Road Traffic Accidents Do s and Don ts & the Legal Process

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1 Legal Discussion on Tipp FM with Orlagh Wafer 22 nd January 2013 Road Traffic Accidents Do s and Don ts & the Legal Process Introduction As the temperatures are dropping and the roads are becoming more dangerous today I will discuss Road Traffic Accidents and what you should and should not do and the steps we take to process your claim if you are involved in a collision. In life all of us will probably be involved in at least one road traffic accident and it is important to know what to do. If I have a Road Traffic Accident what should I do? It is okay to be a nice person Do not get angry at the scene. Remain calm and if the other party is not calm, try to remain in your car. It is okay to appear concerned for the health and safety of the other motorist. People so often hear that you must not admit liability at the scene and confuse this with having to ignore the other party. It is also okay to follow up with a phone call or a visit to enquire of a person s wellbeing indeed, one of the top 3 reasons that claimant s site for being encouraged to seek damages for their injuries is that the other party showed no interest in their wellbeing. Call the Gardaí Call the Gardaí immediately and report the incident. Where the Gardai do not attend at the scene of the accident, go to the nearest Garda station and ask the Garda at the Station to take details of the accident. This will be important at a later date if the third party denies that the accident occurred or if he is uninsured. There is a book in each Garda Station which records details of road traffic accidents and you should get the Garda to take down details in your presence. Simply give your own details i.e. Name, Address, registration of car and insurance details and where possible the same details concerning the other driver. Witnesses

2 If anyone else saw the accident happen and they have stopped, get their name and address and phone number you may never have the chance again and they could be essential in proving that you were not responsible for the collision. Get the registration number of the other vehicle This is perhaps the most important piece of information that is required. People have often taken insurance details from the other driver only to discover that the insurance was faulty or that there was not in fact any insurance on the vehicle at the time. This may mean that your Solicitor will become involved with the Motor Insurers Bureau of Ireland who deals with uninsured drivers and for them the most important piece of information is generally the registration number since it can assist them in completing their investigations with greater speed. Take insurance details Take insurance details which can be readily obtained from the disc on the windscreen. Each driver should exchange insurance details with the other. The Driver s and owner s name and address Wherever and whenever possible behave politely but be firm in the determination to take information from the other driver. People are very often shocked following an accident and may take insufficient or false information from the other driver. What steps should I take following the accident? Protect all evidence At the very earliest opportunity following an accident, you should take photographs of the scene, the vehicles involved, debris from crashed vehicles, damage to crashed vehicles and any marks on the road related to the accident. Once vehicles are moved it is very difficult to prove where they had been and so if you cannot take photographs, you should measure and note the position of vehicles on the road with reference to certain fixed objects such as a telegraph pole or entrance. Also measure the length of any skid marks that may be on the road. You should also arrange to have photographs taken of any visible injuries you have suffered this provides a useful historical record when at a later date many of the physical scars of an injury have healed from sight. Do a detailed statement of how the accident happened It is most important that you write down in the fullest detail how the accident happened and what injuries you suffered. You should set out the time, date, weather conditions, road conditions and the mechanics of the accident and why you consider the other party is at fault. We have a standard questionnaire which should assist you in completing this statement so do not hesitate to ask for assistance. It is important that you complete this statement at the earliest date. You should include as much detail as you can remember, no matter how trivial. You have no way of knowing at an early stage what will prove to be important as your case progresses. Record your injuries

3 After the accident even if it has only been a minor one you should always see your doctor for a checkup. This is important. A failure to attend a doctor at an early stage may cause difficulty later on. Make sure you tell the doctor that you were involved in an accident and detail all your injuries, both physical and psychological, no matter how trivial they may seem to you at the time. Make sure that the doctor makes a note of these details. It is very difficult to remember some months or years after the accidents how you felt in the early days. Buy a diary and keep a record of present symptoms and from then on, record your condition on a regular basis. You should also keep a note of all your medical examinations, when you went, what was said and any medical opinions offered. Sometimes an injury is exclusively psychological. Sleeping difficulties, headaches, problems coping with simple everyday situations, constant tiredness, loss of memory, nightmares or flashbacks to the accident are all common symptoms after a frightening accident. If any of these symptoms affect you, you should bring them to our attention and to the attention of your doctor immediately. If your doctor suggests referring you to a specialist for an opinion on any aspect of your injuries, you should go ahead with the referral at the earliest possible date and advise us, so that if necessary, we can obtain a report of that specialist s opinion. Report the accident to your own insurers If you are the driver or owner of a vehicle, you should inform your own insurance company immediately; even if you consider that it was not your fault. Your insurer will ask you to complete an accident report form for their file. Failure to report the accident to your insurers could mean that your insurance company would not cover you at a later date should someone make a claim against you. We would encourage you to seek our assistance in completing this accident report form. Ensure that you give us a copy of any correspondence you have with your insurer. Record your out-of-pocket expenses You are going to have out of pocket expenses such as doctor s fees, traveling expenses, pharmacy bills, hospital fees and property damage as a result of your accident. Make sure that you keep all receipts and record all such expenses in your diary. If you have a loss in wages, furnish our office with your social welfare (PPS) number and any P60 s / P45 s in your possession, together with a letter from your employer setting out your weekly loss of earnings both Net and Gross. You should use your accident diary to record details of all these expenses. You should keep copies of all invoices or receipts received you could use your diary for this purpose also. Vehicle Repairs: Get an Estimate

