Cycling Hit by Car: What To Do?

If you are a cyclist and hit by a car in Western Australia, you may be entitled to compensation from the Insurance Commission of Western Australia (ICWA). ICWA is the compulsory third party (CTP) motor vehicle insurer of the car driver. This article explains how to claim compensation for a cycling accident from the CTP insurer.

 

What happens if a car hits a cyclist?

If a car hits a cyclist, the cyclist is more likely to get hurt than other road users.

When cyclists are injured in a motor vehicle accident, they often sustain more severe injuries. This has been acknowledged by legislation in Western Australia, and severe penalties have been introduced for not driving a safe distance away from a cyclist.

To make the situation worse, if the injured cyclists make a compensation claim, the insurance company often allege that the cyclist was partially at fault for causing the accident. Again, this is because liability is harder to prove in a cyclist versus a car accident.

If you are injured in a car hitting cyclist situation, it is vital to obtain legal advice from a personal injury lawyer about your legal rights and legal options. This is particularly important if the insurance company denies liability, refuses compensation or reduces your personal injury claim payouts.

Who is at fault if a bicycle hits a car?

In a car hitting cyclist bicycle accident, it is often unclear whether the car driver or the cyclist is at fault. In determining who was at fault, the ICWA looks at the accident scene, motorists involved, the cyclist, and other road users. Suppose the insurance commission determines that a motor vehicle driver was at fault for causing the cyclist’s injury. In that case, they will usually pay expenses associated with the injury. In addition, the cyclist may obtain a lump sum payment at the end of their claim, depending on the extent of their injuries.

Some everyday situations include:

1. A cyclist is riding along a bike path, and the driver coming out of a driveway does not notice the cyclist’s presence on the roadway. In this scenario, the driver would be at fault as they failed to keep a proper lookout and give way to the cyclist.
2. A cyclist is riding along a road or on a road bike path, and an oncoming driver flips the cyclist whilst overtaking the cyclist. In this scenario, the driver would typically be at fault for overtaking unsafely and failing to keep a proper lookout for the cyclist.

Can a cyclist claim against a car?

A cyclist can claim against a car in a car accident if the driver is at fault or partially at fault. However, if the accident happened during the course of your employer, then the injured cyclist can claim workers’ compensation regardless of who is at fault.

The bike rider must first report the accident to the police to make a claim. If the police do not attend the crash scene, then the accident can be reported through crashreport.com.au. The injured cyclist will also need to make a claim with the insurance commission of Western Australia by filling out a Notice of Intention to Make a Claim Form.

Once the motor injury claim is made, the insurance company will investigate the bicycle accident based on information provided in the accident report and other evidence regarding the incident and determine who (if anyone) was at fault in causing the crash.

How likely is it to get hit by a car while cycling?

Cyclists are considered vulnerable road users in Western Australia. In the 2021 financial year, ICWA paid 28 million dollars to cyclists injured in a motor vehicle accident in WA. This is equivalent to 6% of total motor injury payments made in that year.

According to the RAC road safety snapshot, in 2017, seven cyclists died, and in the five years to December 2016, there were almost 600 cyclists killed or seriously injured in Western Australia.

How is injury compensation calculated?

Injury compensation is calculated based on the severity of the initial injuries sustained, any residual symptoms/disabilities that the injured person has, how the injured person’s life has been affected and losses suffered by the injured person. These losses may include past and future loss of earning capacity, past and future medical expenses, and past and future assistance that has been required by family and friends with the activities of daily living. For instance, if a cyclist is involved in a horror crash and becomes a paraplegic. As a result, the person has difficulty caring for themselves, and they cannot return to the physical work they were doing before the accident. The claim may easily be worth over $1 million.

How much is a personal injury claim worth?

Particulars of Damages sets out how much a personal injury claim is worth

There are no fast rules on how much a personal injury claim is worth. This needs to be carefully considered based on your injuries, the amount of medical attention you may need, your age, your loss of income, and a few other factors. If you engage a personal injury lawyer, how much is a personal injury claim worth is often set out in a document called “particulars of damage” prepared by your personal injury lawyer after a comprehensive review of all evidence.

