If you have suffered an injury whilst driving a car, or as a passenger in a car, you may be liable to make a claim against the person responsible for your injury *. On this page you will find advice on how to instigate a car accident claim *.
Instigating a Personal Injury Claim Following a Car Accident
Of the various types of traffic accidents occurring on our roads, car accidents tend to be most common by virtue of the sheer volume of cars on the road. Even within this category, there are many different categories of accidents and ways in which these accidents can arise.
If you are the driver of a car involved in an accident, obviously the accident has to be somebody else’s fault before you may have any claim in negligence. The fact that you were injured in a road traffic accident in and of itself doesn’t entitle you to be compensated.
If you’re a passenger in a car being driven by someone else, then, generally speaking someone else is almost certainly likely to be responsible for the accident. If it’s a one car collision, a passenger’s first port of call will be the person responsible for the vehicle that they were in. If there are two vehicles involved in the accident, then the passenger will have to consider pursuing both the driver, and possibly the owner, of the vehicle that the passenger was in and the driver and owner of the other vehicle.
Safety belts are a serious consideration and anyone travelling in a vehicle will be expected to be wearing a seat belt for their own protection. Not wearing a safety belt does not necessarily prevent you from taking a claim but it does mean that you will be liable to a claim for contributory negligence, i.e. for having being negligent yourself by not doing something that you should have done and which contributed to the severity of your injuries as a result. While there is no fixed figure, a finding of contributory negligence for failing to wear a seat belt can lead to a reduction in award of in the region of 30%.
The duty to wear seat belts applies to all seats in the vehicle, back or front. In the case of children who are not properly secured, either wearing appropriate seat belts or seated in appropriate care seats, then obviously where a child is not sufficiently mature to take responsibility for their own safety, they will not be exposed to a claim of contributory negligence.
And while, of course, any responsible adult is going to take appropriate steps to ensure the safety of a child in a vehicle in any case, it is also worth considering that an adult responsible for transporting a child in a vehicle who fails to take the necessary steps to ensure their safety such as securing them by appropriate seat belts or car seats suitable for their height and weight might also be exposed to a claim by any third party found liable for injuries to that child because the person responsible for transporting the child had failed to take the appropriate steps to secure the child safety and that in turn contributed to and exacerbated the seriousness of the injuries suffered by the child.
Material/Property Damage Claims
In terms of the material damage element to the vehicle itself together with any claim for loss of transport etc. this is usually going to be dealt with initially at an early stage and you’ll generally find that the property damage element is taken care of directly by the insurance company of the driver responsible for the accident.
While there is no legal obligation to notify An Garda Siochana of an accident, if the gardaí attend at the scene and any party involved in the accident has suffered personal injury then the gardaí will be obliged to breathalyse all of the drivers involved and obviously if anybody has consumed alcohol or any other kind of intoxicant that would have an impact on potential liability. Apart from that, there’s no obligation to notify the gardaí if both parties are satisfied that it is not necessary and the parties agree to exchange details.
A very important point to remember is that it is an offence to leave the scene of an accident without exchanging necesasry contact and insurance details and therefore you should ensure that you do not leave the scene without the consent of the other party. While you are not obliged to notify An Garda Siochana, if there is a dispute about who is to blame, it’s always wise to do so because they will come out, they will take measurements, they will take statements and the evidence recorded by the gardaí at the scene may be pivotal in determining liability.
But if there’s a situation where there’s a clear liability in terms of who is at fault for the accident, like a rear ending, if both parties are able to leave the scene without emergency assistance then there’s nothing precluding them from just exchanging their details and dealing with it at a later stage after they’ve gotten appropriate medical attention, there’s no reason why all parties can’t just do so by agreement between themselves.
It’s important to go to your doctor immediately after the accident just so that they can take a contemporaneous note and you can get any treatment that may be required. It is always very helpful to have that initial account of the way that the injuries affected you, even though it may be the case that they won’t have manifested fully for several days afterwards, which is common in the case of soft tissue injuries.
In the immediate aftermath of a car accident, the most important consideration is the safety of everyone involved and the safety of other road users. It will be important to ensure that, if necessary vehicles are moved so that they are not at risk of causing another accident.
