Author: Bike Social's Travel Law Expert Posted: 24 Apr 2014
We asked a bike-friendly solicitor from Minster Law to gives us the low-down on what you should do if you're involved in an accident whilst riding abroad and why travel insurance is often overlooked.
Part 1: Travel Insurance; what its really for
As the summer approaches you may be planning to take your bike over to Europe to tour on your own or with a group or club. When you do it is all too easy to overlook one of the basic arrangements you would make when planning a more traditional holiday; travel insurance. It's often offered at the point of sale or you are reminded by link from a website when you book online. Many motorcyclists making independent travel arrangements tend to focus on their motor insurance and check the extensions of cover for using their bike in Europe.
The problem is that all the cover that goes with travel insurance can seem unimportant in the context of an independent bike tour. You can be forgiven for thinking, do I really need baggage loss cover, cancellation and curtailment cover and schedule airline failure cover? You will find all of these as standard in most travel insurance. All these things are useful to have but perhaps seem more suited to a more traditional holiday. But the real benefit of a travel insurance policy and the bit that makes up most of the cost is none of these things. It is medical cover.
There still seems to be a common belief that through reciprocal arrangements with other EU states, our NHS system entitles you to at least a basic right to free medical treatment in Europe. Perhaps this is just a cultural thing for us. We are used to free medical treatment no matter what.
It's true that if you have an accident or fall ill in Europe you can access either some free or reduced cost medical treatment with a free European Health Insurance Card (EHIC). You can apply for this on the NHS website which has lots of useful information as to what is and what isn’t covered state by state. The countries covered are a little wider than the European Union member states so it is worth having a look to see if where you are planning on going is covered. For example, the cover extends to Switzerland which is not an EU member state.
The EHIC is something you should have and, indeed, some insurers insist that you do but it is important to understand its limitations. It is not designed to be an alternative to travel insurance medical cover and is there to provide treatment that will just allow you to continue your stay up to the point where you had arranged to return to the UK.
The first point is that even with an EHIC the care provided is not always free or the care that is, is limited. Subject to any excess or exclusions, good travel insurance should cover all your costs. The second point is the limit in its scope. There is no provision for private medical treatment, some rescue services and repatriation costs.
I’ve seen some real horror stories with this last item. After a serious accident or illness abroad often the greatest wish of the patient and their loved ones is to get home. Where this is medically possible it can sometimes only be done with an accompanying nurse or doctor. In some cases a fully crewed Air Ambulance is needed. The cost of these services can be enormous and I’ve seen cases where a family has faced a prolonged impact on their finances to fund a repatriation. Being with an insurer has the added advantage of their access to the right experienced people and services through their Assistance Company.
A word about travelling further afield than Europe and hiring your bike when you arrive. Again, it is easy to focus on arrangements for motor insurance which will usually be offered to you at the point of sale for the hire. It is important to remember the EHIC is not valid outside of the European Economic Area countries and this brings the importance of having good medical cover with your travel insurance to the fore.
In the USA, for example, the most straightforward of medical treatment can be very expensive and anything serious will be well beyond the means of most people. For less well developed countries the standard of medical care available may not be what you are used to, emphasising the need to get home for treatment. For far flung destinations, again, the cost can be huge and the arrangements extremely stressful in an already difficult situation.
So, the message is clear. Take out travel insurance. It’s easy to get and it’s cheap.
Part 2. Bike Accidents, Compensation Claims and European Law.
Over the years, I’ve handled dozens of cases for bikers injured in accidents in Europe and other parts of the world. Nothing will be further from your mind when planning and booking your trip but when an accident does happen, the fact that it happened abroad can throw up some complications when seeking compensation for your injuries.
The good news is that in recent years it has got a lot easier, at least in Europe. The old rules of Private International Law required you to pursue your claim through the courts and legal systems of the country where the accident happened or the country where the driver at fault lived. So, if you were knocked off your bike and injured in France by a Belgian driver you had the choice of pursuing your claim in Belgium or France. The cost, language barriers and sheer practical difficulties of pursuing such a claim often made either option unattractive. It was only in unusual circumstances that the claim could be brought in the biker’s home UK court.
Driven by a desire to harmonise the claims experience for all Europeans involved in road traffic accidents, there has been a plethora of EU Regulation, International Convention and decisions of the European Court of Justice. In part, this activity has worked but the UK biker injured in Europe through the fault of a foreign driver still faces some difficulties that he or she would not face in a UK accident.
