What To Do After A Car Accident – A Driver’s Guide

25 February 2016

If you have been in a car accident. the most important advice is to make sure everyone is o.k. and out of the car.

If not call the Emergency Services, dialling 999 or 112 from a mobile. Don't stand in the roadway unless you want to be injured twice. If you are on a motorway stand at the very inside of the hard shoulder, and get yourself and your family off it completely as soon as you can.

After the Accident

Once you have had an accident, you will generally start to get cold calls, texts, letters, all from persons who say they are on your side. It is very easy to become overwhelmed by the process. What has happened is that your details, and in particular your mobile phone number, have been disclosed somewhere along the way and most likely sold on for profit in breach of the Data Protection Act. Don't accept what is told to you at face value and simply go with the flow. What you should always remind yourself is it is your injury, your car damage, your wage loss etc and stop and take control of matters. You should pay particular attention to the proposed repairs being carried out to your car.
The Competition Commission in their 2013 Report carried out an independent assessment of vehicle repairs carried out at the instance of insurance companies. They found that excessive pressure on costs by insurers led to cutting corners on repairs.

Their view was that:-

"Too many non fault claimants receive a quality of service below the legal standard."
And that:-
"The position for at fault claims and repairs managed by claims management companies is likely to be similar."
They went on to say:-
"Insurers do not have the necessary incentive to ensure that claimants get the quality of service on repair to which they are entitled."
If you are a non fault driver (see below) you can instruct your own repair from an independent garage as a matter of right. You don't have to go with any of the organisations who are clamouring to help you. All of them have a financial interest, and not necessarily yours. Stop the roundabout, get off and contact a truly independent lawyer.

It's not what happened to you, it's what you can prove

What you need is an organisation prepared to carry out the painstaking and sometimes tedious job of identifying, collecting and preserving the evidence on your behalf. The truth will not march into the court or into an insurers' settlement folder by itself. The problem with so many of the claims management type organisations is that they simply want to take your details and pass them along to someone else for a fee. They are not prepared to do the necessary spade work to settle your case at full value, or if necessary to take it to a civil trial.

Are you at Fault or Non Fault?

There were around 29 million road traffic claims registered against insurers in 2012. This total includes both Non-Fault and At-Fault driver claims.

- Non-Fault Accidents

This is where someone else has caused the accident. Your legal entitlement depends on the law of reparation (known in Scotland as delictual liability). You are entitled to claim damages for personal injury suffered by you, for repair costs, for any hire costs you might reasonably have incurred, for any wage loss or other consequential losses following upon your accident These damages will be paid by the at fault insurer.

- At-Fault Accidents

If you have caused the accident, you may be able to claim against your own insurer which is a contractual claim against them in terms of your insurance policy. As a matter of law you must have at least a third party insurance policy [1] which will cover losses to others caused by your fault. In fact most policies now are comprehensive. These frequently cover repair, hire and replacement vehicle costs. The policy will not usually cover you for your personal injury although your passengers will be covered. So the first point to decide is whether you are a "Non Fault" or an "At Fault" driver.

[1] Road Traffic Act 1988

Who is to Blame?

You may have agreed at the place of the accident whose fault the accident was. In general even without agreement matters are clear cut. In 75% of cases insurers were able on a first notification of loss to decide who was at fault with 20% of cases involving split liability, and only 5% of cases undecided. If you are accepting that you are to blame you probably don't need a lawyer. Simply tell your own insurers who will deal with your claim for repair and provide you with a courtesy car depending on the terms of your policy. They will also deal with the non fault driver and seek to settle his claim, or the claim of any passengers. One area where you should take care is the standard of repair. A recent government report found that repairs by both the at-fault and non-fault insurers were frequently sub-standard. The remainder of this article deals with the situation where you are the non-fault driver.

What does the Law say as to whose Fault it was?

Most situations are very straightforward. If you slam into the back of another vehicle you must expect to take legal blame. Some situations may be more ambiguous. The key document in all of this is the Highway Code.

"A failure on the part of a person to observe a provision of the Highway Code ... may in any proceedings ... be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings."

What this means is that the Code constitutes the Rules of the Road and will be the first port of call when deciding who is at fault. You are expected to know and observe the Code, and not just for your driving test. So by way of example, the 2007 Official Highway Code at para. 215 says as follows:
"Be particularly careful of horse riders and horse drawn vehicles especially when overtaking. Always pass wide and slowly ... take great care and treat all horses as a potential hazard."
If you fail to follow the Code, don’t give the horse a wide berth and spook it whilst overtaking, causing an accident, you should expect the court to find against you [2].

[2] Countess of Lindsay v. Fife Scottish Omnibuses Limited, unreported, 30th May 2002, Court of Session, overtaking bus driver found liable for causing a horse drawing a trap to bolt. 