A personal injury settlement is a negotiated amount

It is often the case that the plaintiff and the defendant have very different views on how much a personal injury claim is worth. As a result, the actual personal injury settlement is often a negotiated amount between the parties.

A pre-Trial Conference is an opportunity to settle a personal injury claim before trial

Generally, all parties to a personal injury claim will attend a settlement conference required by the court, called a pre-trial conference. At the pre-trial conference, the defendant may point to medical evidence, such as your past medical history, or medical reports, which indicate that you have recovered from your injury, you had a pre-existing condition, or your injury is not all that bad. Your personal injury lawyer will use the evidence we collected to counter the defendant’s point of view. It is usually the situation that which several offers are exchanged.

A judge will determine the personal injury settlement amount at trial

If the matter is not capable of settlement at that time, the case will proceed to a trial where a judge will listen to you, and assess how much your claim is worth based on the witness information provided, and the medical documentation provided.

How is pain and suffering compensation calculated?

In Western Australia, the Motor Vehicle (Third Party Compensation) Act 1943 states that “non-pecuniary loss” includes:

• pain and suffering;
• loss of amenities of life;
• loss of enjoyment of life;
• curtailment of expectation of life; and
• bodily or mental harm.

The amount of damages to be awarded for non-pecuniary loss is awarded by reference to a maximum that can be awarded (amount A) which is currently $438,000 (in the 2021 – 2022 year). This amount can only be awarded in the most extreme case, which would usually include brain damage or quadriplegia.

There is also a threshold amount (amount B) which is currently $23,000 (in the 2021 – 2022 year). If the amount of non-pecuniary loss is assessed at amount B or less, then no damages are payable for non-pecuniary loss.

Does car insurance cover bicycle accidents?

Motor vehicle damage insurance includes third party cover and fully comprehensive cover. Both types of motor vehicle damage insurance will pay the cost of repairing a bicycle damaged as a result of a motor vehicle accident if the driver of the motor vehicle was at fault.

If the person riding a bicycle is injured as a result of a motor vehicle accident, then the insurance commission of Western Australia will usually pay for loss, injury or damage incurred by the cyclist, so long as the car driver was at fault in causing the injury.

What happens when a bicycle hits a car?

If a bicycle hits a car, and the writer of the bicycle is at fault, then the cyclist will be liable to pay the car driver compensation for any damage to the car as well as for personal injury.

What do you do if someone hits your bike with their car?

In a car hitting cyclist motor vehicle accident, it is often unclear whether the car driver or the cyclist is at fault. It is important to obtain photographs of the bicycle accident, after it happened, and obtain the contact details which should include the name, address, phone number and email addresses of any witnesses involved. The name and registration number of the car driver involved should also be obtained.

Are cyclists liable for damage?

Bicycles are not motor vehicles and are therefore not covered by the compulsory third-party motor vehicle scheme in Western Australia. This means that the cyclist may have to pay these costs themselves unless they have another policy of insurance that covers their liability.

What should I do if I hit a car with a bike?

Whether you are at fault, or the car is at fault, similar principles apply. If you hit a car with a bike, then you should take photographs of the damage to the bike, and the damage to the car. This is useful from both a personal injury and a vehicle damage perspective. Photographs of the bike and the car help to give some insight as to the severity of the accident, and may also be useful if a person inflates the claim for vehicle damage sustained as a result of the traffic accident.

Foyle Legal Motor Vehicle and Cycling accident Claim Lawyers

Foyle Legal operates in the area of motor vehicle accident injury compensation. We can provide advice about your legal rights and legal options following a cyclist versus motor vehicle accident, or any other kind of motor vehicle accident. Foyle legal can also talk to you and advise you about how much your claim is worth. At Foyle Legal, we assist injured people on a no win no fee basis, and your first attendance is obligation free. You can contact legal on 0408 727 343. We look forward to hearing from you.