Passengers in Car Accidents

By Eoin P. Campbell, LL.B., Solicitor

Passengers can seek personal injury compensation if they have suffered an injury due to the fault of another whilst travelling as a passenger in a private or company car, train, bus, taxi or on a motorcycle. Passengers are generally recognised as being innocent victims in a crash. They are entitled to make a personal injury claim even if they were travelling in the vehicle that was at fault for the accident as they were, obviously, not in control of the vehicle. Therefore, passengers who have been involved in accidents are legally in a very strong position. Unless as a passenger the claimant has somehow contributed to the accident (such circumstances are rare and would be rather unusual) he or she will be regarded as an innocent party. Damages can therefore normally be recovered without any liability issues being raised.

Often it will be the case that the subject accident was completely the fault of another driver and not the driver of the vehicle in which you were travelling. In such circumstances, a claim can be made by the passenger(s) (and indeed the driver of the vehicle in which the passenger was travelling) against the driver of the other vehicle involved. If another party was not at fault, however, it should be remembered that the driver of the vehicle in which the claimant was travelling owes his or her passengers a duty of care. Therefore, if he was driving in a negligent fashion which caused injury to his passenger(s) a claim can be made against him.

In order to pursue a claim against the driver, he or she must have been at least partly to blame for the car accident. Many passengers are hesitant to make a personal injury claim as a friend or family member may have been partly or totally at fault for the car accident. It is very important to remember, however, that while the driver concerned might lose their no claims bonus after they themselves make a claim to their insurance company, your personal injury claim will not cost them anything personally. Similarly, it should also be noted that the compensation payment that you are awarded for your injuries and any legal costs involved will be paid not by the individual but by his or her insurance company.

Real Physical Injuries

The first thing to be remembered when pursuing any personal injury claim, be it an accident claim or otherwise, is that it is in fact just that: a personal injury claim. The plaintiff must have sustained some form of injury either physical or psychological as a result of the accident. Even where one or either driver involved has indeed acted negligently, even criminally so, one should note that with regard to the civil law, a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proved to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.

If you have not sustained a personal injury as a result of your accident, you are, of course, still entitled to attempt to recover the costs of personal property (e.g. eye glasses, luggage etc.) that may have been damaged or destroyed. The same principles apply i.e. the damage must have in fact occurred.

What Passengers in Road Traffic Accidents Should Do

Health and Safety

As obvious as it may seem, it should always be remembered that health and safety is the most important consideration. If, for example, you have been hurt in a motoring accident, your well-being is far more important than any potential injury compensation claim that you may have. You should always immediately call an ambulance (together with the Gardaí) if you have been injured, and even if you only suspect that you have been injured (some injuries are not immediately obvious or are hidden by shock).

Go to the Casualty Department of the Nearest Hospital

Following an accident (be it a road traffic incident, an accident at work or otherwise) it is of the utmost importance that you report to the casualty department of the nearest hospital, or, at the very least, make an emergency appointment with your general practitioner. Even if immediately following the accident you feel that your injuries are not particularly serious it is still advisable that you see a doctor. Whiplash Symptoms (a common injury following any motoring accident) can be experienced immediately following impact but often do not commence to develop for a number of hours after the accident and then may worsen during the next 24 to 48 hours. Never underestimate peace of mind. The reality is that monetary compensation is no substitute for your health and well-being and, as any solicitor who specializes in personal injury litigation can tell you, a common remark from clients is that they would exchange the compensation money in order to revert to their prior health and fitness ‘in a heartbeat’.

It should be noted further that your attendance at hospital or with your local doctor will be recorded in your medical records which may later be used in evidence to support your claim.

Call 999 or 112 and Report the Accident

Following a road traffic accident, it is essential that the incident is reported to the Gardaí. Obviously, the drivers of the vehicles involved bear a greater responsibility than any passengers to report the matter. It is still advisable for the passenger to do so (or at the very least be sure that the drivers have done so) as the report of the accident will be noted by the Gardaí and may be referred to later by your solicitors to support your personal injury claim. If there are no obvious injuries at the time, the Gardaí may well indicate that they will not be attending the scene.

As one would expect, should the accident have been of a more serious nature and an ambulance has been called, the Gardaí will attend and take statements from the various parties and witnesses (if any) and make a sketch of the accident scene. The Gardaí investigation may result in a referral to The Office of the Director of Public Prosecutions (DPP) for prosecution.

If, as is often the case, the Gardaí do not attend the accident scene it is advisable to visit your nearest Garda station at the earliest opportunity to request that they take details of the accident i.e. names, insurance details and registration numbers of the driver and pedestrian and the date, time and location of the accident itself. Each Garda station keeps a road traffic accident report book precisely for this purpose.