The most important development is that, as a general rule, the UK motorcyclist can now bring their claim in the UK directly against the insurer of the foreign driver at fault, in his home UK court. This is greatly helped by a regime, set up and codified in various European Motor Insurance Directives, that is able to identify a foreign insurer through the Motor Insurer’s Bureau (MIB) in the UK just by provision of a registration number for the foreign vehicle. In default of this information being provided, the accident victim can pursue his compensation claim directly against the insurance guarantee fund in his own country; in the case of the UK, the MIB. The Directives also compel all European insurers to appoint a Handling Agent in every other member state who are there to deal with you and your legal representatives in your own language and act as a go-between with the foreign insurer. The idea behind this being to level the playing field between a private individual and a powerful insurance company.
So far so good but a complexity remains that can add delay and difficulty to any claim. Although you, as a UK citizen involved in a motor accident in Europe, generally have the right to use your own local court to resolve your dispute, the law that the court applies will usually be the law of the country where the accident happened. This can create a difficult and perhaps slightly bizarre situation where an English judge sits in judgement on a case but decides it under French, German, Spanish or some other European legal system. Whilst we do have moves towards harmonisation of some rules and procedures across Europe in this type of situation what we emphatically do not have is one European legal system.
The courts have been wrestling with these new rules recently. In some ways, it can be like trying to force a square peg into a round hole and the courts have had to be creative. The borders between harmonised procedures and the application of a foreign law can be a little blurred. For example, how do you assess the compensation awarded for care and medical treatment to be received in England under Spanish law which takes no account of the work the NHS does or how care is costed and executed in the England? Spanish compensation is mostly based on pre-set formulas and tables which can seem to have little bearing on the realities of a care regime in the UK. The courts, insurers and lawyers are struggling to resolve some of these issues now and it may still be some time before matters are fully settled.
A more straightforward application of foreign law can arise when fault or liability for the accident is disputed and a decision has to be made. Here it will unambiguously be an application of the rules of the road in the country where the accident happened. If you are injured in an accident in France, the other driver who may have been at fault and caused the collision will be judged, as will you, on compliance with French standards. This can include speed limits, rights of way and compliance with instructions on road signs. This seems only right and natural as it would be odd indeed to impose the duties on the UK roads on a driver on the French roads.
One final thing you do need to be aware of is that there will be a time limit for bringing your claim. These vary greatly between countries. The time limit can be a short as 1 year in some countries and as long as 10 years in others but the best advice is not to delay at all and seek advice as soon as you can.
Part 3. Practicalities and Precautions if you have an accident
If you are unfortunate enough to have an accident there are one or two things you would do well to think about. Obviously, in a more serious accident where you have been badly injured, you will be in no position to act on anything at the scene of the accident but even then there are things that come up in the following days or whilst you are in hospital.
One common feature of European road traffic accidents is the European Accident Statement (EAS) form. This is a standard printed form on one side of paper usually with a carbon copy. You will see it with various titles across Europe although the form layout is the same. In France, for example, it is known as the Constat Amiable D’Accident. This document is designed to record, at the scene of the accident, the basic details of the drivers involved such as name, address, insurer and registration. It also provides space for a sketch map showing how the accident happened. The idea is to provide information between those involved and, if possible, agreement as to how the accident happened. You will find many European drivers carry these documents with them in their vehicles even though it is not a legal obligation to do so or complete it. It is worth carrying one yourself and they can be obtained from your insurer or broker before you travel.
Although not legally binding, the EAS is compelling evidence in any subsequent dispute as to who was at fault. It goes without saying, that if you don’t agree with the other driver, don’t understand because of a language barrier or things get heated, you should not sign or complete the sections on how the accident happened. It is still, however, a good idea to exchange basic information with the other driver. If practical, you should also;
Clearly, in more serious accidents where the police attend much of this should be taken out of your hands but don’t assume this information will then be readily available. It is often remarkably difficult and expensive to get a foreign police report. If you have taken basic details yourself this could be a great help.
It goes without saying that you should co-operate with, and be respectful of, the local police if they attend the scene or visit you in hospital no matter how angry you are about the accident. In certain parts of the world, there may be a tendency for the local police to favour local drivers and this will be compounded by any language barrier. You do not wish to make your troubles worse by adding an arrest to your problems.
If you are arrested it is important to be calm and patient. In all but the most serious of circumstances you are unlikely to be detained for more than a few hours but you may face some delays and more bureaucracy than you would be used to in the UK. You may then be summonsed to appear in court or pay a fine and so may need to seek legal advice. If you are detained for any length of time you should be assertive enough to request advice from a local lawyer or access to the British Consul. You may need to pay for local legal advice and this is unlikely to be covered by your travel insurance.
About the contributor: Andrew Morton is a Solicitor with Minster Law with over 25 years experience and practices exclusively in cross-border claims and accidents abroad and has handled cases worldwide. He is a member of the Travel & Tourism Lawyers Association and the Association of Trial Lawyers of America. So we trust what he says.