As you may have been involved in a road traffic accident, you could be entitled to claim compensation. At Harris Fowler we specialise in getting you the compensation you deserve. This page will set out the elements of a claim we will need to prove and some hints and tips to help your claim go smoothly.
In order to make a claim for compensation following a road traffic accident you have to prove three things
- That the other party owed you a duty of care
- That the other party fell below the standard of care expected of them
- That their failure to meet the standard of care caused you injury and/or loss
The First Part – Duty of care
For the most part this is the easiest part of a claim to establish as the courts have already established as early as 1832 that other road users such as car drivers, and HGV’s owe motorcyclists a duty to take reasonable care.
The Second Part – Breach of Duty
The second part of a claim is to show that the other party has failed to take such care as is reasonable in the circumstances either by doing something or failing to do something.
The courts when considering what should reasonably have been done they will first consider what an ordinary, skilful, average motorist should have done and then consider whether the other driver has fallen below that standard.
Breach of duty in motor biking accidents is often established by showing the other driver has failed to act reasonably, for example by not checking their mirrors before pulling out, or by pulling out of side road without checking the road is clear. Unfortunately due to Motorcyclists small size drivers often hit them even after looking.
An interesting situation for motorcyclists is that of filtering, the Highway Code and case law has shown filtering if performed at a reasonable speed is unlikely to amount to a breach of duty. However as I am sure you have guessed what will count as reasonable is different in each case, which is why it is important to seek the advice of a specialist personal injury lawyer who will be better able to advise you on the facts of your case.
Whilst it is normally the Claimant’s responsibility to prove each element of their claim, If the other driver has been convicted of a criminal offence, for example “Driving without due care and attention” because they failed to properly check their way was clear, then this reverses the burden of proof and the Defendant will instead have to prove that the offence for which they were convicted is not relevant as to whether they fell below the standard expected of them.
Hints and tips for early on
Because of the Claimant’s need to prove breach of duty it is often beneficial when involved in an accident to obtain and keep the following
- Pictures of the accident scene showing the vehicles after the accident
- Pictures showing the point of impact if the vehicles have been moved
- A picture of the other driver
- If a foreign vehicle both the rear and front registration numbers
- Details of the other driver including address and their insurance details
- (Please note the other party has a requirement to provide their insurance details due to S154 of The Road Traffic Act 1988) and if they refuse we would advise contacting the police as the other driver is committing an offence
If the other driver doesn’t have their insurance certificate to hand it is wise to check their details, this can be done from the roadside at www.askMID.com.
However as we appreciate motorcyclists often aren’t in the position to obtain such information due to the injuries they incur, we would suggest just remembering the name of one police officer who speaks to you following the accident as you will be able to ask them for any applicable details later on.
The Third Part – That breach caused loss
The third and final part of bringing a claim is demonstrating that the other driver is responsible for causing the injury and losses being claimed, whether this is personal injury or other financial losses such as loss of earnings.
With personal injury this would seem straight forward, another car hits you and knocks you off your motorbike, it would seem obvious that the accident is the cause of your injuries. But this becomes more complicated when before the accident you already had a pre-existing condition or had underlying problems which you may not have even known about. Because of these complexities the court relies upon the opinion of independent medical experts as to what caused the injuries and how long they are likely to last.
If you have been injured in an accident it is important to seek medical advice as soon as possible to ensure you are getting the appropriate treatment for your injuries. In addition, as the medical expert will likely have sight of your records of attendance they will act as evidence as to the nature and extent of your symptoms and will help support your claim.
Because the court will rely upon the opinion of the medical expert it is important that the expert is aware of any previous health issues or accidents. In addition, as the expert will need to comment on whether any financial losses such as treatment received or time off work is due to the accident, it is important that you also discuss these with the medical expert.
Once the medical expert has provided their opinion as to whether the loss (time off work/treatment etc.) is as a result of the accident we will then need to collect evidence to calculate what each head of loss may be and your highly qualified and experienced lawyer will advise what is needed in respect of each head of loss you are looking to claim.
The important thing to remember however is to keep receipts for any expenses you incur as it will help us prove the loss and recover the monies in respect of that loss. In addition keep hold of your damaged helmet and leathers as they may need to be inspected. As you may already know following an accident a helmet should always be replaced if it has made contact with any surface as the damage to the helmet’s integrity may not be visible.
As there is a lot to remember to do following an accident try and remember the following acronym
H = Helmet, keep it and any other damaged equipment
O = Obtain medical advice from your G.P. or walk in centre as soon as possible
P = Police log number or officer name, if they attend remember ones name to ask for later
S = Speak to the medical expert about all the ways the accident has affected you
“Harris Fowler are the only ones I would trust. They make everything clear, easy and always deliver total honesty – Thank you to all who worked on my claim.”