4 If your car has been damaged as a result of the accident, we will need to establish whether or not the car is a) A write-off i.e. uneconomical to repair compared to the cost of replacement b) Repairable You should bring it to a garage to establish the repair cost in comparison to the pre-accident value of the car. If the pre-accident value is less than the repair cost the car will be written off and you will be allowed the pre-accident value less the scrap or salvage value of the car. If the car is repairable you are entitled to depreciation at approximately 10% (for relatively new cars) of the pre vat repair figure in addition to the repair cost. Car Hire You are also entitled to hire an alternative vehicle while your car is being repaired or replaced though you should be careful not to hire for a period beyond 3 weeks without discussing the matter with us. There is a fundamental obligation on you to minimize your own loss and therefore you should act quickly in arranging the repairs to your vehicle or the purchase of a replacement if necessary. Even if you do not hire a car, we may be able to recover for you a sum of money for the loss of use of your car. i.e. the inconvenience of being without it. What should I not do at the scene of a Road Traffic Accident? Do not move your car Leave your car where it is and tell the other vehicles involved to stay where they are also until the Gardaí arrive. If it is necessary to move a vehicle to allow access to the scene for emergency vehicles, use your phone to take clear photographs of the scene and if possible mark the position of all four wheels on the road. Do not admit liability Don't admit liability at the scene of the accident. Many people will be surprised to learn that it is actually very often a condition of their Insurance Policy not to admit liability following an accident. Summary In the majority of accidents where there are no injuries or only minor injuries and where the Gardaí do not concern themselves with attending at the scene of the accident, you should be sure to at least get the registration number of the other car and bring this information to your Solicitor. In addition your Solicitor will find the following information helpful: The full name and address of the driver. The full name and address of the owner, if different from above The name and address of the Insurance Company involved with details of Policy number. The expiry date of the Policy. Photos Witnesses

5 What steps does Lynch Solicitors take in a Road Traffic Accident case? Phase 1 Gathering Information The early months of your case will be largely taken up with the process of gathering all the information we need to ensure that we achieve for you the best possible outcome. We will note all necessary details regarding the accident and your injury, talk to witnesses, instruct an engineer if necessary to document the accident scene, talk to investigating Garda or any other emergency services that may be of assistance, liase with your insurance company and begin the process of getting detailed medical reports on your injuries. At the same time we will be opening communications with the other side, their solicitors and their insurers to ensure that their investigation is also progressing. The efficiency of the other side is just as important as our efficiency here at Lynch Solicitors in ensuring that your case progresses well and while the old saying that you can only do your own job well applies, it does no harm to keep an eye on what the other side are up to. It helps avoid some of the delays that often hold up cases in their way through the litigation process. Litigation is the general legal term for resolving disputes through the Personal Injuries Assessment Board and the courts it is the way that personal injury compensation cases are dealt with in Ireland. Phase 2 Managing your application to the Injuries Board Since 2004, the Personal Injuries Assessment Board (PIAB) has acted as a filter in all cases involving personal injuries in Ireland. The name has now changed to the Injuries Board. PIAB was established with the objective of simplifying and making more efficient the whole personal injuries procedure with the dual aim of making the process faster and cheaper for insurance companies. The Injuries Board does not replace the old Court system, it merely acts as a filter, settling some cases while letting the remainder through to the Court system. Even before the Injuries Board was introduced, the vast majority of personal injuries cases were settled outside of Court and thankfully this is still the case. Phase 3 Preparing and Issuing Court Proceedings If your case is not settled or assessed by the Injuries Board for whatever reason we will then commence the court process on your behalf. This process involves taking the information we have on your case and drafting the initiating Court document. This document varies depending on whether your case is to be dealt with in the Circuit Court or the High Court and this decision is based on the seriousness of your injury. The difference between the Circuit Court and the High Court, in simple terms, is Circuit Court cases involve damages not in excess in 38,000 and cases involving damages in excess of that are commenced in the High Court. Phase 4 Progressing your case Once the initiating document is completed, it is issued by the Court Office and served on the other side or their solicitor. After that, there will be an exchange of a variety of Court documents dealing with the defence that the other side will rely on in contesting the case, discovery of relevant documents or records and preparation for the hearing of your case. Phase 5 Settlement Talks

