What to do in case of an accident

1. About this guide
2. What to do before an accident
3. At the scene of an accident
4. After an accident
5. Useful contacts

1. About this guide

The aim of this guide is to educate cyclists about what to do in an accident. I am an experienced solicitor, working for BL Claims in London. I specialise in recovering damages for injured cyclists and you can read my blog on cycle law here: http://www.thecyclingsolicitor.com. Feel free to contact me at ojeffcott@gmail.com with any cycling related queries.

The guide only refers to the laws of England and Wales. Any other jurisdiction will have different laws in place. The guide is accurate as of 9 August 2016.

2. What to do before an accident

Know your route, so if you have to call an ambulance or the police you can tell them where you are.

Program someone into your phone as your “ICE” person (in case of emergency) so if you are unconscious, the emergency services can look in your phone for a person to contact. For instance, on iPhones you can add details in the 'Health' app under Medical ID which is accessible when the phone is locked.

3. At the scene of an accident

Move to a safe position.

Call the police and an ambulance:

-if you are injured;
-if you think you may be in shock; or
-if you think the other party involved is giving you false contact details.

When the police arrive, co-operate. Stay calm and make sure you give them your side of the story. Take down the name of the officer and ask for the police case reference number. This officer may be responsible for investigating your case so it is a good idea to keep them on your side.

Even if you have a minor injury, go to hospital or your GP as soon as possible. Tell the doctor they should take detailed notes.

Take pictures of your injuries at their worst to show their full extent. Also take photos of any damage to your property e.g. bike, clothing, etc.

Get the contact details of any witnesses to the accident - the more the better. Do not leave this to the police. Do not give your only copy of the witness details over to the police but do give them a copy of the information. The courts rely heavily on witness statements.

Beware of accepting money from the other person in the accident as that may be seen as settling the case.

If you are badly injured, do not be scared to ask for help from bystanders with the above (i.e. getting witness information, registration details, taking photos, etc). You may be surprised at how helpful people are willing to be if asked.

CCTV (Closed-Circuit Television)

This deserves a special mention, as it is vital to look for CCTV cameras.

Public CCTV - tell the police to call the local CCTV office to make sure any footage is preserved there and then. Do not let them wait as the footage may be crystal clear and in real-time if preserved immediately. Public CCTV is often saved with a continual degradation system i.e. as time goes by the resolution of the footage is reduced.

Private CCTV – this data may be deleted at any point. You or the police need to contact the business immediately to preserve the footage.

Cycle Camera footage

I have been asked about the benefits of cycle cameras a number of times recently. In short, they are admissible as evidence and I have acted for several cyclists where such footage has made the difference between a winning and losing case.

Accidents with a motorised vehicle

If you can only get one piece of information following the accident, make sure you get the driver’s vehicle registration - this is usually enough to trace the driver.

If possible, take the driver’s name, address, registration and insurance details. This will save waiting for the police to provide it, which can take a while.

Do not get into a discussion about whose fault the accident was.

Take photographs of the vehicles and their position in the road, along with any damage to your bike.

Accidents with pedestrians or other cyclists

If you are in an accident with a pedestrian or another cyclist, you should still take their name and address, get witness details and contact the police and/or hospital if you are injured.

However, from a practical point of view, it is very difficult to recover damages against pedestrians or cyclists as they are not normally insured against such incidents. If they have household insurance this can sometimes cover them, as does membership of cycling organisations such as Cycle UK / LCC / British Cycling. Alternatively, you can pursue someone for damages personally, although this is challenging and would only be worthwhile if they had sufficient money to justify it.

If the person causing the accident is acting in the course of their employment (e.g. a refuse collector, Deliveroo rider, etc) you may be able to take action against their employers direct.

Accident from a defect in the road

If you are in an accident caused by a pothole or other defect in the road, it is important to take photographs of the defect as it looked at the time of the accident. Put an item in the shot (a shoe or notebook, etc) that shows the size and depth of the defect. These photos are just in case the defect gets repaired before you have a chance to take proper photographs.

You still must then back to the scene as soon as possible to record the size of the defect and to take further photographs with the tape measure in shot so you can accurately show how deep and wide it is.

Cases for defects in the road are challenging. Even if you can show that the defect was a dangerous hazard, the highway authority need only show that they had a reasonable system of inspection in place to avoid blame. The frequency of inspections required will often be once every 3-6 months, depending on the type of road. If the highway authority can show that they inspected the road within that timescale then you would need to show that they missed the defect or that they should have been aware of the defect in any event, such as if people had complained about the defect since the inspection.

Hit and Run incidents

If a driver/motorcyclist does not stop at the scene of an incident, you may still be able to get compensation through the Motor Insurance Bureau (MIB). All motor insurance policies contribute to this fund which covers hit and run incidents and also incidents caused by uninsured drivers.

There are strict time limits for these claims, including having to report the incident to the Police within 5 days if you want to claim for damage to personal property. The time limits can be found here, along with details on how to apply for compensation:

http://www.mib.org.uk/Submit+a+Claim/en/Default.htm

4. After an accident

Police

If there is another road user at fault for your accident, it is important to involve the police and push for a prosecution if you can. It is easy to get disheartened and give up when the police are unhelpful or inactive in getting a driver convicted. Cycling accidents tend not to be treated as priorities by the police and by the public in general. By pushing for the highest punishments, we can help change the motorcentric attitude towards cyclists and raise awareness of the real frequency of these crimes.

