MCN Law November round-up | 'Speed is notoriously difficult for witnesses to get right'

Paid partnership with BikeLawyer

Each month, we take a look at the questions that were sent to the MCN Law column, which is written by Andrew Campbell from BikeLawyer.

In November, Andrew was asked a tricky question by a rider who doesn’t remember their accident. He was also asked if three years after a crash is too long to claim, what legal insurance covers and whether future surgery caused by injuries should be paid for by the other side.

If you need representation or legal advice with a biking matter, visit www.bikelawyer.co.uk or email andrew@bikelawyer.co.uk or call 01446 794169.

I can’t recall the crash

I had an accident while overtaking a line of cars. The driver who knocked me off claims I was speeding and says she was indicating and turning right. I don’t have any recollection of the accident, but there were witnesses. Some claim I was riding too fast, others say I was not. They also differ as to the other driver. My solicitors are considering dropping my claim due to a lack of evidence.

Ryan, email

In assessing blame for an accident the witness evidence as well as physical evidence from the scene will be important. Just because you can’t remember does not mean you cannot claim. The differing witness accounts need to be considered carefully.

Speed is notoriously difficult for witnesses to get right. You should obtain a report from an independent accident reconstruction expert. That expert will consider all the evidence to calculate your speed and that of the other driver and, crucially, for how long you would/should have been visible to the turning vehicle’s driver. If you were there to be seen and you succeed with your claim, then there is likely to be a deduction to your compensation as you were overtaking a line of vehicles on the approach to a junction.

Should I buy the insurance?

I am renewing my insurance later this month and have a question. Last year I paid extra to include legal expenses. I haven’t needed to use it and to save money I am questioning if buying legal expenses cover is actually worth it and what it covers.

Sam, email

These policies are known as ‘before the event’ insurance and can protect policyholders by paying legal costs if litigation is required.  

They can be useful, but are often not fit for purpose. The most common complaint is insurers refusing to cover the client’s chosen legal representatives rather than the panel of solicitors the insurer has links to. This can lead to the appointment of a non-specialist firm which can affect the overall outcome of a claim.     

If you choose to take out legal expenses insurance, then it is best to read the terms of the policy carefully. You should also check if you already benefit from legal expenses insurance on another product such as home contents insurance.

If you choose not to take out a policy, then you will still be able to take out an ‘after the event’ policy. These policies are specifically designed for the legal action you are pursuing. They are, however, more expensive.

Am I too late to claim?

I had an accident in June 2021 caused by a hit and run driver and  been left with psychological problems which I did not have before. I have discovered that I could’ve claimed compensation for the injuries caused by the accident, but when I recently called my insurer I was informed that I am too late to make a claim. This does not seem fair to me as I did not previously know that I could claim compensation.

Mark Brown, email

The usual time limit to issue a claim at court for injuries and financial losses is three years. There are some exceptions, for example cases involving children. The three-year time limit also applies to the Motor Insurers’ Bureau (MIB) for hit and run claims.

Section 33 of the Limitation Act allows for the discretion of the court (or MIB) to dispense with the three-year limit under certain circumstances.

The test revolves around any prejudice to the parties if a claim is allowed to proceed after the time limit. If the Defendant is not prejudiced as a result of the delay, for example because all the evidence still exists, then the discretion may be applied. The right to a fair trial is also considered. You could contact a specialist lawyer to discuss your potential claim further.

Fusion of opinions

I had an accident in 2022. I will soon be in a position to settle my claim and my lawyer has sent my schedule of financial losses to the other side’s lawyer with a list of what I am claiming. I was advised to claim the cost of private surgery for a wrist fusion that the orthopaedic surgeon in my case said will be needed in five to 10 years.

My opponent has sent my lawyer their schedule which disputes the cost of this surgery. They argue that medical advances over the next few years will mean that I don’t need the surgery and even if I do need it then I can have it through the NHS. What can you advise?

Ray, Berkshire

It is complete speculation for them to say what might happen in terms of medical advances. Claims are settled on the basis of current medical practice. I suggest that you ask your lawyer to write to your expert orthopaedic surgeon explaining what your opponent is arguing and asking for his or her opinion.

The surgeon will hopefully confirm that the current body of medical opinion is that the surgery is required as detailed in his or her report. In relation to you having the surgery under the NHS, this is a common Defendant’s argument. The law is clear that you are entitled to the private costs of surgery.