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Cycling and walking charities say increasing small claims limit to £5 000 would make it impossible for cyclists and pedestrians to recover costs in 70% of injury cases

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.

Government whiplash crackdown would also hit legitimate claims from cyclists say campaigners

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.

Cyclists will suffer as a result of government whiplash crackdown says law firm

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.

 

7 comments

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ktache [525 posts] 5 months ago
3 likes

When the government removed legal aid for personel injuries because they thought it would save a small bit of money, which had to have a fairly high probablity of sucess to get (and of course was repaid if successful), they did not forsee the explosion in No win no fee claims which balooned the claims industry, meaning it cost them a great deal more when the NHS and such get sued.  And of course costing the insurance companies, who probably had lobbied for it, had to pay out more, so costing them and anyone who wanted to buy insurance, much more.  Unintended consequences.  

I see this move, if it were to go ahead, putting up more claims into the £5000 mark.

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cookdn [28 posts] 5 months ago
3 likes

The only way I got Directline (yes naming and shaming) to respond to a claim against one of their insured after I was knocked off my bike on a deserted roundabout was to get a County Court Judgment through the Small Claims procedure. This was by default because they didn't even respond to the court summons.

Only then did they react using their panel solicitor who would normally deal with Personal Injury claims. Their first move was an attempt to get the CCJ set aside which the Judge resisted.

After completely disproving the drivers version of events with GPS data they settled in full. The claim was only for damage to my bike and clothing despite having been quite badly bruised. They then tried to get me to support having the CCJ set aside again which I refused. Still baffled why the CCJ was such an issue to them when they had to settle in full anyway?

Now a Ride member of British Cycling simply for the legal support. Not going through that again.

Anybody know if there has been a reaction from Leigh & Day who provide the legal support for British Cycling members?

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nappe [69 posts] 5 months ago
4 likes

If the insurance industry and the government want to reduce whiplash claims, why do they not simply bring in legislation calling for the mandatory wearing of neck braces whilst driving?

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scouser_andy [17 posts] 5 months ago
3 likes

I honestly believe that the hype around the impact of these whiplash reforms upon cyclists is precisely just that. Hype. If you read the consultation document, the Government say they want to use the same definition of an soft tissue injury claim as that for RTA claims portal (paragraphs 23 & 24):

RTA PAP 16(A) soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.

Note the phrase 'occupant of a motor vehicle'. It is my view that these reforms will not extend to cyclists and in my response to the consultation, I've called for clarification that this is the case.

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brooksby [2235 posts] 5 months ago
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cookdn wrote:

Still baffled why the CCJ was such an issue to them when they had to settle in full anyway?

I think its because having a CCJ lodged against you/your company/your business shows up on credit referencing and is a very serious Black Mark.

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gw42 [8 posts] 5 months ago
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scouser_andy wrote:

Note the phrase 'occupant of a motor vehicle'. It is my view that these reforms will not extend to cyclists and in my response to the consultation, I've called for clarification that this is the case.

There's several elements to the suggested changes. The headline whiplash change means you cannot recover what's known as general damages for a whiplash injury - this is the payment for the actual pain and suffering of the injury. This is separate to finanical loss such as loss of earnings, damages to bike/car etc. 

The other change is to the small claim's limit. This is important as in the small claims court, you don't generally get your legal costs and expenses of pursuing the claim paid in addition to the actual claim. Small Claims is currently anything under £10k (not overally small in my book...) but there is an exception for personal injury - if the payment of general damages for your injury is more than £1k, you leave the small claims process and you can claim legal costs in addition.

The other proposed change would increase this exception from £1k to £5k for all personal injury claims, not just whiplash. So despite the consultation focus on whiplash, it's far more wide ranging than that. If I were cynical, I'd say they were deliberately trying to slip this in without the general public noticing....

It's important to note that despite all the press coverage, the courts in England & Wales are not overly generous when it comes to paying damages, in my opinion at least. Picking just 1 category, a "moderate hand injury" is described as "Crush injuries, penetrating wounds, soft tissue type and deep lacerations. The top of the bracket would be appropriate where surgery has failed and permanent disability remains. The bottom of the bracket would be appropriate for permanent but non-intrusive symptoms."

For that level of injury, the figure for the actual injury (again, ignoring financial losses) is a bracket between roughly £4k and £10k. So we're potentially talking about injuries with lifelong effects, albeit hopefully anything causing disability would be above the £5k level.

How average Joe on the street is supposed to deal with any of the above is anyone's guess though - what this will do is place large numbers of injured people in the position of negotiating direct with insurers and as others have said, arguing about high vis, helmets etc...

 

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bendertherobot [1414 posts] 5 months ago
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Bear in mind as well that, without the potential to claim costs, it's far easier for an insurer to play chicken with you as, arguably, you may just give up on a relatively modest injury claim if you can't be arsed to fund it.