John here, blogging again.
I have written quite a lot recently about cycling and motorcycling accidents and the injury claims that I help my clients to bring. I thought it might be helpful to give a quick summary of how claims usually proceed.
For most cycling and motorcycling accident victims it is a new experience for them and so good advice and a helping hand from an experienced solicitor is important.
No two accidents and claims are entirely the same, but they do follow a common process.
The primary concern for any accident victim must be their treatment, rehabilitation, health and long term wellbeing. I am always keen to ensure that the treatment side of things is prioritised and that any claim works around that and not the other way round.
Assuming that things are being well progressed from a treatment point of view, then the next important part of any claim relates to “liability”.
Liability is basically the legal term for “fault”. We have a fault based legal compensation system in our jurisdiction of England and Wales. With my help, you need to be able to show that the person or party who we say caused the accident was at fault.
Assessment of the likely factors that could affect liability is an essential part of any good solicitor’s job. It is often quite clear from the outset what those factors are likely to be, such as excessive speed, poor adherence to road traffic laws, poor judgment, intoxication etc.
Much of this is common sense plus road traffic laws, the highway code, all mixed in with an experienced solicitor’s nose for what the issues are likely to be.
There can be various sources that are of help, such as police reports, witness evidence and increasingly dashcam or CCTV footage.
Judging and establishing the evidence to proceed with a “winner” or a strong claim is an important skill for me in my job.
Once liability issues have been considered carefully, a claim is raised by me for my client with the opponent pointing out why we say they are at fault. This opponent is usually the insurance company for the party at fault.
Even if the party at fault is not insured, then there can often still be a possibility of bringing a claim. That does present a complication and for this simple summary I will say no more, except that if you think that might be your situation, then please give me a free call on 0113 3571165.
The opponents then have the opportunity to investigate the claim and see what their view is on the issues of liability. They then must respond.
When the opponents respond there are basically three options for them:
- Admit liability
- Deny liability, but they must give the reasons for the denial
- Partially admit, but seek a “discount” for what they feel might be some partial fault of my client or another person
Liability arguments are fairly common in cycling and motorcycling claims and issues relating to it can carry on throughout a claim.
Even though cyclists and motorcyclists are classified as vulnerable road users, I have seen many attempts made to blame them. Cyclists and motorcyclists can be at fault of course, but in my experience they are very rarely solely to blame and they are usually blameless.
How much is the biking claim worth
After looking into liability the next questions to be looked at concern how the claim will be valued.
Even if an insurance company admits liability, they are still entitled to (and will) fight to pay you as little as possible. Here my job becomes to fight for every penny that you are justifiably entitled to.
The value of the claim is broadly made up of an amount paid for pain and suffering and an amount paid for any financial losses.
Financial losses are usually fairly straightforward and can relate to things like loss of earnings, cycling and motorcycling equipment and bike losses, medication costs, travel expenses etc.
I tend to go through quite a long list of potential financial losses with my clients and encourage them to keep proof of any losses, such as receipts, so that no evidence is lost.
Establishing the “value” of the pain and suffering part of the value of the claim means that we have to obtain medical evidence. Before we gather that evidence, I often have to address issues relating to rehabilitation, so see the part on that below.
Generally speaking, the more serious the injuries are that you have suffered, the more valuable this part of the claim will be.
Getting medical evidence to establish the value of this part of the claim involves obtaining all of your medical records and asking an independent doctor to examine you and read those records. The doctor will then prepare an expert report for the claim.
It might be that you have suffered multiple injuries and so several expert reports are needed.
Multiple and complex injuries are common for bikers and so I find that we often need multiple expert medical reports. Sometimes further investigations are needed, such as tests, MRI scans, X-rays etc.
The important point here is that if you settle the claim then that is generally a once and for all settlement. This means that you need to be really sure to understand how you are feeling and how you are going to be in the future. You can’t settle the claim and then seek to re-open it later because you haven’t anticipated a future complication.
Assuming that we get to a stage where we are happy that all medical conditions have been looked at thoroughly and addressed by the experts, then I can look in more detail at the likely sum in compensation that your injuries will attract.
This valuation process involves me looking at lots of previously decided cases and working out where your case and your injuries fit in.
Cyclists and motorcyclists often have complex injuries, perhaps involving shoulders, hips, legs, the head etc, because of their vulnerability on the roads.
This can mean that they need complex and expensive treatment, sometimes of a sort not readily available on the NHS, or at least not without a long wait.
It is often possible to persuade opponents to agree to fund treatment and rehabilitation and there is a specific Code that covers this, see:
Opponents are often happy and keen to help with rehabilitation and treatment. If you think of it from their point of view, the sooner you are made as well as possible the better. This might stop a long period of loss of earnings continuing and mean that the claim they pay out for is more modest.
From your point of view, as full and quick a recovery as possible is ideal too.
Settling the claim
Only a very small proportion of claims have to go anywhere near to a court or a trial. Most are settled between the opponents. Court and a trial are a last resort and I will not deal with them in this short summary.
Once I am happy that I have the best and strongest evidence on liability and the value of the claim for my client, then it can all be presented to the opponents and negotiations can begin over settling the claim.
This part of the claim has a real art to it and can take some time. There are many tactics that can be used and I am always keen to explain these to my clients and involve them fully in what we choose to do.
In the vast majority of claims a settlement is reached that my client is happy with and that represents a fair amount of compensation for their claim
If you have any questions then give me a free call on 0113 3571165.
Also, see my Top Tips.
Best wishes for now,