Car Accident Formalities

As most people are no doubt aware, it is very important for drivers to exchange names, addresses and insurance details with the other driver following an accident. Passengers should, however, be advised to obtain these details for each of the drivers involved. This is, of course, not always possible as one or all parties may be very seriously injured or perhaps aggressive and confrontational following the collision. What one should do, however, in all circumstances, is note the registration number of all vehicles (even when the drivers have appeared to be co-operative as the details given may be erroneous either due to confusion and shock following what is always a frightening experience or perhaps due to deliberate malice; do not assume that the other parties are as honest as you!). The identity and insurance details of the drivers involved can usually be later verified from the registration number.

Hit and Run Accidents

It is not always possible to obtain details of the other driver at the scene of an accident. Of course, when serious injury occurs, this will undoubtedly take precedence over the exchange of names addresses and insurance details. If you have been unfortunate enough to have been involved in an accident such as this, please note that your solicitor can still pursue a claim on your behalf (and indeed on behalf of the driver with whom you were travelling). Should the Gardaí have attended the scene of the accident your solicitor can very simply request and pay a small fee for the details of the other driver and a copy of the relevant Gardaí report.

Alternatively, one may well have been a victim of a ‘hit and run’ incident or have later discovered that the driver of the other vehicle was uninsured at the time of the accident. In such circumstances, please note that your Solicitor can submit the matter to the Motor Insurers Bureau of Ireland (MIBI), a body which exists to protect the victims of road traffic accidents when the party at fault is untraced or uninsured. The MIBI can act as the ‘insurer’ of the unknown or untraced driver and can, if appropriate, make a compensation payment to the victim

Use a Digital Camera

In modern Ireland it is fair to say that most of us own a mobile phone, which should obviously be used immediately following a motorcycle accident to contact the Police/Gardaí and, if necessary, an ambulance. One should also utilise the camera and/or video function present on most modern cell phones to record images of the vehicles (showing damage to the cars and their road positioning) following the accident. Furthermore, it may also be useful to your claim if the pictures can give an accurate impression of the weather and road conditions. Obviously the licence plate number of the vehicles can also be recorded in this way.

Determining the Amount of Compensation

It is important to remember that (assuming liability is not in question) the ‘value’ of any personal injury case is assessed by looking at the severity of the injury to the plaintiff and how same will affect their working, family, recreational and personal lives in the short, medium and long terms.

Some injuries (and whiplash type injuries in particular) may take some time to fully manifest themselves and it maybe some months or even years before your doctors can provide an accurate prognosis of the expected recovery period or diagnose a long-term condition. Moreover your claim may well include an aspect of “special damages” such as loss of earnings (including potential loss of future earnings).

Should Passengers in Accidents Deal Directly with an Insurance Company?

I would advise those who have sustained a personal injury as a passenger in a road traffic accident to consider the above very carefully after an accident has occurred. Increasingly, clients are reporting that they have been contacted directly by the relevant insurance company with offers of settlement in the weeks or even days following the incident.

The temptation to accept an early offer of settlement is strong; the immediate offer of money with minimum hassle and fuss, particularly in the current economic climate, often seems too good to refuse. There is, however, no way of knowing how much the claim is potentially worth at such an early stage and the risk is that the plaintiff may settle their claim for a figure that falls short of its potential value. It is worth asking yourself the question ‘Why would the insurance company offer to settle the case at such an early stage?’.The response is quite logical; to save costs. The liable party will normally be responsible for not only the compensation payment but also for both sets of legal costs and for the costs of procuring specialist medical reports.

Summary

• Passengers in car accidents can claim compensation if they are travelling as a passenger in a private or company car, train, bus, taxi or motorcycle.
• Passengers in car accidents can also claim compensation if they are injured while travelling in the vehicle of the negligent driver unless they were in some way to blame for causing the car accident.
• The criteria for passengers in car accidents claiming compensation for their injuries is the same as in any other road traffic accident – they must have been injured due to driver negligence.
• The treatment of injuries sustained by passengers in car accidents takes precedence over claims for personal injury compensation and you should seek medical attention immediately after your collision.
• Passengers in car accidents should try to obtain the details of other drivers or witnesses to the incident and report them to the Gardai.
• Thereafter, passengers in car accidents should seek professional legal advice from the solicitors on our free advice service about making a personal injury claim for compensation.

It is important to note that each case is unique. If you have recently been a passenger involved in an accident and feel that you have a potential personal injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.

About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.