Make Sure you get the Registration Number of the Other Vehicle.

For various reasons the other driver may not be fully insured, e.g. a son or daughter may be driving the family care without permission. The vehicle however generally will be. Almost all insurance policies are known as "all driver" policies. This means that the insurers are required to provide liability cover for almost all situations even when e.g. the vehicle has been stolen [3]. The UK Highways Agency has a vehicle insurance database called MIDIS [4] which has the details of every insured vehicle in the UK. Many law firms have access to this database, but they will need the registration number. If you don’t have the registration number you might still be entitled to claim against the Motor Insurers’ Bureau under the Untraced Drivers’ Scheme but that makes life much more complicated.

[3] S151 of the Road Traffic Act 1988
[4] www.midis.com

A Picture is Worth a Thousand Words

Almost everyone now has a mobile or Smartphone with a camera facility. If you don't have one buy a disposable camera and put it in the glove compartment. Keep a pen and paper there as well. Take pictures of the damage to your vehicle and to the other vehicle even where the other driver is admitting it was his fault. The offending driver will sometimes play nice at the accident scene, only to change his mind and decide he wasn't at fault after domestic discussions with his spouse or significant other. The camera never lies. The nature of the damage to each vehicle will generally tell the story of how the accident took place. Take pictures as well of the general road layout and any helpful evidence such as skid marks on the road which may give an indication of speed, or collision debris which will give an indication as to place of impact.

Other Evidence 

Exchange insurance details, but take the name, address and telephone number (including mobile number) of the other driver as well. Take the names, addresses and telephone numbers (including mobile numbers) of all potential witnesses. Note carefully what the other driver says about the accident. If possible have someone else with you to hear what he or she says. The law attaches particular importance to what is said in the immediate aftermath of the accident. This is particularly so when there is what is known as "an admission against interest" i.e. the other driver admits it was his or her fault. The law takes the sensible view that the only reason these admissions are made are because it is highly likely they are true.

Medical and Other Evidence

If all that has happened is that your vehicle has been damaged, and you are uninjured, then you probably don't need a lawyer. (But if your insurers refer you to their recommended garage, remember the Competition Commission Report and make sure a proper repair job is done.) Otherwise go to yourdoctor and tell him or her your full symptoms and what has caused them. In serious cases you will attend a hospital Accident & Emergency department. Make sure you give them a proper history. These initial medical records are critical. The insurers who will later deal with your claim will pore over them and look for omissions, discrepancies, and things to use against you. Symptoms of whiplash injuries can come on a couple of days after the initial accident. If you need them a GP will be able to prescribe much more powerful painkillers than you can obtain over the counter. Keep a note of all incidental expenses including repair costs, storage charges, hire charges and your excess. Keep a note of all extra journeys required to be taken by you and the resulting inconvenience. If you find that there are activities where you need help from your partner or other relative, e.g. washing, dressing, housework, shopping etc keep a note of the level of assistance required and for how long. In serious cases keep a diary.

Liability in terms of The Motor Insurers' Bureau

This is a statutory scheme whereby the Motor Insurers' Bureau (MIB) have to satisfy claims where there is no relevant insurance policy in place at the time of the accident. You might also have to claim there if the accident occurs whilst the other driver is using the vehicle outside the terms of the policy. Insurance policies are usually sold covering social and domestic use; business or work use; use for hire or reward. So if the other driver collides with you whilst on a holiday trip at the weekend, and the relevant policy is only for business or work use, you will have to claim via the MIB.

If you are a passenger in an uninsured vehicle, there are other MIB exceptions.
The MIB will avoid liability if you knew or should have known:-

  1. That the vehicle had been stolen or unlawfully taken.
  2. The vehicle had been used without their being in force in relation to that use the required policy of insurance. 
  3. The vehicle had been used in furtherance of a crime or
  4. That the vehicle had been used by means of escape from, or avoidance of, lawful apprehension [5]. 

Even where the vehicle is being used in furtherance of a crime, you may still be able to claim. In Delaney [6] the United Kingdom was held to be in breach of EC law in insisting on this defence where Delaney was a passenger in a vehicle driven by a person carrying cannabis with a view to supply.

[5] Clause 6(1)( )e of the 1999 MIB Agreement
[6] Delaney v. Secretary of State for Transport [2014] EWCA 1785 (QB).

What about "Hit and Run"?

You may be able to claim against the Motor Insurers' Bureau in terms of the Untraced Drivers' Agreement 2003. Typically this will arise in hit and run situations. In terms of the Agreement you have to report the incident to the police within 14 days [7]. It would be prudent to get an acknowledgment from the police. You will have to cooperate fully with the police [8]. There are some exclusions. You can't recover for damage to your own car if you weren't insured [9]. You can't recover as a passenger if you knew or should have known:-

  1. That the vehicle had been stolen or unlawfully taken.
  2. The vehicle had been used without their being in force in relation to that use the required policy of insurance. 
  3. The vehicle had been used in furtherance of a crime or
  4. That the vehicle had been used by means of escape from, or avoidance of, lawful apprehension.

