Monday 10 March 2014

What to do if involved in a bike accident

Summary: If involved in an accident while cycling, there are some additional tips to be aware of in addition to the more obvious and common advice. These include getting witness contact details immediately, checking properly for damages, ensuring you understand what compulsory insurance covers, not exposing yourself to massive liabilities and how best to file a police report. Later you should also review the advice on how to avoid future accidents or minimise the consequences.

cc licensed ( BY ) flickr photo shared by Dru
Related Posts:
Self-insurance usually beats paying for bike insurance

1. Avoid accidents and learn how to minimise the risk and consequences
- When it comes to accidents, a little prevention thought and effort will likely save you a considerable amount of time, energy, money and health impacts. Urban cycling can be very safe if you control your circumstances, learn about risks and how to avoid them, and choose to ride defensively. Then even if you do have an accident it's likely the consequences will be far less severe (e.g. due to you travelling at lower speed and having the knowledge/skills to react optimally). See: Actual cycling accident history proves how safe it can be and also the "safety and health" category of this blog.

- If you're reading this post because you recently had an accident, feel free to skip this tip immediately but this advice is actually most relevant to you, as you can clearly benefit from eliminating future accidents.

2. Follow the common sense, standard advice
- Get out of danger, call for an ambulance if needed, call the police if anyone was injured or there was damage to property owned by anyone not present, exchange details with the other party, get witness details, take pictures, get fully checked out, fully check your bike out and seek advice from your local cycling organisation or insurance company. See: > What to do if you have a cycling accident; > What to do if you've been involved in a crash

- Below I'll focus on a few tips that are less obvious or common.

3. If the accident wasn't your fault, get the other party's registration and contact details
- Regardless of how minor the incident, it is typically better to get the other party's contact details and vehicle registration if you weren't at fault. Sometimes your own injuries are not apparent till much later (e.g. significant wrist soreness). Or your bike may be rideable immediately after but you may find significant damage later on. You'll need these details to lodge police reports or insurance claims.

4. If the accident wasn't your fault, immediately get key witness contact details
- Without witness involvement, liability for accidents comes down to the statements from the two parties involved; except for serious accidents, where police attend the scene, these are usually written accident reports filed later at a police station. The simple fact is that people routinely recall events inaccurately, lie, exaggerate and distort or omit facts in these accident reports in order to minimise their culpability for damages/injuries and the extent of fines and licence demerit points. Police are often faced with conflicting and partial accounts and thus often are unable to confidently reach the most accurate decision regarding liability and penalties. Thus, witness statements are the best way to ensure you achieve the most just outcome - including where your own understanding is not comprehensive or completely reliable.

- Witnesses are often present but will typically leave quickly if not approached immediately or they believe at least one other witness will stay around. Also, most witnesses are happy to provide their name and phone number should their details or a statement be required later but do not wish to be delayed for more than a couple of minutes. So you should immediately pull out your phone and ask any witnesses that observed the accident to simply provide their name and phone number.

5. If the accident wasn't your fault, get witness assessments verbally at the scene and in writing later
- Often there is no clear discussion and acceptance of liability at the scene. However, if the accident definitely wasn't your fault and witnesses are available who concur, you should try and make the other party aware of the witnesses' independent assessments at the scene (and that you are getting their details). Witness testimony relayed later in writing is important but there is less chance of conflicting versions from the two parties involved if the facts have been clarified at the scene. If the accident clearly wasn't your fault or was clearly the other party's fault, it's desirable that all involved and any witnesses leave the scene with that understanding.

- E.g. In one accident I was involved in, a driver turned into a parking spot right across the green-painted bike lane I was cycling in and caused me to slam on the brakes and come off and my bike to hit her car. She obviously hadn't seen me in her rear mirror but insisted she had checked. If two witnesses hadn't voluntarily stopped to write their contact details and hand them to me the driver could well have wondered if I may have done something to contribute to the accident (after all, she didn't she it). The witnesses' actions confirmed to the driver that she was definitely at fault. We exchanged details and she agreed to pay for any damage to my bike.

