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.
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.
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.
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