You can't sue a squirrel

But you can claim for harm caused by motorists banging into you. Author RICHARD PEACE, a lawyer in a former life, explains what to do when you need to make or defend a claim and how to stand up to lawyers who try to pin 'contributory negligence' on cyclists...
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The term cycling accident can cover anything from scratched frames to a fatality. Although cycling is far less dangerous than many non-cyclists suppose, if you and your bike are unlucky enough to be involved in an 'accident', a huge number of questions are going to arise: What essential info should be gathered in the aftermath? Can I make a claim or will I have to defend one? How long is it all going to take? It's not only about getting the right advice after an accident though. For example, being insured, though not a legal requirement for cyclists, could well save you anguish and time in the event of an accident. Simple steps like making a sketch map of the accident scene or taking a picture of the pothole that caused your fall could be crucial in making a successful claim.

CIVIL OR CRIMINAL?

We are all aware of personal injury claims (civil claims) from advertisements and media reports. Sadly, the cycling press often carries reports of the often derisory sanctions handed out in criminal cases against drivers who have injured cyclists, but what are the fundamental differences between the two?

Civil claims are made mainly to compensate one party monetarily for physical injury suffered and/or damage to property when it's proved another party caused the injury or damage by negligence or breach of a statutory (i.e. legal) duty. Blame can be apportioned between the parties depending on the evidence, so you might find yourself 20 percent to blame and have your damages reduced accordingly. Lawyers, and in some cases the courts, ascertain who was negligent. The more complicated the facts and issues in your particular case, the longer proceedings are likely to take. The defendant's insurers may settle before any claim is launched in the courts or before a hearing. A big claim fought against insurers who really want to contest a case may progress over years and can go all the way to the High Court – and even then it might be appealed. Serious injuries may take time to settle leading to several interim payments and ongoing negotiations.

By contrast, criminal actions are tried in separate courts and are not actions between parties but involve the state taking action against individuals or organisations, to determine guilt and, where necessary, dispense punishment and deter others – typically through penalty points, fines or imprisonment. As countless films and TV dramas like to tell you, criminal cases must be proved 'beyond reasonable doubt'. In civil cases the burden of proof is much lower being 'on the balance of probability'. Criminal convictions relating to the same accident can be used as evidence in civil proceedings, going to prove liability, although you can launch a civil claim even if no criminal conviction was obtained. If the other party has breached the Highway Code this should also help your civil case greatly.

Potential claimants are often worried about the costs of the case. Most personal injury solicitors now operate on the basis of no-win no-fee – if you lose you pay nothing and if you win it is most likely that the other side (or most likely their insurers) will be ordered to pay your legal costs.

WHO TO CLAIM AGAINST

It's all very well having suffered injury or financial loss and having the evidence to claim, but is there a defendant that can practically be claimed against? Is the other party insured and, if not, will they have funds to pay you? There are some cases where there may be no defendant to sue. Claims against motorists, be they car, bus or lorry drivers are the most common for cyclists and usually the defendant will have the third-party insurance as required by law. However, should you be injured by an uninsured, or even an untraceable driver, don't despair. The government and insurance industry have established the Motorists Insurance Bureau to pay out in cases involving uninsured and/or untraceable drivers. Similarly if you were the victim of a crime whilst riding, for example if you were deliberately hit by a motorist (either directly or using his/her car) you should consider putting in a claim to the Criminal Injuries Compensation Authority.

For this to have a chance of succeeding you should report the incident to the police and start the action within two years of its occurrence. In both MIB and CICA cases it is vital you start your claim as soon as possible after the incident to avoid falling foul of both schemes' strict time guidelines. If you are injured in a collision with a pedestrian it's much less certain where any compensation money might come from. Where drivers' insurance or MIB / CICA schemes aren't relevant, you could look at the possibility of forcing the other party to claim on any home, travel or personal accident insurance they might have.

Of course you might be able to claim on your own insurance and try to claim this back from the other side later. If you think you have a claim against those responsible for the road or cycle lane/track condition or design you are likely to be on less certain and more complicated legal ground unless you have a truly open and shut case (and there aren't many of these).

