Insurance claim highlights David v Goliath system

Mark Lonnen

Mark Lonnen is an experienced mountain biker and road cyclist.

On the 14th June 2014, he was cycling his Santa Cruz Blur XC carbon frame mountain bike on the High Street in Dunblane. He exited the High Street on to a roundabout and travelled straight on onto a road called The Cross. A BMW was parked on double yellow lines on The Cross.

Suddenly and with no warning, the driver door of the BMW car opened into the path of Mr Lonnen. Mr Lonnen was unable to take any evasive action and his nearside handlebar struck the outer edge of the BMW driver door resulting in him being thrown over the handlebars of his bike.

The accident was witnessed by two independent witnesses. Both witnesses came to the assistance of Mr Lonnen and provided their details. Mr Lonnen fractured his left wrist in the accident. He reported the incident to the police and provided details of the witnesses who had been at the scene and also details of the driver.

Within three days, Mr Lonnen put in a claim to the insurance company of the BMW. All seemingly very straightforward, yet a series of battles with the driver’s insurance company highlights a ‘David and Goliath’ scenario that beggars belief.

In August 2014, a response was received from the insurers advising they were not yet in a position to confirm their position in relation to fault. By October they were no further forward and when no further response was forthcoming by December, Court proceedings were drafted to progress Mr Lonnen’s claim and obtain the award of damages he was entitled to.

BMW ScratchA formal Defence was received from the Solicitors representing the BMW driver’s insurance company in the middle of January 2015. They denied liability and alleged the accident happened as follows: “The insured (BMW vehicle driver) was parked in a bay on the western side of The Cross. The insured’s car engine was turned off. The insured was in his car. The driver’s door was shut. Suddenly and without warning, the Pursuer’s bicycle struck the driver side of the insured’s car.” They went on to try and prove that Mr Lonnen was cycling too fast and had left a long scratch along the door and front panel of the car, drawing on a specially commissioned engineer’s report with photographs taken nine months after the incident. This was clearly a completely different version of events, and completely incorrect.

Fortunately, Mr Lonnen had taken a photograph of the BMW vehicle in situ shortly after the accident. It was clearly parked on double yellow lines, showed a small dent on the door sustained as Mr Lonnen was thrown over the handlebars and significantly no scratch. Cycle Law Scotland were also able to provide detailed statements from the two witnesses.

The comparison of the photographs, coupled with the supportive independent witness evidence confirmed that Mr Lonnen’s version of events was accurate.

Eventually, the Defenders made an offer on 17th June 2015, one year and 3 days after the accident happened. This offer was not enough to properly compensate Mr Lonnen and the offer was rejected. It took the Defenders another month to increase their offer to a level that was acceptable.

The lack of an admission of liability in such a straight forward case resulted in a delay in Mr Lonnen receiving the compensation for his injury and the damage to his bike, but it also highlights a culture weighted against cyclists.

Brenda Mitchell who acted for Mr Lonnen said:

“It was very alarming to see the Defenders seeking to rely on an engineer report using photographs that were 9 months old. Those photographs depicted damage to the BMW that was not present at the time of the accident. The Defenders had access to that original photograph taken on the date of the accident and had not noticed that the damage was not there. The Defenders also failed to speak to the witnesses prior to us releasing their information to them. Those witnesses were detailed on the police report and would have been easy to contact. Had this been done pre litigation and the witness evidence obtained earlier, it could be argued that the Defenders may have settled the case sooner.”

As a campaigner for presumed liability for Scotland’s vulnerable road users, Brenda added:

“Under presumed liability, this farcical process would have been avoided. Currently, our civil law requires the vulnerable road user - the injured and the bereaved - to prove the case against the more powerful, which in most cases is the motorist’s insurance company. Under presumed liability, it is for the more powerful to prove that the vulnerable road user is liable for the collision. “The situation endured by Mr Lonnen was entirely unnecessary, as was the cost incurred by the refusal to admit liability by the insurers. Presumed liability would have been beneficial for all parties concerned.”

 

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