You can't make a claim against the MIB as the result of an act of terrorism.

[7] Clause 433 of the Untraced Drivers' Agreement 2003.
[8] Clause 433(2) of the Untraced Drivers' Agreement 2003. 
[9] Clause 5(1)(f) of the 1999 MIB Agreement

Should I Tell my Own Insurance Company?

You must notify your own insurance company immediately of any collision you are involved in regardless of whether a claim is to be made and whose fault it was. One of their principal concerns will be to recover any outlay which they have paid on your behalf e.g. repair costs. In most insurance policies in the small print you will have already granted an authority to your insurers to recover this. You may find that your own insurers want to refer you to their Panel lawyers who have probably paid them a fee for the referral. You don’t need to go there. Get a truly independent lawyer.

Claims Management Companies

These companies have no legal experts, no legally qualified staff and will not deal with your actual claim. Their business model consists in the identification and encouragement of possible claimants. Details are then sold on to lawyers as "oven ready" in the industry jargon. (In case you’re wondering, the pre-cooked chicken is you.) Referral payments are routinely between £250 - £500. The claims companies operate customer friendly 24 hour helplines. They have a ubiquitous online and TV presence. They get leads from body repair shops, garages, doctors and medical agencies. They even get leads from the police. In February 2013 Fife Police had to acknowledge under Freedom of Information that they had received £194,000.00 from claims management companies from 2010 for providing details of accident victims. They will cold-call you , text you constantly, and stop you on the street and in shopping malls. If you have a pulse and can claim to have had an accident in the last three years which was not your fault, that generally is enough. They will refer you on to a firm of lawyers for a fee payable by the lawyers. They use Google Adverts pay-per-click to get you onto their websites. You should by now have worked out that what they are selling is fresh air.

Third Party Capture

What frequently happens is that the at fault insurer will contact you directly and try to persuade you to resolve matters there and then. This is known in the industry as "third party capture". These insurers are not on your side. Think of the at fault insurer as the hunter with you as its prey. As soon as the insurance company receives notification of an accident where it senses that its driver is at fault, third party capture procedure whirs into action. They will contact you immediately, offer to arrange a courtesy car, and will check if you were injured. They will make what is known as a “Pre-Medical Offer” to settle your injury claim. This will generally be at knockdown value. If all that has happened to you is that your car has been damaged and you have no other injuries at all, their intervention is helpful and should be welcomed, subject to what we have said about arranging your own repair through an independent garage. You don’t need a lawyer in that situation. But if you have suffered any injury their objective will be to have you sign away all your legal rights to compensation in exchange for a bargain basement offer.

Your own Insurers

Most road traffic insurance policies these days have legal expenses cover. Even where you don't have as soon as you report your accident circumstances to your own insurer they will try to refer you to their Panel lawyers who will contact you to get your instructions in the matter. You may think that this “recommendation” is a badge of quality. It is really nothing of the kind. What happens is that the Panel lawyers have probably paid a referral fee of several hundreds of pounds to your insurers in exchange for your details. You are then transferred to a high volume legal practice where your case is one of thousands. There is no real advantage to this cover. The insurance company is not interested in financing loser cases. Competent litigation lawyers will act on a no win, no fee basis in road traffic cases. Insurance industry insiders estimate that e.g. Admiral Insurance (who own Elephant.co.uk) took in £10 million in personal injury referral fees during the first six months of 2012. These are commissions paid by the lawyers acting for you, to your own insurance company. You don’t need to let the insurer’s panel lawyers handle your case. If you want to be treated as an individual you will be better advised to contact an independent no win, no fee lawyer with a reputation for taking on insurance companies, not feeding from their outstretched hand. Ask the Panel solicitor how much they have paid to your own insurers, and then ask yourself if you still believe that they have only your interests at heart.