Failure of the bike itself has also lead to so-called 'product liability' claims against manufacturers. A cyclist who believes a faulty bike caused his accident could look to take action in three ways. The most popular way to claim would be against the retailer under the Consumer Protection Act of 1987, should a bike part break or malfunction causing an accident (unfair though it may seem to many retailers). The act is designed to make it easy for consumers in EC member states to take action using their domestic law and for them to avoid the difficulties inherent in suing a manufacturer based in a foreign country. The retailer could always make a secondary claim to recover any losses from the manufacturer.

Claims could also be considered using contract or negligence law but these are likely only if there is a specific reason not to proceed under the Consumer Protection Act.

If you are injured whilst racing professionally (as opposed to being out on an organised club run) the burden of proof is likely to be much higher as you are deemed to have accepted a higher degree of risk than when you are simply out and about on the roads.

EACH CASE ON ITS FACTS

The more evidence you get the better, be it witnesses willing to testify or photographic evidence from the collision scene. The case summaries below demonstrate the huge variety of factors that determine whether a claim is successful.

The importance of standing up to insurers

In a case well-publicised by CTC, young Darren Coombs was seriously injured in car collision. The police refused to prosecute and the driver's insurers, Provident, threatened to counter-sue in the civil claim that was launched, alleging that Darren's minder and parents were at least partly responsible for allowing him out unsupervised and without a helmet. The judge found for Darren.

This tragic case shows the importance of several things; standing up to insurers who use pressure tactics, the importance of witnesses who can verify your version of events (here were two markedly differing witness accounts and the judge found the one who criticised the driver to be the more credible) and not being deterred by the lack of a police prosecution. CTC's Cyclists' Defence Fund was set up as a result of the case with the aim of funding cases where an important point of law needs clarifying in favour of cyclists.

Helmets and doors: contributory negligence?

Solicitors specialising in cycling cases stress how important it is to fight off frequent claims that cyclists have committed contributory negligence, as in Darren's case above. A couple more cases that show how what might be totally acceptable (and legal) behaviour to cyclists can be alleged to be blameworthy by defending insurers. In the first case former Aston Villa goalkeeper John Burridge was knocked off his cycle in Oman where he was coaching the Omani national football team. Cycling down the hard shoulder of a busy, multi-lane highway (as allowed in Oman) he was hit by a minibus door being opened. He seriously injured. The case was tried and appealed in the UK and set an encouraging precedent for cyclists here. When appealed it was already established the accident was mainly the minibus driver's fault but it was submitted John was contributarily negligent in not having forseen the door opening and should have manoeuvred into a lane of busy, fast-moving traffic or even stopped behind the minibus!

Happily for cyclists, the judge wasn't impressed by this argument and felt it "comes close to saying that…….cyclists who drive into an unexpectedly opening car door will in part be to blame for the accident."

Even more happily for John he was 100 percent in the clear (as most cyclists would surely have thought anyway) and the defendant was totally to blame.

Helmets rear their ugly head once more in another case of 'contrib' alleged against a cyclist. Walsall cyclist Alan Millett suffered head injuries and a broken collar bone after being hit by a car. NIG insurers admitted their driver was primarily responsible but wanted to reduce the damages of £130,000 by 15 percent as Alan was not wearing a helmet. NIG were bombarded with complaints from cyclists and in the end Alan received the full amount. There is simply no legal authority for insurers to say you should have been wearing a helmet. Defendants have raised it as an issue but have always backed down. Of course there is always the possibility that such decisions could be appealed against in a higher court.

Cycle lanes, road condition and accidents: a tricky one

Those who park in cycle lanes and so cause accidents to cyclists may be negligent; damages were awarded against a van driver who caused injury to a cyclist in this way. The driver was judged to have put the cyclist at risk and to have disobeyed road traffic orders.

Suing the relevant highway authority (usually a local council) because you've fallen off after hitting a pothole is not as straightforward as it might seem. Liability isn't automatic even if the highway authority acknowledge your version of events. Whilst they have a statutory duty to maintain the highway they also have a statutory defence to 'pothole' type claims if they can show they have taken all reasonable care to maintain the highway up to the standard necessary to accommodate the ordinary traffic which passes along it! This includes having a proven system of checking for defects suitably frequently.

