We received a very positive response when we posted up the steps to keep in mind if you are ever involved in an accident. Whilst it’s often something we never think about, knowing what to do can make a big difference in dealing with the aftermath of an unfortunate event.
As a number of people posted comments about accidents they’ve had in the past I wanted to dive a little deeper into the topic. By demystifying the process I hope that anyone who ever finds themselves in an accident can feel confident in chasing it up.
If you have any follow on questions then we’ll be monitoring the comments and offering our advice.
Cycling personal injury claim procedures
In an accident you need to be aware of the steps you need to take. This includes, as in a car crash, not admitting any liability (think Shaggy: It wasn’t me).
If you have an injury then you have every right to pursue an injury claim. The injury may cause an inconvenience at best or in worse scenarios require expensive medical assistance. You also need to consider damaged bikes and equipment which need replacing. The other party is liable to restoring these goods to their previous condition.
In a claims process you should ideally look into contacting a legal firm that specialises in cycling accidents. London Cyclist works with CAMS who have a small team dedicated to exactly this. If you’d like to get some advice on your accident then you can enter your details below and they’ll call you back.
As is well known, the legal process can be an expensive one. As cyclists we are often uninsured and therefore may not by default have cover for this. A solicitor should discuss with you how to get funding and potentially you could enter in a so called “no win – no fee” scenario. In this case the premium for the service is recovered from the third party.
In the case of someone with insurance you are not legally obliged to use the firm of solicitors your insurer has a relationship with. This is your choice.
Gathering evidence and building your case
With your help your lawyer will begin to gather the evidence in support of your claim.
A good firm will take away the perceived ‘hassle’ of making a claim and be in contact
with you as little or as often as you, the individual, would like. The initial contact with
the solicitor may take some time so that all of the relevant accident and financial loss
information can be gathered, but they should then be able to pursue matters on your
behalf.
As soon as the lawyer has enough information they will write a letter of claim to the person or organisation who is responsible for the accident. They will then be known as the third party or Defendant. You are known as the Claimant.
Who’s fault is it (Or in legal terms: finger pointing!)
Part of the cycling accident claim process is to look in-depth at the series of events that occurred to decide who the blame can be attributed to. In some cases the liability can be split. A solicitor will look at previous cases to decide what level of split liability is likely.
- See also: When can you claim in an accident
Preparing a medical report
You will then need to see a doctor to prepare a medical report. The type of expert consulted will depend on the incident.
Out of court settlement
Once your lawyers have enough information to write the detailed letter of claim and it is sent, the timetable starts. The Defendant must acknowledge receipt of the letter of claim within 21 days.
This process is called the “pre-action protocol”. This is to encourage parties to exchange information and to reach settlement without the need for court proceedings.
If for any reason the Defendant does not forward the letter of claim to their insurer promptly, the insurer can ask us for additional time to respond. This is more common in cases involving potholes or highway defects. In cases involving another vehicle then your lawyers should also investigate with the DVLA who insures the defendants vehicle and a letter of claim will also be sent to the vehicle insurers.
Most claims are made against Defendants who are insured. Sometimes there may be
arguments as to whether or not the Defendant is insured. Where the Defendant is not
insured, the Motor Insurers Bureau may deal with the claim.
Once the insurer has acknowledged receipt of the letter of claim they have 3 months to make a decision on whether they will pay your claim. If the defendant admits liability then providing your claim is worth less than £15,000 that admission will normally be binding on the insurer. Usually settlement can be reached within a few months in this case.
If the defendant denies liability they must give reasons. They must also provide any documents relating to your claim. If the Defendant claims you were party to blame this must also be backed up with reasons. The Claimant’s lawyers must then respond to those allegations.
Financial losses
Your lawyers will have to send to the Defendant as soon as possible a list of all your financial losses with supporting documents. This is called the ‘Schedule of Special Damages’. These include pay slips for loss of earnings, invoice for repair of your bicycle and receipts.
If your cycling accident claim is not at the stage capable of settlement, then your lawyers can send over the financial loss documents and request an interim payment for some items on the schedule of special damages. This will often help with any financial shortfall that the Claimant may be suffering.
Proof from medical experts about the cycling accident
As part of the protocol your solicitors will have to advise the defendant that you were injured and nominate to them a list of three independent medical experts. The Defendant has the opportunity to object to any of the nominated experts, but in doing so must give valid reasons. This part of the process normally runs smoothly and you as the Claimant will be unaware of what is going on in the background unless you wish to be specifically updated on a regular basis. Save for the most straightforward of cases, it is normally appropriate for the medical expert to have access to your medical notes and records.