6. If the accident was your fault (even partially), ensure you check thoroughly for damages and injuries
- If you admit liability or are found to be liable by the police, then you may be at risk of significant financial costs. So if the accident was your fault or there's a chance you may be found liable you should, where feasible, ascertain any injuries to other people and all damage. Use your phone camera to take pictures. Even minor damage to cars can be incredibly expensive to repair and you don't want to write a blank check for all dents and scratches on a car if you haven't caused them.

7. If a car, motorcycle, bus, train or tram was involved and anyone was injured, understand if this is covered by compulsory insurance (TAC in Victoria)
- The Transport Accident Commission (TAC) is funded by motor vehicle compulsory insurance and pays "the reasonable costs of  medical treatment, rehabilitation services, disability services, income assistance, travel and household support services that you may need as a result of your injuries from a transport accident." TAC - What the TAC pays for. Being at fault does not affect your ability to claim for injuries.

According to TAC: "a person injured as a result of a transport accident may be entitled to compensation. A transport accident is defined as an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram." TAC - Transport Accidents. However, there are specific cyclist inclusions (see below).

- There is confusion and misinformation about cyclist coverage. Cyclist coverage is further clarified by TAC as follows:
"A cyclist will not be entitled to compensation pursuant to the provisions of the Transport Accident Act 1986 where that cyclist collides with a stationary motor car or motor vehicle, unless the collision occurred whilst the cyclist was on a journey to or from work (effective from 7 December 2000).
A cyclist will be entitled to compensation pursuant to the provisions of the Transport Accident Act 1986 where that cyclist is injured in a collision with an open or opening car door.
A cyclist involved in a transport accident will be entitled to compensation where there has been no collision with a motor car, motor vehicle, train or tram provided the incident and the injury was caused by a feature of the driving. For example, a cyclist swerves to miss a car that pulls out in front of him or her and in doing so, he or she falls off the bike and is injured."
TAC - Transport Accidents
See: RideOn: Protecting the vulnerable

8. Understand that TAC only pays after the first $599 of costs if the medical excess applies
- Some injury-related services have no excess and TAC will cover them wholly (e.g. an ambulance). However, some other treatment services are subject to the medical excess. See: TAC - The medical excess.

Also note with respect to hospital treatment:

TAC advises: "A hospital usually classifies a person as an inpatient if he or she stays for more than one day." So this hospital inpatient rule and medical excess cost should be considered. Note that TAC claims do require a medical report so if planning on claiming the quicker you get a medical assessment the better.

9. If a pedestrian was involved you're generally at fault ethically even if not technically
- From a humanist ethical perspective, all road users should be acting in ways to protect the most vulnerable and thus cyclists have a much greater responsibility not to hit pedestrians - which includes giving way and braking in advance even when they technically are breaking the law (crossing against red lights, standing in the road). See: All road users are NOT equal - motorists come near the bottom

- If involved in an accident with a pedestrian (even if they technically were breaking the law) you should consider whether you could have anticipated the incident and slowed down, stopped or given them more space. If you could have, then you should almost never seek compensation for your damages against a pedestrian. You should always stop and ensure they receive any assistance needed. However, don't admit liability at the scene for accidents with pedestrians - see below.

10. If you injure a pedestrian and it's your fault you may be liable for most of their out-of-pocket medical expenses
- Accidents between cyclists and pedestrians (where no motor vehicle is involved) are generally not covered by compulsory motor insurance schemes like TAC. In Australia, temporary injuries may be covered significantly by free public health care or the individual's private health insurance. However, longer-term or permanent injuries may result in some significant uncovered medical costs.

- Thus you should be extra careful to avoid all accidents with pedestrians. If you ride at speeds or in circumstances where pedestrians may possibly be injured, you should make sure you are covered by insurance of some kind. Many Home and Contents insurance policies provide the option to cover public liability. Alternatively, you can purchase third party insurance through your local cycling association. See: Self-insurance usually beats paying for bike insurance

11. Admit liability only if the accident was minor and none of the exceptions below apply
- General advice from lawyers and insurance companies would be to never admit liability at the scene and if asked to advise that you will contact your insurance company or file a written accident report. However, for minor accidents that were definitely your fault there is usually no harm in admitting liability verbally or apologising and seeking the most efficient, amicable resolution possible. This may involve an agreement to cover obvious costs. However, do not admit liability in writing as that is open to greater exploitation.

- Generally you shouldn't admit liability if any of the below circumstances apply:

(a) You hit a pedestrian or someone was injured and no motor vehicle was involved.
(b) There was any significant injury to a person. A police report will determine liability.
(c) There was major property damage.
(d) You aren't 100% confident you know the applicable road rules. E.g. The road rules don't always reflect actual responsibility in every instance.
(e) The other person isn't obviously seeking a fair, reasonable settlement.

12. Determine whether to contact police and also file a written accident report; if doing so use photos and witness statements
- In Victoria, the law is that police must be notified if a person has been injured or killed or if there is damage to property and the owner is not at the scene. So for minor accidents where there is no dispute as to liability and any payment is directly between the two parties, there may be no need to contact police or file an accident report with them if it isn't mandatory. Note: Cyclists often sustain minor injuries in accidents (sprained wrists, grazes/bruises) and don't call the police or file police reports due to the hassle. Make the decision based on whether there's any chance you'll need a police report (TAC/insurance claims) and the seriousness of the incident - some drivers shouldn't escape with no police investigation.

- If you can reach an amicable settlement with the other person directly, filing a voluntary police report isn't necessary, but make sure that the other party isn't doing so. In some cases, if only one party files a police report, the police may issue a fine against the party that doesn't report and find them liable for the accident - even if the two parties have already reached settlement or have agreed on different liabilities.

- If you determine you need to file a written police report at a local station ensure you include any available witness statements or photos. If you have already agreed resolution with the other party, note this in the police report. If you are filing the police report to cover property damage or injuries you've sustained, make sure you include photos.

13. If you will need medical treatment, call an ambulance, especially if the costs are covered
- If either your health insurance or compulsory motorist insurance (e.g. TAC) will cover ambulance costs and you will need medical treatment then it may be worthwhile calling an ambulance, even if your injuries are not serious. Apparently, TAC claims are easier if you used an ambulance immediately after the accident. Also, in Victoria, if an ambulance is called the police must attend the scene immediately and make an accident report. If you call the police but not an ambulance and the accident is assessed as minor, the police may not show up or may take a long time to show up.

14. If not at fault and you've suffered property damage, determine how to recover the costs
- If the other party is liable you can claim for damage to any property including your bike, accessories and clothing. Motorists are often insured so simply ask and obstain their insurance details. You'll simply need to provide evidence of the property damage - the best method is photos and written quotes for replacement.

- If the other party is not insured, this is trickier as you don't want to have to get a lawyer involved and wait weeks or months for it to be settled. Try and reach an amicable settlement for at least the essential repair/replacement costs for the lowest quotes you can find. In this scenario, it is particularly important to briefly run through the obvious property damage at the scene with the other person. And to advise that a full inspection may turn up unobvious damage.

- If the other party is liable but not responsive, you can mail them a letter of demand (you don't need a lawyer to do this). However, you should have lodged a police report and then be able to obtain the resulting written outcome from the police which is known as a Traffic Accident Report. In Victoria, download the form from the Victoria Police website, pay around $46 and get a copy of this report. See: Victoria Police - Traffic Accident Report. If it finds in your favour, attach it to your letter of demand.

Further Info:
What to do if you've been involved in a crash

What to do if you have a cycling accident

What do to after a crash (Bicycle Network)

Cyclists and the police - a question of fair treatment

TAC - Who can claim

TAC - What to do if you've had an accident

Bicycle Network - The Transport Accident Commission (TAC)

RACV - What to do after an accident

Bicycle insurance - what you need to consider