6 At any time during this process you may be invited to settle your case and usually such settlement meetings take place in Courthouses. You will not have to speak with anyone other than Lynch Solicitors or your Barrister and we will negotiate settlement terms on your behalf. Any offers that are made by the other side will be explained to you as will any costs that have to be paid by you. You will receive our opinion on the likely outcome of your case and our views on the correct compensation that the Court would give you. Phase 6 Preparing for a Court Hearing We will prepare documents for the Court, try to agree as many aspects of the case with the other side to make the case shorter and make arrangements for the attendance of necessary witnesses such as an engineer, doctors, witnesses to the accident, witnesses to prove your out-of-pocket expenses and any other experts that may be needed to prove different aspects of your case. We will also prepare you for the hearing by explaining how the hearing will operate, explaining the types of questions that you may be asked, explaining who the various witnesses will be and in general trying to put you at ease. Phase 7 Finalising Your Case When your case has been settled or concluded in Court, there is still a lot of work to be done by us on your behalf. Our first priority is to get your settlement cheque in from the other side and pay this to you without delay. Usually this occurs within three weeks of your case being concluded. What is the Injuries Board process in Road Traffic Accidents? The Injuries Board Process The first procedural step to be taken in any personal injuries case is the completion of the Injuries Board application. This is a form that sets out the essential information about your injury and the event that caused it. We will endeavour to complete this application at the earliest possible date so that the ultimate resolution of your case will not be unduly delayed. In order to complete this application, we will need at least one medical report from your doctor and this can sometimes take a few months to obtain. Once the medical report is to hand, we can send this together with any other necessary supporting documentation to Injuries Board and your application is then logged and acknowledged by them. The Injuries Board will then send the defendant (the person you say was responsible for causing your injury) a copy of the application and the medical and will ask them if they consent to allow the Injuries Board to put a value on your injury and make an offer. This process can (and usually does) take 90 days. Following this period, if the defendant refuses to allow the Injuries Board to assess your injury, that is the end of the Injuries Board process. The Injuries Board will end their involvement in your case by issuing us with an authorisation which is, in effect, a permission to issue Court proceedings. If the defendant consents to the Injuries Board assessing your case, they will send you to be examined by a doctor on their panel of doctors. They will also seek certified details of your out of pocket expenses and loss of earnings if you have suffered such losses. The Injuries Board will then consider the detail of your injury and compare it to a reference book called the Book of Quantum. The Book of Quantum contains guidelines on the appropriate level of damages for different types of injuries. Of particular importance here is that the Book of

7 Quantum does not give any advice on psychological or psychiatric injuries which are quite common in accident cases and such cases will therefore not be determined by the Injuries Board. Such cases are given authorisation so that Court proceedings can be issued. If there are no psychological or psychiatric injuries, the Injuries Board will decide on a value for the injury and make a formal offer. We will then consider that offer against our knowledge of how similar injuries are valued in the Court system and advise you on whether to accept or reject the offer. If you decide to accept the offer, then the compensation will be paid and the case is at an end. If you decide not to accept the offer, the Injuries Board will not make an improved offer. They will issue an Authorisation so that the Court proceedings can be issued and the Injuries Board process is then at an end. How much will my claim be worth? A key difficulty with valuing personal injuries is that we cannot form a clear opinion on a value until we have a clear prognosis for your doctors. For this reason, we will usually not be able to offer more than a general guideline on the value of your injury at the beginning. As time moves on and we get more medical information, that opinion will be revised until we have enough information to value your injury with confidence. Ultimately, it is up to the Court to fix the value of your claim. Should your case go that far, you should bear in mind that judges can vary greatly in the amount of compensation that they award. How long before my case will be heard? Most people are aware that it will take a certain length of time before a case comes up for hearing in the Courts. These delays are due primarily to the fact that there are only a limited number of judges. Another reason is that some cases are not ready to be heard by the Court for a time and this is particularly so where the injuries have been severe it can take time for the person to recover and until s/he has recovered sufficiently, or their condition has stabilised, the case should not be heard. On average cases in the District Court tend to take about 6 months; in the Circuit Court, 2 years and in the High Court, 2 or 3 years. More complicated cases can take longer. Does the case have to go to Court? As a general rule, the majority of cases are settled without going into Court. However, they are only settled provided that you are agreeable to accepting the figure that is offered in full and final settlement of your claim. We will advise you fully before you make this decision. Contact Us If you have been involved in a collision or if you have any queries on Road Traffic Accidents or wish to discuss any other areas of Litigation law please contact Orlagh Wafer at orlagh@lynchsolicitors.ie or telephone / Freephone