Cycling accident claims and the blame game19 Jun 2012
Road deaths increased last year for the first time since 2003 (Transport for London figures, 2011), and with the number of cyclists seriously injured in road accident increasing by 16% since 2010 is it not time that something more was done to protect vulnerable road users?
I cycle to work in North London every day and witness first-hand the sense of invisibility and the constant danger of car doors being flung open, lorries turning left and drivers on mobile phones looking the other way.
Once I get to work I deal with cases of other cyclists who didn’t make it to work: the father of one who crossed the road on his bicycle and was killed by a car driver who failed to see him, the doctor whose career was ruined when a drunk driver knocked him off his bike.
What is the purpose of compensation?
The purpose of the civil claim I bring on behalf of injured cyclists is to arrange rehabilitation and to secure compensation to put them back in the position they would have been in if the accident had not happened, so far as money can do that, but I don’t know any clients who would rather have the money than their old life back. They want prevention not compensation.
But it is not even guaranteed they will get compensation. In this country it is necessary in a civil claim to prove negligence against the other party, and in the cases where there are no witnesses this will be difficult. The onus of proof is on the Claimant.
Even if there were witnesses the police will not provide their details a) until any police prosecution is over and b) if the witness specifically agrees.
Then there are the cases where the injured party has no recollection of the accident. I act for many cyclists and pedestrians who have suffered a head injury in the accident and it is common for them to have amnesia as to the accident circumstances. These are the cases in most desperate need of financial recompense, but if the person who caused the accident denies it, in many cases it is impossible to prove fault.
In one recent case the only evidence as to the cause of the accident was the defendant driver’s claim that the cyclist was driving erratically and drove into the path of his passing lorry. In another, the injured party was unable to rebut the defendant’s claim that he was running across the road. In these cases the Claimant had to compromise his claim, by accepting some “contributory negligence”. In other cases the claim will fail completely.
Should there be a criminal penalty?
Some argue that the criminal penalty should be more severe. Criminal sanctions at present are hardly a deterrent: the police only generally prosecute when they have independent witness evidence and even then the penalty is normally a fine and penalty points. But to punish a driver more severely for what is an act of negligence rather than a deliberate act risks the punishment fitting the consequences of the crime rather than the crime itself.
Others argue that there should be a change in the law to impose “strict liability” on the vehicle driver involved in an accident where a cyclist or pedestrian is injured. Strict liability means what it says: the driver is automatically liable for damages in negligence and the question of who caused the accident is irrelevant; his insurers will pick up the tab.
Such a change would result in a massive increase in insurance claims, at a time when insurance premiums are at record high levels.
It would also undermine this country’s fault based system. That is not necessarily a bad thing in itself, but there is some logic in and some general public support for a system where the party at blame becomes legally liable for the consequences of his actions. Accidents are often the result of negligence on the part of both parties involved, and cyclists are as guilty of breaching the rules of the road as anyone else. We all see cyclists running a red light, cycling on the pavement, failing to signal, riding at night without lights on, overtaking on the inside etc. Should this behaviour be ignored when it results in an accident? Obviously not.
Change to the law or to the rules?
The answer is not to change the law but to change the rules. To rebalance the equation in favour of the vulnerable party, the party that ends up injured in the road collision. A car is a potentially lethal weapon, a bike is no protection.
The answer is to change to change the onus of proof, especially in cases where the Claimant is so injured that he is unable to describe the accident (and in fatal accident cases) so that there is a presumption of negligence on the part of the driver. They have similar rules on the continent. That presumption could be displaced by evidence that the cyclist (or indeed the pedestrian) caused or contributed to the accident.
In that way we may all drive with more consideration for cyclists, and if not we – to be precise our insurers – will be more likely to pay for the consequences.
Been involved in a cycling road traffic accident? The personal injury claims specialists Osbornes solicitors can help!
If you have been injured in a cycling accident or road traffic accident call to speak with us on a confidential basis about your personal injury claim. After hearing all the details of the accident we will be able to advise you whether or not you may be able to make a claim for compensation.
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You will be put through to a member of our personal injury team who will ask you specific details about your injury including where and when it took place. It is helpful to the claims process if you can provide us with as much information as possible, including any relevant pictures of the injury, pictures of where the injury took place, details of any witnesses and reports of any medical treatment you had as a result of the injury.
We will then be able to advice you on whether or not you can make a claim for compensation.
Stuart Kightley is a recommended Personal Injury Lawyer in London by legal directory Chambers & Partners. The Personal Injury team is also recommended in the Legal 500 directory. If you have been involved in an accident, Osbornes Solicitors can help you claim compensation on a no win no fee basis.