Time spent in reconnaissance…

This claim involved issues, any of which individually can complicate and frustrate the compensation process, but collectively have the potential to cause significant hardship:

1. The collision between a Class I LGV and a cyclist was not witnessed. Other road users were on the scene in the immediate aftermath but no one saw the collision.

2. Owing to the severity of injuries sustained by the cyclist (brain injury) he had no recollection of events.

3. The individual involved was effectively self-employed. He had no company or employer’s sick pay scheme. Once he stopped working, he stopped earning. His family unit consisted of a spouse and three children.

4. The insurers of the LGV elected to repudiate liability, allege negligence on the part of the cyclist and defer dealing with the cyclist’s claim until the conclusion of any police or criminal investigations. The driver of the LGV had indicated a not guilty plea to the charge of driving without due care and attention.

Altogether an unhappy scenario because financial pressures on the family would rapidly exhaust their resources at a time when they were facing additional expenditure particularly in the form of travelling from their home in Swindon, Wiltshire, to the hospitals where their breadwinner was being treated and rehabilitated – initially Derby, subsequently Swindon and finally Bristol.

It is not generally known outside the legal industry that until any criminal proceedings have concluded, the police are unable to make available details of their own investigation or to impart any useful information over and above the names, addresses and insurance details of the parties involved, which could be many months down the line during which time the victim’s family would be suffering significant financial hardship.

The first task to be done was to establish the exact location of the accident. We knew the road and the approximate location – to within ½ a mile – but we needed to narrow that down. This was achieved in a telephone conversation in which we tugged the heartstrings of a caring civilian employee in the relevant constabulary. We got the location narrowed down to less than 100 metres.

We established the make and model of the LGV concerned; some research with the manufacturer enabled us to obtain an accurate width measurement of the tractor unit.

We attended the scene at dawn on the 9th November 2008 – Remembrance Sunday.

We had information that as the LGV was overtaking the cyclist, the driver of the LGV did not move his vehicle out of lane 1 of the dual carriageway. Having “identified” – more by hunch and intuition than any precise information – the likely point of impact we made a measurement from the white line dividing lane 1 from lane 2 of a distance equal to the width of the tractor unit and marked the carriageway prominently.

This gave us the corridor in which the cyclist was expected to proceed – between the edge line of lane 1 of the dual carriageway and the likely nearside of the LGV.

It was immediately apparent that if the cyclist were occupying the centre of that corridor the overtaking LGV had left insufficient space. The Highway Code instructs motorists to provide an overtaken cyclist with at least as much room as would be left when overtaking another vehicle. There is judicial comment suggesting that a cyclist must be allowed a corridor or at least 1 metre in width in which to proceed noting “every cyclist is allowed his wobble”. Beyond that corridor the Highway Code and guidance for those holding vocational licences (LGV and PSV drivers) require additional clearance to be given.

In short, there was simply insufficient space in lane 1 of the dual carriageway to permit the safe progress of a cyclist and a commercial vehicle.

If a motorist drives in a manner which with reasonable foresight might be anticipated to cause an accident then he will be guilty of negligence. We were sufficiently confident from the site investigation to issue civil proceedings seeking damages, prior to the conclusion of the police criminal action and the release of their own crash investigation unit files.

The forensic investigation did not stop with measuring and marking the highway. Utilizing a vehicle mounted digital camera we trailed a number of identical LGV vehicles along the dual carriageway past the scene, so as to illustrate the absence of any space to the nearside of a commercial vehicle in which a cyclist could safely proceed.

The commencement of the civil proceedings led to a denial of liability and allegations of contributory negligence against the cyclist. However, once civil proceedings are up and running it is possible to ask the managing Judge to make an interim payment of damages to the victim.

Irrespective of the still unresolved criminal proceedings and the formal denial of civil liability, at the door of the court the insurers conceded a £30,000 interim payment.

Subsequently, nine months after the accident, the LGV driver saw the error of his ways and pleaded guilty to the Section 3 offence. It took a further 3 months for the insurers of the vehicle to concede 100% liability.

The conclusions are these:-

1. If the civil court process had not been utilized it is unlikely that the claimant and his family would have received any monetary compensation until at least nine months after the accident.
2. Site inspections and reconstructions - especially where there is a lack of witness evidence – are essential. Without the procedure undertaken by an experienced team this claim may simply not have happened.

Finally, when the police file was revealed it became plain that the impact was, give or take a couple of metres, in exactly the position we had utilized for the reconstruction. Secondly, that the damage to the commercial vehicle indicated that there had been an impact between the front of that vehicle and the rear of the cyclist; it was not a matter of the cyclist wavering or wobbling into the side of the vehicle as it overtook, it was a full impact between the nearside front of the tractor unit and the rear of the cycle.

Moral of the story; anyone involved in the provision of injury claim services can call themselves a specialist. You only claim compensation once so choose your representation very carefully so that you get it absolutely right first time.

© Paul Darlington 7.v.2009