manoeuvres. In terms of clothing, there are no legal requirements as such, but wearing appropriate reflective clothing and a cycle helmet do have legal implications.
A cycle helmet is the one thing that has been shown to make a difference in some sorts of collision. Although it is not a legal requirement to wear one, if a head injury is suffered, the defending insurance company or solicitors may try to shift some of the blame onto the injured person by alleging that the injuries would have been less severe had a helmet been worn. There is no clear law here yet but we expect the courts to make a decision on this in the near future. It is likely that they will decide that an injured cyclist who was not wearing a helmet was partially to blame for their injuries, in much the same way as if someone injured in a car collision was not wearing a seat belt.
As an example, Mr X was knocked off his bicycle and sustained a fracture to his lower skull resulting in problems such as the onset of epilepsy and memory loss. He was not wearing a cycle helmet but did own one. Expert evidence was obtained from a doctor specialising in the protective qualities of cycle helmets, who, after considering the specifications of Mr X’s helmet, took the view that the point of impact was below the protection point offered by the helmet and therefore, even if the helmet had been worn, the injury sustained would have been the same.
With the law as it stands at present, it is down to such specialist evidence to consider whether a helmet would have made a difference to the injuries sustained.
Claimant Personal Injury Solicitor,
Taylor Vinters, Cambridge