By Eoin P. Campbell, LL.B., Solicitor
Apart from pedestrians crossing the road, cyclists are perhaps more vulnerable than any other type of road user. A bicycle affords little protection to cyclists, who more often than not have only a helmet to protect themselves. Moreover, they are also often not seen by drivers until it is too late and therefore hit by vehicles at higher speeds. Bicycle accident claims are like any other type of road accident: if you have sustained an injury and feel that it was caused by the fault of another party, you may have a claim for personal injury compensation.
Physical Injuries from Bicycle Accidents
The first factor to note when pursuing a bicycle accident injury claim is that it is in fact just that: an injury claim. The plaintiff (the person making the claim) must have sustained some form of injury either physical or psychological as a result of his/her bicycle accident. Even where a driver 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 normally sufficient to justify compensation being awarded in personal injury claims. However, in the case of bicycle accidents, a near miss by a vehicle might have resulted in a cyclist falling off a bicycle and sustaining an injury.
If you have not sustained a personal injury as a result of your cycling accident, you are, of course, still entitled to attempt to recover the costs of personal property (the bicycle) that may have been damaged or destroyed. The same principles apply: the physical damage must have in fact occurred.
Negligence of the Vehicle Driver
The second factor to note is that the injury sustained must result from the negligence of the driver (or in perhaps in the case of a ‘pothole’, the road authority) who had a duty of care towards you and the other road users at the time of the accident. If the defendant can prove that he was not driving in a negligent fashion at the time of the accident, however, the claim will fail.
Bicycle Accident Liability
The cause of a bicycle accident is not always obvious. In many situations, one party may be completely to blame. However, it is also true that more than one, or several, factors may have contributed to the bicycle accident. Moreover, one of the causal factors may have, in fact, been the negligence of the injured party (the cyclist). For example, perhaps the cyclist rode out onto the road without looking, failed to wear a helmet, or was perhaps cycling at night without lights. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own downfall? You need to talk to your solicitor about these issues because there might be contributory negligence.
Contributory Negligence in Bicycle Accidents
It may also be decided by the court, or indeed agreed between the parties, that both the defendant and the plaintiff were partially at fault for the plaintiff’s injury and in such circumstance the principle of contributory negligence applies.
Contributory negligence is the legal principle that an injured party, the plaintiff, may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant, the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded. In the case of a bicycle accident that resulted in head injuries, it might be decided that the plaintiff bore 25% of the responsibility for his or her injuries because the plaintiff was not wearing a protective helmet or reflective armbands, whereas the defendant was responsible to a degree of 75% because of the driving speed. Therefore plaintiff’s compensation amount will be reduced by 25%
Negligence without an injury, or alternatively an injury without negligence, are not sufficient to pursue a successful bicycle accident compensation claim.
What To Do After A Bicycle Accident
Your Health and Safety
As obvious as it may seem, it should always be remembered that your health and safety is the most important consideration. If, for example, you have been knocked down by a vehicle, your well-being is far more important than any potential claim that you may have. If you or indeed anyone else has been seriously hurt an ambulance (together with the Gardaí) should be called immediately.
Go to Accident & Emergency
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 Accident & Emergency 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 always still advisable that you see a doctor. Whiplash symptoms (a common injury for a cyclist who has been struck by a vehicle) can be experienced immediately following impact but more 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 the Garda Síochána
Following any type of bicycle accident with injuries, it is essential that you report the matter to the Gardaí. 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.
Follow the Standard Road Traffic Accident Formalities
As most people are no doubt aware it is very important to obtain the name, address and insurance details from the relevant driver following an accident. This is, however, not always possible because you (or indeed the driver) may be very seriously injured following the collision. What one should do, however, in all circumstances is, if possible, note the registration number of the vehicle even when the other party has appeared to be co-operative. 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 party is as honest as you! The identity and insurance details of the other party can usually be later verified from the registration number.
What Happens in Hit and Run Accidents
It is not always possible to obtain details of the other driver at the scene of a road traffic 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. 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 involved 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), an organization that was set up 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
Take Photographs
In modern Ireland it is fair to say that most of us own a mobile phone, which should obviously be used immediately following an accident to contact the Police/Gardaí and, if necessary, an ambulance. We should also utilise the camera and/or video function present on most modern cell phones to record images of the vehicle and the bicycle involved (showing damage to the car and bike if applicable and its 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 vehicle can also be recorded in this way.
Bicycle Accident Claim Valuation
Claim valuation is one of the most common questions asked by clients of their solicitors in relation to cycling accidents and, indeed, all road traffic type personal injury claims.
The short answer is that in the early stage of the preparation of any personal injury litigation case there is absolutely no way of knowing the answer to this question.
Experienced as he or she may be in litigation cases of this nature, it is worth reminding oneself that the solicitor is not a medical doctor. He or she is the first to recognise this fact and will only begin to consider the potential settlement value of the case when medical evidence in the form of your medical records and possibly written reports from your general practitioner (or perhaps specially commissioned reports from a consultant) have been obtained. In fact, it would be rather unprofessional of your solicitor to estimate a valuation of the case’s settlement value in the absence of medical evidence.
How Claim Valuations are Decided
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 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).
Settling Directly with an Insurance Company
I would advise those who have sustained a personal injury as the result of the fault of another in a cycling accident to consider the above very carefully after an accident has occurred. Increasingly, clients are reporting that they have been contacted directly by the third party’s 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.
It is important to note that each case is unique. If you have recently been involved in a bicycle accident in which you have sustained an injury 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.
Summary
- Although cyclists are one of the most vulnerable groups of road users, bicycle accident claims for compensation are treated in exactly the same way as other road traffic accidents.
- Therefore, it has to be established in bicycle accident claims that the cyclist has sustained an injury due to the negligence of somebody else.
- The formalities that have to be completed to satisfy the requirements of bicycle accident claims are the same as any other type of road traffic accident.
- This means that bicycle accident claims for compensation have to be submitted to the Injuries Board with a copy of your medical notes and the entry in the Garda accident report book, if relevant.
- The value of bicycle injury claims is determined by many factors including the severity of your injuries, how long they may take to heal and what impact the accident has on other areas of your life.
- This is why it is important that you do not deal with an insurance company about bicycle injury claims. Rather, speak with a solicitor on our free advice service to ensure you receive the full award of compensation you are entitled to.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.