What happens if it is not clear who is responsible for the accident?
In order to make a compensation claim, it is necessary to establish that another person is legally responsible your injuries. "Liability" is the legal term used to describe fault.
Often, it is clear who is liable for an accident. For example, when a car driver who is impaired by alcohol swerves into the cycle lane, it should be straightforward to show that the driver was at fault.
Other times, the situation may not be clear cut. Liability may be uncertain where an unknown person caused the accident, for example where a negligent driver flees the scene. Or there could be a situation where more than one person is to blame, for example, where the cyclist also behaved irresponsibly or did something that contributed to his or her own injuries.
Liability where the identity of the other party is unknown
It may be possible to bring a claim for compensation even if the other party cannot be identified, for example a hit-and-run accident. The way in which your claim is handled may be different to normal, however.
A personal injury solicitor will work with the police to identify the person responsible where possible. If the driver is found and they have a valid insurance policy, then a personal injury claim may be made as usual against the driver's insurance company.
If the negligent party cannot be traced, then it may be possible to make a claim to the Motor Insurers' Bureau. The MIB exists to compensate innocent members of the public who have been injured by untraced or uninsured drivers.
Liability where you are partly to blame for the accident
A number of factors contribute to road safety and sometimes a cyclist may do something or neglect to do something that increases the accident risk. For example, a cyclist may take their eyes off the road to adjust their fitness tracker, or be distracted by music playing through their headphones.
"Contributory negligence" is the legal term used to describe partial fault. Where there is evidence of contributory negligence:
- The other party may find it easier to dispute liability; and/or
- It can reduce the amount of compensation awarded to the Claimant.
Proving liability where there is contributory negligence
Liability may be more difficult to prove whenever there is contributory negligence since it is less clear who caused the accident. The less clear the liability, the more likely that the Defendant and their insurance company will oppose any settlement and deny the claim.
Where contributory negligence is a factor, it is especially important to seek expert legal advice. A solicitor can examine the evidence and determine whether it is likely to be accepted by the Court. If liability cannot be proven, then a solicitor may advise you to close the claim.
Contributory negligence and the compensation award
More usually, it will be possible to establish that the Defendant was legally liable, but that the Claimant was also partially responsible for the accident.
For example, a driver who was driving too fast for the road conditions usually will be found negligent if he hit a cyclist. But if the cyclist did not check the traffic before pulling out at a junction, the cyclist will usually be found to have contributed to the accident.
The proportion of liability will depend on how fast the driver was going and how much time was available to him to avoid the cyclist.
Where contributory negligence exists, the Court will determine the percentage by which each party was responsible for the accident. In the above scenario, the Court may decide that the driver was 60% to blame for the collision, and the cyclist was 40% responsible.
The compensation would be calculated on the basis that the driver was 100% liable for the accident. But the Claimant would only receive 60% of the compensation to reflect his own contributory negligence.
Contributory negligence also applies where a Claimant did not take steps to avoid injury, even if they did not contribute to the event that caused the injury. This might occur where a cyclist failed to wear a helmet.