Almost 6 000 people have written to Justice Secretary Elizabeth Truss to voice concerns over proposed changes to compensation rules that campaigners say would make it impossible for cyclists and pedestrians to recover their costs in the majority of injury cases.
In response to a Ministry of Justice (MoJ) consultation proposing to increase the small claims limit from £1,000 to £5,000 in a bid to reduce exaggerated whiplash claims, Cycling UK, RoadPeace and Living Streets launched a Road Victims are Real Victims campaign highlighting the dramatic effect this will have on cycling injury compensation claims.
They say changes would affect 70 per cent of cyclist and pedestrian injuries - usually broken collarbones, wrists and ankles - forcing claimants to pay for their own medical reports, and legal help, and exposing unrepresented cyclists and pedestrians to unscrupulous insurers potentially looking to apportion blame for not wearing hi-vis or a helmet.
Cycling UK says the Ministry of Justice is “pandering to the insurance industry lobbyists” by reducing likely whiplash compensation claims, while “sending a message to motorised road users that vulnerable road users' injuries are a trifling matter”.
The deadline for consultation responses was on Friday, by which time 5,986 people had written to Liz Truss via Cycling UK objecting to the proposals, and their effect on genuine claims by cyclists and pedestrians.
Cycling UK’s Duncan Dollimore told road.cc while the consultation appeared on the face of it to be about whiplash, the proposals could have serious, wider implications. He said: “The [MoJ] buried the implications for cycling and walking in the details of the consultation, then whenever anybody asks or questions about this they talk about whiplash, without regard to any of the other people who will be affected by it.”
Dollimore says victims seeking to avoid legal costs may end up not pursuing a case, or may choose to represent themselves, putting themselves at the mercy of the insurers’ sense of fair play. He says those who cannot afford legal representation risk being blamed for a collision, and denied compensation, where drivers’ insurers argue contributory negligence such as not wearing hi-vis, helmets or filtering through traffic, or riding too near or too far from the kerb.
He said while drivers in whiplash claims may not need representation this is often not the case in cycling or pedestrian injuries.
“The government’s thinking is that people can deal with all these [smaller] claims themselves. They assume there won’t be disputes about culpability because often there aren’t, where somebody has driven into the back of you at traffic lights, so they think you don’t really need a lawyer to present that, and there is some truth in that.
“However, whenever you speak about cycling or pedestrian injuries they are more complicated, partly because insurers make them more complicated.”
“Many more of the cases that involve vulnerable road users are contested by insurers, who seek to do the loop hole lawyer bit, like: why was the pedestrian wearing black, why wasn’t the cyclist wearing hi-vis or a helmet, why were they filtering through traffic?”
Dollimore fears district judges, unused to dealing with cycling cases could be swayed by these arguments.
Many injured cyclists simply will not be able to make a claim. In a blog Dollimore gave the example of Cycling UK member Anthony, who was cycling over a roundabout when a driver failed to give way.
“In the ensuing collision, Anthony went over the bonnet of the car, sustaining various injuries to his hips, elbows and hand, and his bike was a right-off. His personal injury claim was settled, but a medical report was needed. He recovered £2909.95 for injuries and bike damage,” writes Dollimore.
“Currently the small claims limit is £1,000, so Anthony's legal costs and the costs of the medical report were paid by the driver's insurers. If the limit had been £5,000, Anthony wouldn't have recovered £2909.95, as he would have had to pay his costs out of that compensation.”
Dollimore also gave the example of John, who injured his knee after hitting a pothole cycling. Dollimore said: “The council disputed liability and court proceedings had to be issued before the council’s insurers settled the claim. John received £3,000 for an injury which caused pain and suffering, and affected his sleep and daily activities for ten months”.
In both cases Dollimore says those injured would have been deterred from making claims under proposed changes.
In a letter to the MoJ, seen by road.cc, Cycling UK writes: “Almost 6000 people have responded to our Road Victims are Real Victims campaign, and emailed the Ministry of Justice (MoJ) to outline their opposition to these reforms, principally to the proposed increase in the small claims limit, which disproportionately affects [vulnerable road users] VRUs.
“Seventy per cent of cyclists’ compensation claims are under the proposed new £5 000 limit. We would hope that the MoJ will now consider the concerns expressed by cycling, pedestrian and road victim charities, and their members and supporters, and reflect upon the implications of the proposed changes for VRUs, who are road users who extremely rarely pursue compensation claims that include a whiplash element.”
The charities called on people to write to the MoJ with their concerns and received an overwhelming response over the Christmas period. There will be a debate in Westminster Hall on Wednesday on access to justice, in which proposed changes will be discussed. The results of the consultation won’t be published until April, and Cycling UK says it will set up an action for people to write to their MPs on the issue in the coming days.