The Forgotten Victims

Guest blog by RoadPeace member May Hamilton, bereaved after her husband was killed while cycling when a driver opened their car door in his path.

It is a matter of shame that, in our justice system, there are always victims of road traffic collisions whose fate is overlooked.  I would like to concentrate on one group of those, namely, the victims who are killed or seriously injured in car dooring incidents.

My Husband, Robert, was one such. On 23rd January 2014 he was riding his small shopper bike down a quiet residential street in Southport when Joanne Jackson opened the door of her Toyota Avensis as he was passing. He was hit on his left side by the outer part of the door and, in the words of the only independent witness, was sent “flying through the air”. He landed on his head and suffered traumatic injuries from which he died the same day.

Robert was 76 years old, and a very experienced cyclist who had ridden thousands of miles both in this country and on the continent. He had taken part in several charity rides for Marie Curie Cancer Care over the past few years including a 500 mile ride from Berlin to Warsaw. He also took part in charity rides to support the local Hospice. Only the previous summer he had ridden hundreds of miles in France with the French Cycling Federation, something he did annually.  His favourite means of transport around home was either his shopper or his road bike and he cycled virtually every day. He was no novice and knew his roadcraft . He was exceptionally fit and healthy for his age and expected to live at least another ten years.

Instead his life was cut short through the carelessness of a woman, who, when she appeared in the Magistrates. Court on a minor charge, and later at the inquest, showed not a shred of remorse, was thoroughly offensive  and arrogantly maintained that there was nothing she could or should have done differently.

She claimed to have checked her mirrors, looked over her shoulder, opened the door a fraction and very carefully before opening it fully. CCTV footage belied this and her assertion that she had not hit Robert was contradicted by the independent witness and by the inquest finding. The fact that she had hit Robert with the outer flat part of the door could only have meant that he was directly alongside her when she opened the door. If she had taken the trouble to glance to the side she would have seen him. Instead she tried to make out that she had done all the right things and did not know where he came from.

The Police carried out a thorough investigation but the stumbling block was the CPS with whom I had a very acrimonious battle. They refused to charge the woman with gross negligence manslaughter  saying there was “insufficient evidence”.

Because the car was not moving at the time, none of the road traffic offences applied. She was eventually charged under the Road Vehicle Construction and Use Regulations with opening a car door in such a way as to endanger someone. For killing my Husband she was fined just £200 with costs and received a six month driving ban.

There is only one case I know of where someone has been charged with manslaughter in similar circumstances. That is the case of Kennan Aydogdu who flung open the door of his taxi, which had blackened out windows, and hit Sam Harding into the path of a bus. Sam was killed instantly. Unbelievably a London jury acquitted Aydogdu even though there were independent witnesses.

The latest statistics I have found on dooring incidents date from 2013 when there were nearly 600 reports. Fortunately, most of the time, injuries are not serious, but there are times when they can be very serious, and, as in Robert and Sam’s cases, fatal.

Because these fatalities are rare and are not caused by moving vehicles they do not get the publicity that goes with dangerous or careless driving cases, but the impact on the families is just as devastating.

This is my horrific experience of one category of offences, but I am sure there are many other types of road crashes where the fate of the victim is sidelined. An insultingly trivial and hurtful charge, or none at all, may be brought against the perpetrator., or a pitifully inadequate penalty, if any, imposed, in what is a travesty of justice.

I was aghast to find out from RoadPeace that there are cases where a driver can be prosecuted for careless or drunk driving but not for causing the resulting death. These offences are crimes and must be treated as such.

I am glad that the MoJ is to finally review driving offences but it should be wider than the most serious offences.  There needs to be a wider consideration of charges and penalties, especially where a death has occurred. For cases like Robert’s, there desperately needs to be a change in the law to allow for a charge of causing death or serious injury through the instrument of a motor vehicle, whether moving or not, with a penalty equivalent to that of a serious driving offence.

It will take a very long time to bring about changes, but in the meantime I would urge victims and their families not to forget the possibility of taking a civil action for negligence against the perpetrator where the criminal law has failed to act satisfactorily.  It is only when insurance companies start to receive an influx of claims and drivers are hit in their pockets by increased insurance premiums, that things may start to change.

 

Fraud v. Whiplash

For the moment George Osborne’s reforms for whiplash injuries have been set aside by the government; however, the discussion around potential legislative changes and the commitment to reduction of the number and costs of whiplash claims remains on the Ministry of Justice’s agenda.  Meanwhile, the debate between insurance companies and solicitors remain – is the issue actually fraudulent claims?  What about the rights of the injured victims?

The proposed reform removed the right to general damages (this is a head of damage referred to as a non-economic damage and provides compensation for injuries such as pain and suffering and emotional distress) for minor soft tissue claims and transferred any personal injury claims with a value of up to £5,000 in general damages to the small claims court.   The reasons behind this reform can be summarised as the nationwide requirement for the reduction in both fraudulent claims and motor insurance premiums.

If the issue truly is fraud, let’s take a brief look at the statistics surrounding the data that is available. The Association of Personal Injury Lawyers (APIL) notes that the fraudulent statistics are both inconsistent and incorrectly assessed.  When referring to the total fraud bill in 2015, the Insurance Fraud Task Force includes ‘detected’ fraud in their total of £1.3 million.  Compared with the statistics of the Association of British Insurers (ABI) in 2012 that note only 7% of motor claims were fraudulent.  APIL argues that when separating fraudulent claims and motor vehicle claims, not only is there a clear representation of lower proven fraud, but also that ‘detected’ fraud should be defined as what it is: unproven fraud.

In their news release dated October 13, 2016 ABI does not mention the issue of fraud and discusses at length the requirement for this reform to “tackle the excess of the compensation culture” and to save billions (£4 billion over the court of Parliament) in premiums.

APIL discusses the purpose of general damages is to compensate for the most ‘devastating aspect of any car crash’; the personal injury.  The damage to your car or the car itself can be replaced, whereas personal injury and the loss of enjoyment of life, no matter the size, leaves as lasting effect of the daily life of the victim.

This reform affects the victim on many levels.  From the issues of the compensation being a right for every injured individual, access to justice and the Rule of Law, to lack of representation in the courts the bottom line is that this reform could leave the already vulnerable person at risk.

We have attached various articles for your reference.  While the reform has been set aside, the issues are still relevant and as suggested in the law gazette, maybe this is the time for an independent look at the information and statistics and for the solicitors and insurers to come together to address fraudulent activities and to ensure the rights of victims remain enshrined in today’s common law.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/truss-drops-osbornes-whiplash-baby/5058290.fullarticle

http://www.lawgazette.co.uk/analysis/comment-and-opinion/heres-how-id-tackle-the-whiplash-culture/5058083.article

https://www.abi.org.uk/News/News-releases/2016/10/Ministry-of-Justice-delays-to-whiplash-reform-cost-motorists-nearly-3m-a-day

https://www.apil.org.uk/files/campaigns/government-proposals-to-reform-low-value-personal-injury-claims.pdf