Current insurance industry lobbying could severely compromise or even remove any right of redress which an injured cyclist currently has against a negligent road user or highway authority.
On the 16th November the Government announced proposals to increase the small claims limit for personal injury claims from £1,000 to £5,000. According to Cycling UK, around 70 per cent of cyclists’ compensation claims are under the £5000 threshold, examples of which can be found later in this article.
Historically, the Courts have used compensation as the means to put the injured person back in the position in which they would have been had the injury not been sustained.
What that meant is that the victim would receive an award for the actual injury, a second amount for other losses which followed on, most commonly cycle, clothing and kit, loss of earnings, and alternative travel.
Additionally, the insurers of the wrongdoer also had to pay ALL the victim’s legal, medical and court costs incurred in bringing the claim.
So the injured cyclist would be fully reimbursed for the earnings which they had lost when unable to work, the value of their bike and kit as at the time of the crash and compensation for their pain and suffering and inconvenience, without any deduction. In other words, the polluter paid, in full.
This isn’t the first restriction on cyclists’ access to justice
The first restrictions came about in April 2013, about the same time as the All Party Parliamentary Cycling Group were recognising the growth in cycling which had occurred and setting out their vision for the future.
These changes meant that a cyclist who was unfortunate enough to be injured would no longer receive compensation in full because the costs recoverable from the wrongdoer’s insurers were reduced. In other words, the victim had to contribute to the cost of winning out of their damages.
As one politician remarked in unsavoury terms: “claimants must have some skin in the game”. Clearly, the author of this remark had never found himself in a position where he was unable to pay his mortgage because he wasn’t working.
Not satisfied with those changes, the latest wave of proposals will see the victim to be deprived of the right to recover ANY contribution to their legal costs if the value of the injury claim (not the financial consequences, just the actual injury) is less than £5000.
What options does this leave an injured cyclist with?
In an interview on BBC Radio 4, Brett Dixon, Consultant Solicitor at Cycle SOS and Vice President of The Association of Personal Injury Lawyers (APIL) explained the options the proposed changes will leave an injured person with:
“Represent themselves and hope that they are treated fairly by everybody;
To pay for legal representation out of their damages;
Simply not proceed against someone who has negligently caused them an injury.”
Any cyclist deciding to pursue a claim under the new regime, would have to face the might of an insurer’s claims department without representation or would be left with a settlement that had been massively eroded through paying for representation.
Ultimately, whichever route is chosen, the system fails the victim.
How serious are the injuries that will be affected?
The £5000 limit could include all kinds of common and debilitating cycling injuries which could prevent a person from earning their living. For example:
- Fractured collarbone
- Fractured ribs
- A wrist fracture
- Hand injuries
- Thumb dislocation
- A sprain or ligamentous injury to the knee which recovers within a year and a wide variety of soft tissue injuries including lacerations
- Cuts, bruising or contusions which might affect a claimant for up to 12 months may not exceed the cut-off.
Irrespective of any loss of earnings resulting from an injury, the criteria which will be applied is the actual value of the injury (which may be lower than you think).
Paul Darlington, Consultant Solicitor at Cycle SOS, and cycling safety advocate of over 30 years explains “A cyclist who might confidently believe, in the event of an incident causing injury, that they would be properly compensated, can no longer assume it to be the case.
The blunt truth is that if as a result of an injury, a victim cannot work for weeks or months, their own well-being and that of their family will be prejudiced.”
Brett Dixon, went on to add “The changes proposed by the government are not just about whiplash. They go much further than that and will have an impact on cyclists who are injured through no fault of their own.
The government say this is necessary to prevent car insurance premiums rising and that motor insurers will pass on a saving of £40 per policy.
The last programme of reform in 2013 has seen insurers making an additional profit of half a billion pounds every year since then that has not been passed on in savings on premiums to the consumer.”
Personal Injury reported case law involving cyclists that would have their access to justice significantly reduced under the new legislation: