The victim of a road traffic collision is joining the campaign to change the law after her experience left her battered and bewildered by a system heavily weighted in favour of the car driver and feeling worthless.
Cyclist, Jennifer Wallace, spent her 49th birthday in Intensive care after a 78-year-old driver caused her to fall off her bike. Jennifer sustained ten broken bones in her neck and spine, fractured ribs, a collapsed lung and a significant head injury.
It was a life-threatening event; yet, because Jennifer’s injuries meant that she has no recollection of the accident, the Procurator Fiscal determined that a criminal prosecution could not be pursued and the driver’s insurance company persistently claimed the collision was her fault.
The accident took place on 21st April 2015 and only after an 18-month emotional roller coaster has her road to recovery led to some level of justice through a civil action.
Jennifer is now supporting Brenda Mitchell of Cycle Law Scotland (CLS), who took up and won her case, in the fight to see presumed liability introduced into Scots Civil Law.
Under a system of presumed liability, to avoid paying compensation, the driver’s insurer would have to establish negligence on Jennifer’s part rather than placing the onus on Jennifer to establish negligence on the part of the driver. This was especially difficult for Jennifer as her head injury affected her memory. They argue that presumed liability in Civil Law would result in Jennifer’s case and others like hers reaching a swift conclusion, saving the insurance industry thousands of pounds in unnecessary litigation.
Compensation for much-needed medical treatments would be paid out without dispute and the adversarial nature of the current fault-based system would be replaced with a far more mature and compassionate system of support for vulnerable road users injured in road traffic collisions.
Jennifer’s accident took place on the B6461 in the Scottish Borders. Jennifer fully expected the police to charge the driver but that didn’t happen for a number of months and only after a second police investigation.
No evidence and only partial witness statements were taken at the scene of the accident and the initial police report concluded that Jennifer’s injuries were ‘slight’. No statement was taken from Jennifer until the time of the second police investigation.
But, even accepting the limitations of the police investigations, the behaviour of the insurance company was arguably even more stressful for Jennifer. For four months, the driver’s insurance company, Ageas Insurance, persistently refused to admit any liability. Initially, it refused to pay for physical and psychological treatments to help in Jennifer’s recovery and when they did, only for a limited period.
When the case was eventually transferred to the insurer’s solicitors in January 2016, Jennifer was given an ultimatum to accept a settlement. It was refused as inadequate due to the nature of her injuries and ongoing treatments.
Proceedings were raised by CLS on Jennifer’s behalf in September 2016. Ageas Insurance stated Jennifer had fallen as a result of hitting a pothole, ignoring the fact that at the time their driver had been overtaking Jennifer and was clearly far too close. Before the case reached court, the insurance company made an offer to settle. The amount was twice the original sum proposed and represented the full value of the claim.
Brenda Mitchell commented:
“Jennifer is delighted with the settlement, but the past 18 months have highlighted the shortcomings of the current fault-based system.
“Jennifer could not recall the accident circumstances due to her serious head injury. The initial police investigation was woeful. Whilst there may have been grounds for reasonable doubt in a criminal prosecution, the issue of negligence in Civil Law was much stronger and this case should have been dealt with at a much earlier stage.
“Because it is up to the cyclist to prove, on balance of probability, the driver’s negligence, it is often the case that a large insurer will sit back and say “prove it” and in cases where memory is lost through injury, it places undue pressure and stress on those least able to bear it.
“A system of presumed liability in Civil Law, which puts the vulnerable victims of road traffic collisions first, would remove to a greater extent the adversarial nature of claims, speed up the process and ultimately lead to less litigation.
“It seems only reasonable to say to large insurance companies, compensate injured cyclists unless you can prove they are at fault. In Jennifer’s case, the insurer must have decided Jennifer was not to blame but that took far too long and pressure was brought to bear with low offers and ultimatums. It’s not the way we should treat the injured individual.”
"I feel that the whole system is weighted in favour of large insurance companies . The process is simply not balanced and my experience was like being in a nightmare. I was the one hurt (and seriously), yet I was being made to feel worthless as a human being by the police and the insurers.
“A change in approach is needed. Introducing a system of presumed liability into Civil Law could be the catalyst for all road users to think differently when they get into their cars, and for everyone to think about the person and the injuries caused, not about attributing blame.”
Despite the setback, Jennifer is now pain-free and, with the immense support of her family and friends, has been determined to get back on her replacement bike. She began cycling again earlier this year and since then, has cycled more than 1,700 miles, including a 140-mile Coast to Coast charity ride to raise more than £1,000.