Credit Hire Companies

Your car is at the garage or body repair shop. They tell you there that you can hire a replacement and they will direct you to a Credit Hire Agency. Your replacement car is generally a top end model (what's not to like?) and the hire period tends to be prolonged. In fact the garage or repair shop will almost certainly have received a referral fee from the Credit Hire company, generally in the region of £500 or so. The Credit Hire Agency will charge a premium hire rate which they will hope to recover via your accident claim. In a recent Scottish case the unwitting claimant was effectively required to raise proceedings for the sole purpose of recovering his credit hire payments. His 14 year old Toyota Celica (value of £1,000 with 91,000 miles) had been damaged and the Accident Exchange Company provided a replacement Honda Civic 2 litre GT with 900 miles on the clock valued at £18,000.00. Daily hire costs of £161.63 were then racked up. The claimant sued for a total of £12,857.13. In a withering judgement the court held that a “new vehicle for old” hire approach was not appropriate and made a restricted award of only £1,950.00 [10].
The problem you then have is that although you have only recovered a much reduced portion of the hire costs, you will have signed an agreement which entitles the Credit Hire Agency to full payment from you of what they were trying to charge. The only way the difference can be funded is to take it out of the money recovered for you in your injury claim. As an update the Competition and Markets Committee have finally agreed to regulate credit hire agreements by applying a rate cap to all replacement vehicle providers. They will also prohibit financial inducements where claimants are encouraged to take a replacement vehicle at excessive rates. Those are the kind of organisations you are placing your trust in.

[10] Clark v. The City of Edinburgh Council [2010] CSOH 144

I have been in an Accident - Do I need to Stop?

If you are in an accident which has caused either damage or personal injury then you are required to stop at the scene of the accident long enough to exchange details including the driver's name and address. If you have supplied your name and address at the scene you don't have to report to the police unless there has been a personal injury. If there has been a personal injury you can produce your certificate of insurance at the time to the police or to some other person who has reasonable grounds for asking for it If not you must call into the police station to report the accident at the latest within 24 hours, and then produce your insurance certificate at the latest within 7 days [11].

[11] Section 170 of the Road Traffic Act 1988.
[12] Road Traffic Act 1988 Section 170. 

I Have Hit An Animal – Do I Need To Stop?

If your car hits a dog or a farm animal including horse, cow, ass, mule, sheep or pig you are required to stop and give your name and address to any person having reasonable grounds for requiring it, as well as details of the owner of the car. If you have done that you don't need to go to the police station. If for any reason you don't give your name and address you must report the accident as soon as possible to the police, taking with you your insurance certificate. You must do so within 24 hours at the latest. This is a requirement whether the accident is your fault or not. [12] If you hit a cat or a wild animal such as a deer or fox there is no legal requirement to stop. The Cats' Protection Website” offers the following advice to anyone who discovers an injured cat:-
"If the cat is moveable take him to a vet and inform the staff that you are not the owner. If the cat has no identification spread the word in your neighbourhood that you have discovered an injured cat and taken him to the vet. Putting up some posters may help to inform the owners of their cat's whereabouts."
This advice is for Cat Samaritans. It is the right thing to do but legally we have to tell you that you can simply pass by on the other side. Sorry cat lovers.

I have hit an Animal - Do I Need to Call the Police?

If your car hits a dog or farm animal you are required by law to report the incident to the police. As a rule of thumb, you should call the police if anyone is injured, where the collision has caused a hazardous situation, or where the other driver has left the scene without exchanging details.
When you are interviewed by the police make sure that you give your full version of events to the interviewing officer. You will see that he will note what is said in his police notebook, which will be recoverable at a later stage if necessary. Any police witness will be treated by the insurers and the courts as completely independent and what he says has the highest evidential value. Make sure he understands what you were doing and what you say the other driver was doing.

What if the Other Driver Fails to Stop?

The law states that if your accident has caused damage to vehicles or property it is an offence not to stop. So if the other driver fails to stop, phone the police, dialling 999, or 112 from a mobile. Get the registration number so that we can trace the insurers. If you don't have the registration number you might still be entitled to claim against the Motor Insurers’ Bureau under the Untraced Drivers’ Scheme as above.

I think I have hit a Pedestrian – Am I at Fault?

It was recently claimed that Scotland was the deadliest place in Europe to go for a walk [13, 14].

The starting point for any road traffic case is the idea that:-

  1. A pedestrian has looked both sides as well as forwards. He is going at 3 miles per hour and is not a danger to anyone else.
  2. If the motorist is careless the consequences may be disastrous.

In those circumstances a motorist may be very much more to blame than a pedestrian. What this means is that car drivers must be alert to possible foolish actions by pedestrians, especially children:-
"There is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions".

So the courts will expect a very high standard of caution and defensive driving in these situations. This is particularly so where children are involved. Witnesses might think and say "The boy just ran out, the driver had no chance". The courts will carry out a forensic investigation and might well take a different view. Were the boys grouped on the pavement, were some spilling onto the road, how long did the driver have them in view, could the driver have sounded the horn, slowed down, or moved to the middle of the road? [15] 
Similarly it is not open season on drunks. Drivers will be expected to slow down and proceed with extreme caution if there is a drunken pedestrian on the roadway.

[13] www.livingstreets.org.uk
[14] Baker v. Willoughby 1971 A.C. 467
[15] Eagle v. Chambers [2003] EWCA Civ 1107 –  pedestrian was "drunk and emotional walking in the middle of a carriageway near the broken white line.”  

 

 

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