Once a medical report has been disclosed both sides can ask the expert to provide answers to written questions on the report. This may be questions relating to your losses, the reasonableness of them, the reasonableness of any period off of work and further comments about rehabilitation such as physiotherapy and it’s cost. Where the Defendant admits liability, your lawyers must disclose the medical report and give the Defendants an opportunity to make a settlement offer. If your lawyers deem said offer to be unreasonable it may be that you are asked to consider a counter offer before issuing Court Proceedings. Most offers are made on a Part 36 of the civil procedure rules basis and are open for acceptance for 21 days. After this period the offer can be withdrawn or left open.
Settlement offers
The Defendant can at any time make an offer in settlement. The offer can relate to the value of your claim or the issue of liability or both.
You can also put forward an offer to the Defendant. If the Defendant puts forward an offer which you reject and your case eventually settles either by negotiation or after a trial, then the Court can consider the offer in deciding who should be responsible for the legal costs of the action. The normal rule would be that if you do no better than the offer made then the other side would be awarded their legal costs. In the event that an offer is made your lawyers should provide you with full advice on this.
Your lawyers should advise you whether they think it is appropriate to put forward a settlement proposal on your behalf either before or after the Defendant has made an offer. This may well depend on specific facts of the case or the injuries that have been suffered. It may be that case that if your injuries are sever then it may not be appropriate to seek settlement of the claim. If under these circumstances the defendant makes a settlement offer your lawyers should consider it carefully and provide you with full advice before accepting or rejecting any such offer.
Taking it to the courts
On rare occasions the cycling accident claim will need to go to court. The document known as the “Particulars of Claim” will need to be completed which will contain full explanation of the basis of your claim and losses.
Even if court proceedings are issued, most cycling accident claims will still eventually settle before the need for a trial or hearing.
In April 2010 the Ministry of Justice introduced a new electronic claims process for claims valued under £10,000.00 which simplifies much of the above process for the most straightforward of claims.
Bringing a personal injury claim as a result of a cycling accident is as easy and hassle free as a good specialist lawyer can make it.
Any questions? Fire away in the comments..
See also:
Legal notice! CAMS is regulated by the Ministry of Justice in respect of regulated claims management activities, authorisation number: CRM2490
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As seen on The Guardian, BBC and The Independent.
This is all good advice – but what happens when a vehicle flees the scene?! I was hit in August, requiring a lot of stitches and about 10 permanent scars, but the lorry that hit me carried on and following investigation, the police dropped the investigation when no CCTV could be found to view the crash or identify the lorry.
I assume there isn’t any worth in claiming, but you never know!
This is all good advice, but one thing which isn’t mentioned is witnesses.
Fortunately I’ve never been involved in an accident on my bike, but I’ve been through this process as a result of a car accident where the other party was at fault. The other driver admitted fault at the scene, but later changed her story and tried to claim that I was speeding (I wasn’t, she just didn’t look before pulling out of a side road into my path).
What saved it for me was witnesses. If a passing postman hadn’t have volunteered his contact details I’d probably have ended up being forced to take the blame, at least in part.
If you’re in an accident, and you’re able to, make sure that you take pictures before the any vehicles are moved. Everyone has a camera on their phone now so there’s no excuse not to unless you’re badly injured.
Also if you GPS track your route, that can provide evidence to back up your version of events. Earlier this year, a cyclist in Denver successfully used GPS data to refute a false version of events given my the driver who hit him. The full story is here.
There are apps for most smartphones that can do this so you don’t even need to buy a dedicated GPS in many cases.
A few weeks ago, I witnessed a very similar accident to my own 8 years previously. I made sure that I stopped and gave a business card to the victim, and later filled in the witness statement for I was sent. Hopefully I’ve paid back the kind deed of the postman who helped me out.
I should also add that I use a helmet camera too. The quality isn’t great, but it may come in useful one day, whether I’m in an accident or just on the receiving end of aggressive behaviour by another road user.
It’s a MD80 Mini DV cam and was about £15. It came with helmet mounting fixtures too.
Hi Matt,
Claims can still be made in such a scenario via the Motor Insurance Bureau http://www.mib.org.uk/Home/en/default.htm under their untraced drivers agreement.
The most important thing about any road traffic collision is to call the police if you have been injurted, no matter how minor it may appear at the time, because if the vehicle is subsequently uninsured or untraced a claim can still be pursued. Having teh police notified will make things easier.