However, where there is any question about liability for the accident, to the extent that is possible to do so, you should try to maintain the scene of the accident in the way that the accident occurred until it has been properly recorded by members of An Garda Siochana if they attend at the scene. If there is likely to be a dispute about liability and if it’s a significant accident, you should consider getting an engineer out to record and take photographs of the scene of the accident as soon as possible after the accident has occurred. While obviously you are unlikely to be able to get an engineer to the scene before vehicles are moved, there may be evidence such as skid marks, oil, debris and glass on the road, etc. for a short period after the accident which could make all of the difference in being able to prove who is liable for the accident or not. Taking photographs at the scene with a smart phone before anything is moved may also be of benefit in reconstructing what occurred after the event.
After the safety and welfare of everyone involved in the accident has been attended to, the most important thing to be done at the scene of the accident is to get the vehicle registration and insurance details of the other driver. Vehicle registration is particularly important because even if the person who was driving the other vehicle won’t divulge information or provides incorrect information, ultimately the person who owns the vehicle will be liable and this information can be obtained from the vehicle registration authority.. Accordingly, just write down or take a photograph of the licence plate number of the other vehicle. Also, write down the insurance details of the other vehicle from the tax disc displayed on the windscreen of the other vehicle or take a photograph of the disc.
Even if it’s the case that the other driver was not properly insured or indeed if the other vehicle left the scene of the accident before you were able to obtain any details of the other vehicle or the other driver, you will still have a cause of action against the Motor Insurer’s Bureau of Ireland (MIBI). Of course, if you find yourself in a hit and run situation and the other driver left the scene without providing you with any details, that is a criminal offence and An Garda Siochana should be notified immediately and asked to attend the scene and commence and investigation. While any criminal investigation will have to take its course and you will not have any direct control or involvement in this, you will be in a position to commence civil proceedings against the MIBI in the meantime, even if the other driver or vehicle owner was not insured, or if you are uable to say who the other driver or vehicle owner was.
As with any accident causing personal injury, you have an obligation to notify the party you believe was responsible of your intention to bring a claim for the accident within 30 days of the accident occurring. In the case of an uninsured driver you will need to notify the MIBI within that 30 day period.
In cases involving the MIBI you will need to name the driver of the other vehicle as well as the MIBI, if you are aware of it. There are restrictions on what can be recovered in terms of material or property damage to your vehicle and you will have to make medical reports available to the MIBI and co-operate with them and the gardaí reasonably in the subsequent investigations of the circumstances of the accident. Apart from that, any claim involving the MIBI claim is treated in a similar fashion to any other road traffic accident.
Is there anything in particular around the interaction of any kind of criminal prosecution that might arise for driving without insurance or road traffic offences and the personal injury claim that may arise from it?
Any criminal investigation or prosecution that may arise as a result of the accident will be separate from any civil proceedings that you may bring as a result of the accident and one will not impact on the other unless, say, there were to be an admission of guilt on the part of the driver in the context of a careless or dangerous driving prosecution that gave rise to the claim. Otherwise, whether or not somebody is prosecuted for driving without insurance or whatever won’t have any impact on your entitlement to be compensated for any injuries suffered by you as a result of the accident.
And what about notifying your own insurance company?
Even if it’s the case that it’s obvious that you have no blame whatsoever, it’s generally prudent to contact your own insurance company and make them aware of the fact of the incident, as they may wish to carry out investigations. For instance, say for the sake of argument that a third party claims afterwards that they were somehow injured a passenger in the other person’s vehicle and claims that you were to blame even though it’s obvious liability falls on their side, you want to make sure that your insurance company doesn’t have any basis for saying that they have no obligation to indemnify you for a failure to notify them of the circumstances. You should make them aware that you’re not actually liable for the accident if that’s the case. If there’s damage to your vehicle it’s usually unwise to recover it through your own comprehensive insurance, because that will be a claim on your policy, irrespective of the fact that ultimately you’ll be reimbursed by the other party’s insurance company. So generally it may take longer and be more frustrating but you should not claim off your own comprehensive policy and instead should pursue the other driver’s insurance policy exclusively.
What about offers of assistance or payment and so on by the third party insurance company? Are you prejudicing any claim that you might have by having them pay for vehicle replacement?
Vehicle replacement and repair is always done at a relatively early stage before you actually get to the point where you can lodge an application for assessment of damages for your injuries. So there’s no difficulty whatsoever on negotiating on the material damage to the vehicle side of things and dealing with the personal injuries claim later on. You’ll generally find that they’ll make an offer and it is a matter for negotiation in arriving at what is acceptable to you by reference to the actual value of the damage suffered. If the vehicle was worth repairing, it may simply be a case of the other party’s insurance company paying the repair bill. Even where the other driver’s insurer pays for the repair of your vehicle in full, you will not recover the amount of the depreciation that your car will have suffered as a result of having been in a collision.
