Compensation for injury

Full details of the procedure for obtaining compensation for injury resulting from a traffic accident is contained on Personal Injuries.

Legal advice will be necessary and there is a time limit of three years for the commencement of legal action from the date of the injury.

Compensation for damage

When damage has been caused to personal property, for example a garden wall, in most cases it is possible to claim compensation from the insurers of the driver whose vehicle caused the damage.

Police

The matter should be reported to the police if the incident happened on public roads, as they may wish to prosecute the driver. Evidence of the police investigation can be useful if there is contention concerning the facts. Reports can be requested from the Police but usually the insurance company will make the application.

Damage to a vehicle or possessions

When advising a client on claiming after an accident you should check the insurance policy details.

Most insurance policies state that the policyholder should not admit to being at fault in the accident. If they do, then the policy may become void. Even if the policy does not state this, the policyholder should never admit to being liable. Even an apology made at the time of the accident may be construed as admitting liability.

It is a condition of car insurance policies that the policyholder should inform the insurance company of any accident whether or not there will be a claim. Failure to do so may be seen by the insurance company as non-disclosure of relevant information and may mean the insurance company would not meet a future claim. An accident report form should be completed but the client should, where appropriate, make it clear they are not claiming.

In all accidents, the insurance company should be informed as soon as possible. The local office at the insurance company or the broker who arranged the insurance should be informed. Any telephone calls should be followed by a confirming letter asking for an accident report form. Other documents relating to the accident should also be sent to the insurers immediately.

Making a claim: 3rd party, fire and theft insurance

If a client with third party, fire and theft insurance has an accident which is clearly their fault, they will not be able to make a successful claim either for repairs to the vehicle or for any injuries to them. A policyholder should, however, never admit to liability at the scene of the accident. This can lead to the policy becoming void.

Although the client may think they know who is responsible for causing the accident, it is the insurance company’s decision which is significant in settling a claim. The client should be advised to claim against the other driver in any accident and allow the insurance company to decide who is liable.

In order to claim against the other driver, the client should:

• write to the other driver involved in the accident informing them of the intention to claim. The client should ask the other driver to inform their insurance company of this.
• in the event of an accident being caused by someone driving a company vehicle, the client should notify both the driver and the company, as the insurance is likely to have been taken out by the company.
• write to the other driver’s insurance company, if possible giving the other driver’s policy/certificate number (in Jersey, from the insurance disk on windscreen). Details of the accident should be given. Statements from witnesses should also be sent (see para 24-26). The claim should not be delayed while waiting for witness statements as these can be sent on later.
• send an estimate of the cost of the vehicle repair as soon as possible
• write to their own insurance company informing them that a claim is being made against the other party.

If more than one vehicle was involved in the accident, the client should claim against the driver of the car that hit them, unless instructed otherwise by the insurance company.

How the claim is assessed

When the insurance company has investigated the circumstances of the accident, the following settlements are possible:

• the insurer recognises that their client (the other party involved in the accident) is liable and the claim is met
• the insurer denies liability and the claim is not met
• the insurer decides that both parties have some responsibility for causing the accident. A settlement will be offered which reflects the way liability has been apportioned between the two parties. For example the insurance company considers person A to be 25% liable and person B 75% liable. Person A will have 75% of their claim paid and Person B will have 25% of their claim paid.

If the client thinks that the offer is unreasonable, a letter can be written to the insurance company asking for its decision to be reviewed.

Making a claim: comprehensive insurance

If the client has comprehensive insurance it will usually be best if they claim on their own insurance policy. They should give information on the other driver and their insurance. If the client has not been able to get this information, the insurance company will still pay out but the client will probably lose some or all of their no claims bonus.

If the insurance company believe the other party to be at fault and can collect the payment they made to their policyholder from the other insurance company, the client will not lose their no claims bonus.

Problems with claiming after an accident

Claiming back uninsured losses

There are a number of losses which a driver may have after an accident for which they cannot get an insurance payment under their insurance policy. These are known as uninsured losses. The common uninsured losses are:-

• excesses, i.e. the amount stipulated in the policy that the policyholder must pay (often £50 or £100, but can be much higher)
• cost of transport to work or hire of a car while the driver does not have the use of their own vehicle – for example, while the vehicle is being repaired. A Court of Appeal case has held that the cost of hiring a car, after repairs have been completed, can also be recovered from the person responsible for the accident or their insurance company. This could happen when the repairs have been authorised by – for example, an insurance company, but the money to cover the cost of the repairs has not been sent and the client cannot afford to pay the repair. The same case also held that although the client should normally hire a similar model to their own vehicle, the costs of hiring a larger car could be met when it would have been more expensive to hire a similar model
• loss of earnings because of time off work
• other direct expenses in connection with the accident.

Where the vehicle has been written-off as a result of the accident, the insurance policy comes to an end. It is generally not possible to transfer the remainder of the period of cover to another vehicle, although some insurance companies will allow policies to be carried over. If the policy cannot be carried over and the policy holder loses money, they could claim the amount lost as an uninsured loss.