From your comments Matt, you can and should still be making a claim, particularly with scarring as you have described.. For an untraced matter there is a 9 month limitation period.
If you want some further information or advice please do email me direct.
Dave
James – one of the links in the article does cover your points.
As a general rule, speeding is not an act of hegligence that can be proved. Furthermore, just because one is speeding does not also mean that they were negligent.
Dave,
Sorry, didn’t spot that. Excellent checklist, and probably worth carrying a printed copy in one’s bike bag just in case the worst happens.
HI guys
It may be stating the obvious, but if you cycle a lot, the chances are that sooner or later you will have an accident.
But even if you only hit the streets once a month you can be unlucky.
If you are a member of a cycling club, from the local right up to the national, it is very likely you could be either insured for legal costs, or have access to a specialist legal firm such as Dave’s.
For a very small annual membership cost, this could be very well worth considering.
Have a Merry (and safe) Christmas,
Mike
good post, surely will come in handy for many people
Very timely article as today is 3 months since my accident. If you have been injured my best tip is to keep a daily journal describing how you feel and what problems you are experiencing directly as a result of the collision. I will be taking this journal when I get to see the nominated doctor. My bike was a write off but I had no joy with an interim payment
Talking to my brief I was shocked by what you could claim for and if it was your negligence you have sufficient cover? I have since joined the CTC
Yes, always worth keeping a journal or pain diary. When you go to a medical examination as part of a claim it’s your opportunity to tell the medical expert exactly how you feel and what impact the accident has had on you. The more you tell them the more that they can potentially put in the medical report.
As a general rule, when making a claim one will need to have support for any losses, even the pain suffering and loss of amenity. The medical report is a vitally important document in evidencing and confirming (or not) the reasonableness of any losses.
It is also true that as a cyclist you may be fully or partly responsible for an accident. So, if you are partly responsible and that part has resulting in damage to another or their property, they may claim from you.
The majority of cyclists are not insured and if a claim is made against you, it’s likely to come out of your pocket if you do not have any cover on any pther financial agreements that you have. Cover against third party claims is something all cyclists should consider.
ETA insurance offer it as standard and at very reasonable rates. I’m sure Andreas has bloged about insurance products before.
All Great advice here. One thing tho from personal experience is that the statute of limitations is only 3 years. I was in a long-winded negotiation with an Insurance Co after a serious bike accident with a 21 seater minibus and they found ways of drawing it out, making an offer that expired days before the 3 yrs and then claimed it was timed out. I threatened to expose their shady way of dealing with such matters, so I was ok. Beware!
This shows the importance of being represented by a specialist firm of solicitors. Tony, if you were ready to settle before the 3 years there is nothing stopping you from making a settlement offer on similar terms and as soon as it expires, litigate.
The limitation is 3 years from the date of the accident or 3 years from your 18th birthday if you’re a minor. In that time the claim either needs to be settled or court proceedings need to be issued or you will become statute barred from bringing a claim. If one is not ready to seetle at the 3 year anniversary of the accident then issue court proceedings to protect your position and then ask the court for a stay.
Though the accident was not my fault, I was counter-sued for contributory negligence because I wasn’t wearing a helmet…. There’s a lesson.
Was in an accident in london earlier this week.
Riding around a small/med roundabout – effectively going straight ahead. To do this i had to pass other exits/entrances. As i got to one of those, the previously stationary car pulled out and hit me, knocking me off the bike.
No series injuries – bruises and scrapes.
Bike and clothing not so good – rear wheel badly buckled and crank bent. Bike obviously off the road which is very fraustrating.
Would like to get some advice from Dave Escandell if possible.
I was riding on a pavement because the road was busy. I had my hands over the brakes and riding slowly. As I approached a junction I saw a driver parked up waiting to emerge he was looking around but failed to see me and collided into me. His front bumper collided into me hitting my right leg and knocking me off my bicycle. I had to shout and physically hit my hand on the bonnet to gain his attention. He failed to stop and drove off. I hurt my lower leg as it was bruised and had back pains from falling off my bike. The defendent is denying all responsibility and says that he gave me way and nothing happened. The claim will probably have to go to court. Who is at fault here?
I was knocked off my bike by a van coming from a side road. he admitted that he had not cleared his windscreen properly, gave me his name, address and postcode and I have an excellent description of him. He has since denied being involved in the accident, what are my chances of winning a claim against him.