What cyclists need to know about suing for injury compensation
Cyclists who are injured by third parties while out riding have a high success rate in suing for compensation, even if the culprit can't be found, says an accredited personal injury law specialist.
Dimitri Valis, principal at Law Partners, says that while a number of high-profile criminal law cases – such as the Queensland truck driver who escaped charges in 2013 after hitting and killing cyclist Richard Pollett – may have left cyclists with the impression that suing a driver is a lost cause, when it comes to civil law, the cyclist has a much higher chance of successfully suing.
“We find that the cyclist is successful because in our line of work, we're suing the driver for negligence,” Valis says.
He said that while criminal matters needed to prove negligence beyond reasonable doubt, civil cases focused more on the balance of probability.
“So the mere fact that the driver has struck a bicycle tends to suggest that there's some negligence there; that they weren't keeping a proper lookout.”
“The burden of proof is lower than a criminal matter; we just need to prove negligence, even a minor act of negligence would suffice,” Valis says, adding such minor acts would include carelessness and not paying attention to the road.
He said cyclists who have been hit by a vehicle and injured can also receive compensation even if the driver at fault cannot be identified. This is because a small portion of each Compulsory Third Party (CTP) Green Slip goes into a fund to cover such circumstances.
The Motor Accidents Authority will nominate an insurance company – the Nominal Defendant – to compensate the injured cyclist, with no penalty imposed on their insurance policy. However, there is a process that must be undertaken for the cyclist to be successful.
“We just have to go through the process of putting ads in the local paper, distributing flyers and doing various things to try and find the identity of the people,” says Valis. “If we can't, then that's fine; if the cyclist tried their reasonable best to find the identity of the car at fault, and the insurer accepts that explanation, which generally they do, they can proceed with a claim without any penalty whatsoever.”
So what should a cyclist do if they find themselves injured in an accident with a third party?
1. If possible, exchange details with the other people involved, regardless of who you may think is at fault. If the crash or incident is serious, you may also want to think about getting the details of any witnesses.
2. Take photos. Take pictures of the scene to record the detail of what happened. Look for things like where the bike and the vehicle ended up after a collision.
3. Keep records. You may also want to make notes of the incident, including time and date, as well as any related information as well as subsequent developments, such as ongoing medical treatment or repairs.
4. Contact the police. If you have sustained an injury from an incident report it to the police. In most cases, in order to lodge a claim there must be a police report of the incident.
5. Seek medical advice/attention to identify any injuries and prevent further damage or injury being done. It is best to do this soon after the incident rather than wait.
6. Get your bike checked out. You will need to get an assessment of the damage done to your bike and have documentation, such as quotes on the cost to replace or fix the damage.
7. Get advice from a personal injury lawyer. They can give you advice on whether you may be entitled to make a claim or if you have a legal case.
Tip: Valis says it's generally best for cyclists who have been hit to keep communication with the driver to a minimum.
“Don't admit fault to the other party,” he says. “Obviously if the police ask a question then you have to answer the question – but, just to the other party, keep communication to a minimum and that's just exchanging particulars and taking photographs immediately.”