Paying the costs?

Two cases involving motorcyclists have recently been widely reported in the national media. The interest in the cases no doubt related to the unusual circumstances of the accidents and the tragic results.

The first case involved the death of a motorcyclist as a result of him losing control of his vehicle on a diesel spill. The second case involved an application to the Criminal Injuries Compensation Authority (CICA) for compensation for serious injuries sustained by a motorcyclist following a collision between him and a boy playing 'chicken' on a dual carriageway. The boy later died from his injuries. The media dealt with the public interest side of the cases and, as invariably happens, the legal aspects of the cases were either omitted or wrongly reported. This article is therefore intended as a very brief legal explanation of cases such as the aforementioned and as a guide for handling similar cases.

Diesel spill accidents

In his most recent and final edition of the Guide to Motor Insurers' Bureau Claims (MIB), the lawyer and author Donald Williams, refers to having personal knowledge that the profession is still not aware of the scope of the MIB Agreements. Williams was referring to the case of Conti v Hugh James (QBD, 12 May 2003, unreported) which related to a professional negligence claim against a firm of solicitors for its failure to consider and advise an application to the MIB. The accident circumstances involved a loss of control of a motorcycle on a large diesel spill, as a result of which the claimant sustained severe head injuries. Since that case solicitors are now much more aware of the potential for compensation in such accidents. However, late last month I settled two further similar claims. A summary of what is needed in order to succeed with a MIB diesel claim follows.

The basis for such a claim to the MIB is that, on the balance of probabilities, the fuel came to be on the surface of the highway as a result of a negligent act or omission on the part of an untraced road user. Such an act or omission is usually a deliberate overfilling or 'necking' of a fuel tank (in order to cut down on 'off-road' time) or the failure to secure the fuel cap, or even use a cap at all. For example, I recently saw a photograph of a commercial vehicle with a glove in place of a fuel cap. A driver with an overfilled or uncapped fuel tank sloshes fuel over the road under the pressure of braking or cornering and as a result fuel spills are commonly found on roundabouts or on sharp bends.

The MIB will not compensate if the fuel on the road surface is a gradual accumulation of oil. The MIB's internal claims handling manual states at section 5-10 that in the cases of large fuel spills, negligence (on the part of an untraced road user) can be inferred. There is no definition of a 'large'spill within the claims handling manual. However, the former technical director of the MIB, Mr Roger Snook, helpfully detailed what the MIB considers to be a 'large' spill in his witness statement in the Conti v Hugh James case. A spill is considered to be large if it required cleansing by, for example, the local authority. It is therefore essential to obtain the local authority's records evidencing that it dealt with the spill. Such documents will also alert one to when the local authority first became aware of the spill. It should be remembered that if the local authority knew of the spill but failed to take remedial action within a reasonable amount of time, it could find itself subject to a claim.

In addition to the standard police report which may or may not record the presence of diesel oil on the road surface (despite there being a specific box for completion if there is oil on the road) one should request the police incident log detailing communications between officers at the scene of the accident and headquarters. Likewise ambulance notes may refer to a spill.

Without wishing to sound too cynical, the level of dispute with the MIB over compensating victims of fuel spill accidents does appear to reflect the potential value of the claim. It is noticeable that the more valuable a claim the more the MIB will seek to dispute its liability. I am sure I remember being taught that issues of liability and quantum should be assessed separately. This point makes it even more important to undertake detailed investigations rather than relying on the MIB's own investigations. Of course costs payable under the 2003 Untraced Drivers' Agreement are minimal so perhaps the best way of funding such claims is by way of a contingency fee agreement.

It is important to remember not only the three year time limit for submitting an application to the MIB in respect of untraced driver cases but very importantly the 14 day time limit (or as soon as reasonably practicable) for obtaining written confirmation that the accident was reported to the police. A police incident number received from the police in writing and dated within 14 days of the accident is sufficient. At present property damage is not payable by the MIB in fuel spill cases hence I will not dwell on the usual five day reporting requirement, followed by application submission within nine months. Practitioners should note that the implementation this summer of the fifth EU Motor Insurance Directive will enable claims for property damage in such cases where there is a 'significant' injury. 'Significant' is not defined and is left for member states to define.

CICA and the 'chicken' case

A motorcyclist was seriously injured after he was in collision with a 12-year-old boy. The child died from multiple injuries after running across a dual carriageway and into the path of the motorcyclist during a game of 'chicken'. Whilst CICA has dealt with dangerous children's games in the past, it has never dealt with a case of 'chicken'. The success of this case will depend upon whether or not CICA accepts that the child's game of 'chicken' constituted a 'crime of violence'. It is not helpful that a 'crime of violence' is not defined within the CICA scheme. The natural definition is simply 'an act which causes injury' and the act need not be deliberate. The definition of a crime of violence will be key in this case but I suggest that if a highly dangerous, reckless and criminal act (which this was) causes injury, then it is a crime of violence.

The applicant had approached a few law firms before approaching my firm. Unfortunately, it appears that he was advised that there was nothing that he could do. It was perhaps a bit hasty to dismiss the case without fully considering all potential routes for compensation, as an arguable solution exists. It is widely known that most road traffic accidents are excluded from CICA claims but there is a strong argument in this case which, it is hoped, will lead to a successful outcome.

Does the CICA Scheme infringe Article 6 of ECHR?

In the case of C v The Home Office and CICA [2004] EWCA Civ 234, in which costs were sought from CICA (the costs claim failed), Sedley LJ left the door open to a future claim for costs in the right circumstances on the basis that CICA's Scheme may infringe the applicant's right to a fair trial under Article 6(1) of the European Convention on Human Rights because the scheme does not allow for the payment of costs for legal representation.

Without specialist legal advice the applicant in the 'chicken' case would never have known that he had a potential claim to CICA. Is a lay person really expected to know, without the help of a lawyer, that not only has he been criminally injured but that the criminal injury was also an (undefined) act of violence? In this case, even with the help of more than one law firm, the applicant was still unaware of his potential claim. The failure of CICA to pay costs is therefore arguably restricting access to justice in certain circumstances, namely the less obvious cases in which a lay person could not know that they may have a right to compensation. The question must surely be whether a basic right to representation is impaired. The outcome of this case will be interesting, both in terms of liability and costs.