When reporting the accident, it is useful to have a basic understanding of the difference between ‘criminal’ and ‘civil’ law, as explained below.

If you are self-reporting the incident as the police did not attend, and the incident occurred within the Met Police area, you can use the online tool https://beta.met.police.uk/report/report-a-road-traffic-incident/

Criminal Law vs Civil law

It is important to know the difference between criminal law and civil law. Criminal law is where the state punishes someone for breaking the law. It is dealt with by the police and cases are heard in the Magistrate’s Court, or the Crown Court where the case is more serious.

Civil law (in this context) is where the cyclist sues for a wrong committed against them by another road user. You can get compensation for your financial losses, including damage to your bike, and for the injuries you have suffered. The defendants will also be liable to pay some of your legal costs.

Civil law

If your bike or personal possessions are damaged, or you are injured following an accident, you have a few choices:

a) Do nothing

In general, cyclists tend to feel sheepish following an accident and many will hobble off without doing anything about it. If this is an informed decision then fine but, in my view, for cyclists to be treated like other road users they need to treat themselves in the same way. Also, adding yourself to the count for that year’s statistics will help future cyclists and cycle lobbyists fight for our rights.

b) Make a deal with the driver or insurers

If you make a deal with the other person, or their insurer, make sure you go in with your eyes open. There may be benefits, as the process will normally be quicker and you won't have any damages deducted for legal fees. If you accept payment from the defendant then this will probably be all you can get. In which case, even if your injuries persist longer than you thought, or you are entitled to more damages, you cannot go back and get more money.

c) Instruct a solicitor

Who to choose

If you go down this route, make sure the solicitor specialises in cycling cases and is a member of the Association of Personal Injury Lawyers (APIL). They will be very used to dealing with specific issues raised in cycling cases, such as replacing a damaged bicycle or when insurers contend that a cyclist should have been wearing a helmet or high-vis clothing.

Funding

If your case has at least a 50% chance of success (which is the case in the vast majority of cycling accidents), a solicitor should enter into a “no win no fee” arrangement. This means you will pay only if you win, in which case the majority of the costs will be covered by the other side. However, since the insurance industry successfully lobbied the government to pass the Legal Aid, Sentencing and Punishment of Offenders bill the full legal costs in a case are not recoverable from the insurer and a law firm will normally take a cut of up to 25% of your damages.

If you have legal expense insurance (e.g. through an insurance policy or LCC / Cycling UK / British Cycling membership), you may want to consider using this as they may have an agreement that a law firm will take smaller cut of the damages. However, you are always free to select the solicitor who you want to instruct.

Please Note: the insurance industry has again lobbied the government to make the law less favourable to victims of injury. It now looks likely that cases will fall into the small claims track where the injury (not including financial losses) is worth under £5,000. This is the vast majority of cases. This will mean that no legal costs are recoverable from the defendant aside from court fees. What this will mean in practice is not yet clear. Also, whiplash cases will no longer be actionable to the same extent, although the parameters of this (including whether it will have an impact on cyclists) are also currently unknown. It is expected that both these changes will be implemented by the end of 2017 and I will update the guide when there is clarity on the issues.

Your case

You have three years from the date of the accident (or your 21st birthday if you are under 18 at the time of the accident) to issue the case in the court otherwise your case will be time barred.

Keep records / receipts for any money you spend as a result of the accident e.g. paracetamol; bike repairs; replacing your helmet / clothing / lights / etc; travel costs for taking public transport instead of cycling.

If you instruct a solicitor they should do the majority of the work that needs to be done to get you compensation. This process can take time – usually anywhere between 6 months and 2 years.

The steps involved will vary, depending on the case, but in general a solicitor will do the following:

• Notify the driver of the accident and, if necessary, write to the police to request a copy of the collision investigation report.-

• Instruct an independent medical expert to meet with you and report on the extent of your injuries and how long they will last.

• Once the medical evidence has been finalised, and the driver has admitted liability, the claim should be ready to settle. It may take some time to get to this stage, depending on the complexity of the case and how serious your injuries are.

• Where the driver does not admit liability, or the insurers undervalue the case, it may be necessary to issue court proceedings to encourage settlement. However, only around 1% of cases actually go to trial.

5. Useful contacts

Road Peace
http://www.roadpeace.org
A non-profit organisation that help support people following bereavement or serious injury as the result of a road traffic incident.

Independent Police Complaints Commission
http://www.ipcc.gov.uk
For complaints about the police.

Transport for London
http://www.tfl.gov.uk
Contact TFL if you have a complaint about a bus.

Public Carriage Office
https://tfl.gov.uk/forms/12396.aspx
Contact the Public Carriage Office at TFL if you have a complaint about a black cab.

Fill That Hole
http://www.fillthathole.org.uk/
Use this site to report potholes and road defects and to check if other complaints have been made.

Other
If the other party is driving a company vehicle, complain to that company. They will often be receptive to complaints.