The client may be able to recover uninsured losses from the other party involved in the accident. The client will only be able to make a totally successful claim if it is clear that the other party caused the accident. The client may have to accept a partial payment on the basis that they were partly to blame. If the other party’s insurance company has met the client’s claim, this should be sufficient evidence to show liability for the accident. The other party should be asked for the money. If they refuse to pay, the Petty Debts Court may have to be used.

The client should provide evidence such as receipts of the costs they have incurred as uninsured losses and any claim made should be ‘reasonable’- for example, the client would be expected to use public transport if available and not a taxi.

Some insurance companies provide a policy which pay the client’s legal costs in recovering uninsured losses. The client should check whether they have this type of insurance policy.

Other driver refuses to give information or notify their insurance company

If the other driver involved in the accident refuses to give details such as their name and address but the client has the other vehicle’s registration number, it should be possible to trace the vehicle’s owner and insurance company (this may not be the driver involved in the accident). In Jersey, the name of the insurance company appears on the insurance disk attached to the windscreen.

Where a client with 3rd party, fire and theft insurance claims against another driver, that driver’s insurance company will only deal with the client’s claim if they have been asked to by their policyholder.

If the other driver refuses to notify the insurance company, a letter should be written pointing out that, if the insurance company cannot deal with the claim, proceedings in the Petty Debts Court may be the only way of resolving the matter. It is an offence under the Road Traffic (Jersey) Law 1956 Article 27 to refuse to provide insurance details and the police should be informed.

If the other driver still refuses to notify the insurance company, or refuses to pay for the damage to the vehicle, the client will have to sue in the Petty Debts Court. The client must sue the driver of the car, not the insurance company. The insurance company must, however, be given seven days notice before proceedings commence. If the Court finds that the driver is responsible or partly responsible for the accident and therefore owes the client compensation for damages, the client can then claim directly against the driver’s insurance company if the driver refuses or is unable to pay.

Knock-for-knock agreements

Two insurance companies will sometimes agree that each company will pay for damages for its own client’s car. They agree that they will not argue over which client was responsible for the accident. This is called a knock-for-knock agreement.

Although a knock-for-knock agreement can mean that claims will be met more quickly than otherwise, problems can arise over the no claims bonus. A driver should only lose their no claims bonus if, had there not been a knock-for-knock agreement, their insurance company would have been responsible for paying for all or some of the damage to the other vehicle. A driver who is totally blameless for the accident should not lose their no claims bonus.

The driver who is convinced they are blameless in the accident will have to provide evidence to the insurance company of this. Some useful supporting evidence would be:

• prosecution of the other driver, particularly if there was a conviction.
• reports from witnesses (see paras 24-26).
• full recovery of any uninsured losses, for example, an excess.

Statement from witnesses

Insurance companies are mainly interested in information from independent witnesses. This means that statements from passengers in the car, friends or relatives will be of little use to the insurance company. The only statements that carry any weight would be from people on the street or other drivers.

If the client did not get names and addresses of witnesses at the time of the accident, there is little they can do about getting statements.

A witness cannot usually be forced to provide a statement.

Damage to property

Claiming on household insurance

As long as the property owner has full insurance cover, the easiest way to get compensation for damaged caused by a vehicle is through their own policy under ‘impact damage’.

Note: if the damage was caused by a vehicle owned by the policyholder or their family, the insurers will not meet a claim.

If the driver of the vehicle is unknown, the householders insurer will bear the cost of the claim. If the driver or vehicle owner is known, the insurers will attempt to recover the cost of the repairs from the vehicle’s insurers, probably using loss-adjusters.

Where there is no household insurance cover

If the property owner is not insured, but they know who owns the vehicle which has caused damage, it should be possible for a claim to be made against the vehicle’s insurers by the vehicle’s owner. The property owner cannot make the claim, but must write to the vehicle owner to ask for compensation for damage caused including estimates for necessary repair work or bills if the work has been completed. The vehicle owner may choose not to claim on their insurance (although they should have notified the insurers of the incident) but prefer to pay for the damage directly to prevent loss of no claims discount.

If the property owner is unable to get the vehicle owner to claim from their insurers or pay for the damage on request it may be necessary to write pointing out that action may be taken in the Petty Debts Court if the matter is not resolved.

If the property owner is not insured, and does not know the vehicle involved in the damage, it is impossible for them to claim compensation.

Damage caused by a child

If a child causes damage to a vehicle, perhaps by riding into it when using a bicycle, the insurance company of the insured vehicle will seek payment from the parents of the child. They will be asked for details of their household insurance policy.  If they have no insurance they will be asked to pay for the damage themselves. If the parents have neither household insurance nor funds, the insurance company might seek repayment through Court but this will depend on the insurance company and the cost of the damage.  If the amount is small it might be written off as it would not be worth their while to pursue a small claim.

SGC Collision Solutions is based in Jersey and offers a bespoke Collision Investigation service to customers throughout the Channel Islands.  Their e-mail is info@sgccollisionsolutions.com and website https://www.sgccollisionsolutions.com/.