You'll also have to prove the actual condition of the highway was dangerous to traffic and that the type of accident you are involved in was foreseeable. Photographic evidence is important in such claims. Racing cyclist David Farrer won damages against North Yorkshire County Council by taking a photo of the pothole on the day the accident happened and by getting several witnesses he was with to take note of it. The council maintained the pothole couldn't have existed due to earlier repair works but David's evidence won the day. The case highlights the important points with such photographic evidence; place coins or a drinks can next to the pothole to establish its size and take some of the pothole in its surroundings so its location is clear. Try to measure how deep, long and wide it is as these could be important factors in establishing fault.

Peter Searle sustained injuries when he was thrown from his bicycle when cycling home from work in a cycle lane. He hit an unlit plinth which projected into the cycle path. The bollard, usually on top of the plinth, had been removed and not replaced. This was a case of an actual obstruction to a cycle lane. Much more problematic is the case where you think the actual design of a cycle lane, cycle track or highway might have been a contributing factor to your accident. I failed to find a single successful case in my research of a successful cyclist's claim on this basis. In some cases local authorities have removed or improved cycle lanes involved in accidents but have not yet been sued over the actual design (as opposed to the condition) of the lane.

No one to sue?

If you fall off your bike simply by riding inappropriately, it seems perfectly logical you can't sue anyone. However, there may be situations where a crash is not your fault yet there's no one to sue. You'll likely be in the same situation if a gust blows you off your bike. One cyclist sustained damage after collision with a squirrel. As wild animals, squirrels are outside the scope of the law...

Farm animals are a different matter; a farmer was found liable when his geese strayed onto the public highway and caused an accident.

Appoint a specialist

Penny Scott Francis was involved in a cautionary tale on the importance of getting a specialist solicitor. Penny needed several operations and physiotherapy after being run over by a lorry. Initially two firms of solicitors advised her she didn't have a case (one even suggesting was lucky not to be charged herself with a criminal offence). A witness who claimed the accident was Penny's fault was discredited as it was proved they only saw a partial version of events and Penny was awarded £35,000 in compensation. Too often firms that have no connection with cycling make assumptions about the cyclist. Penny herself reiterates the importance of cyclists considering their insurance position whilst cycling: "As a motorist I would not dream of going on the road without insurance but it never crossed my mind that I should have cover as a cyclist. That I could have been sued myself never occurred to me."

DON'T PANIC

If you have had an accident there are a number of things that you can do in the aftermath to help you prove liability and maximise your claim: Obtain as much information as possible from the other party including name, address and phone number. If you're in collision with a motor vehicle get the registration number and note the make and model of the vehicle. Try to obtain driving licence and insurance details. Try to make a note of the names, addresses and phone numbers of witnesses but do not try to take any statements from them as this should be left to your solicitor.

Call the police and attempt to ensure that the other person involved in the accident remains at the scene. If practical, leave your cycle in the same position as it came to rest after the accident and don't clear up any broken glass. Before the police leave the accident, write down the accident report number and the collar numbers of any attending police officers. It's a common misconception that you are obliged to report to the police a traffic accident involving injury. In more minor cases the police may not attend, even if the incident is reported to them.

Make notes about the circumstances of the accident and draw a detailed plan using arrows to show the position and direction of all vehicles involved. Note the street names, weather conditions, date and time of the incident. If you have suffered any physical injury (even if only minor) consult your GP or visit your local hospital to get your injuries assessed. Photograph visible injuries. Property damage claims need to be proved so keep damaged clothing and bike parts. Get a written assessment of the damaged items.

Any court action must be lodged within three years of the date of the incident.

CONTACTS

CTC Legal Helpline (members' service): 0870 8730069

CTC Cycling Personal Accident Policy (via Butterworth Insurance): 0870 8730067

Solicitors specialising in cycling related cases:

Bikeline: 0151 3484400 http://www.bikeline.co.uk

Leigh, Day & Co.: 020 76501200 http://www.leighday.co.uk

Russell, Jones & Walker: 020 78372808 http://www.rjw.co.uk

Note for Scottish readers: Road Traffic Legislation applies to Scotland as in England and Wales. Separate case law applies in civil cases so you may need to go through Scottish courts and get a Scottish lawyer. For personal injury specialists call the Scottish Law Society on 0131 2267411 or see http://www.lawscot.org.uk

Thanks to Alison France of Bikeline, Sue Bence of Leigh, Day & Co. and Paul Kitson of Russell, Jones & Walker for their help in producing this article. A shorter version of this article was published in Cycle, the CTC magazine.

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