If there are other matters arising such as car hire for any period that you were without a vehicle, it would be prudent to agree what level of this the insurance company will cover before incurring the expense in order to avoid finding yourself unexpectedly out of pocket later. If the car is written off in all likelihood you will find that the insurance company will make an offer for the vehicle which will not actually be compensation for the full pre-accident value of the vehicle but the difference between what they’re offering and what you might be entitled to get is likely to be such that it’s not actually worth litigating the matter. Material damage claims are rarely the subject of legal proceedings in practice and the personal injury claim will stand on its own.
What you do want to be careful of is where the claims handler or loss adjuster dealing with the case on behalf of the insurance company become ostensibly friendly and starts suggesting that they want to get you back on track, that they want to pay for your physio, they want to make sure that you’re compensated quickly and without any hassle, etc. Often they’ll come to you, try to develop a relationship with you and they’ll suggest that they’ll make you an offer which is very attractive and that you’ll get the cheque the next day.
This type of situation often arises in the immediate aftermath of the accident where someone doesn’t realize that they’re as badly injured as they are, or that they’re going to be out of work for as long and they are unfamiliar with the claims process or the full extent of what may be required, and what they may be legally entitled to, to fully compensate them for the injuries that they have suffered. If, in such circumstances, you accept an offer to settle the case in full and final settlement of the claim there may be no way of actually overturning that afterwards.
There’s nothing wrong with dealing with the property side of things quickly and directly with the insurance company. You should just to be careful that they don’t then try to use that as a way of abusing your good will and maybe lulling you into a false sense of security that they’re on your side.
Sometimes the insurance company for the other side will offer to discharge your medical expenses as they arise, but it is vitally important to ensure that it is made clear in writing that this is being done by way of payment on account of what is due to you only and not as any offer in full and final settlement. There’s nothing wrong with them paying for your physio and medical or other out-of-pocket expenses as they arise provided that it’s made very clear that you do have a separate claim for damages which will follow.
Where this can get tricky is understanding exactly how to deal with that, particularly for someone who is not involved in these situations on a regular basis. It seems to be something that some in the insurance industry actively go about encouraging and it can be very confusing to people as to how to manage that process properly. You just need to be very careful to ensure that any subsequent claim for personal injuries is not being prejudiced or compromised by any offer or advances being made by the insurance company.
If you’ve got private health insurance (such as with Vhi Healthcare, Laya or Irish Life Health) and if you’re claiming on that policy for medical expenses incurred as a result of the accident then you do have an obligation to reimburse your private health insurer for that if there’s somebody else liable for your injuries and you recover those medical expenses subsequently. So if you’re getting treatment for pain relieving injections or physiotherapy or anything like that which has been paid for by your private health insurer then you have to make sure that you find out how much you owe your insurance company, include this sum in your claim, and pay them back when you recover it as part of the special damages on any personal injury claim.
About McCarthy + Co
With more than 25 years of experience in dealing with personal injury claims *, McCarthy + Co. has expertise in a wide variety of fields including workplace and road traffic accidents. We are a family-run business, who pride ourselves on offering honest, impartial and helpful advice.
Our offices are based in Dublin and Cork but we have worked with clients throughout Ireland in locations ranging from Galway to Waterford. You can count on us for legal advice, guidance and assistance on any form of personal injury *.
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Flor McCarthy is one of Ireland’s leading lawyers, certified by the Law Society of Ireland in Data Protection Practice. He was chosen as Munster Solicitor of the Year at the Irish Law Awards in 2018. Flor completed his Masters degree in law at University College Dublin. [Read More]
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John specialises in personal injury and medical negligence claims. His practice focuses on high value compensation cases. He has extensive experience in this area of litigation for over 10 years. John has acted in a wide variety of personal injury, wrongful death, property damage, medical negligence, defective product, professional negligence and judicial. [Read More]
Get expert advice on instigating a car accident claim today, by contacting our highly experienced solicitors. Call us on 1800 390 555 and an experienced member of staff will discuss your situation and potential next steps. You can also email on email@example.com and we will get back to you as soon as we can.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.