Four things to do if you are involved in a traffic accident
According to data from the National Police Agency’s Traffic Bureau, there were 499,201 traffic accidents in Japan in 2016. As the number of traffic accidents increases each year, it shows that there is a possibility you will be involved in an accident no matter how carefully you drive. So, what should you do if you are involved in an accident? I would like to introduce the actions you should take if you are involved in an accident.
Problematic points in traffic accident cases
Most traffic accident cases are resolved through private settlement between the insurance companies of the two parties, or between an insurance company and the other party to the accident. Naturally, it is difficult to resolve the matter through private settlement when there is a large discrepancy in the parties’ assertions regarding the cost of damage or the attribution of liability, so the special provision contained in insurance contracts regarding lawyer’s fees is often used to consult with or engage a lawyer.
A large discrepancy in the parties’ assertions regarding the attribution of liability is caused by the parties having very different perceptions about the circumstances of the accident. It is sometimes possible to ascertain the circumstances of the accident from the damage suffered by each vehicle, but sometimes a determination cannot be made based on damage alone (particularly in the case of head-on crashes where one car has crossed to the other side of the road). In this case, the court will decide whose assertions are correct, but it is difficult for a judge to ascertain who is lying (or whose perception is incorrect), so objective evidence that supports the assertions about the circumstances of the accident is important. Also, when there is objective evidence the opposing party may recognize the high possibility of losing if the matter goes to court, so they may accept a settlement to resolve the matter quickly.
How is the attribution of liability determined?
The attribution of liability is determined based upon the circumstances of the accident. For typical head-on collisions at traffic intersections, the attribution of liability for each type of accident has been collated in a book called the “Bessatsu Hanrei Times”. Even in court judgments this book is used as the standard, with the final attribution of liability being decided after adjustments for the particular circumstances of the accident.
As the circumstances of the accident are important to the attribution of liability, being able to record the conditions immediately after an accident occurs is important.
Things to do after a traffic accident
- Always report to the police
Because waiting for the police to attend takes a lot of time for an accident involving minor property damage, some people will try to resolve the matter by discussing it amongst themselves without calling the police. But this is unadvisable so please always report an accident to the police. Even if you discuss the matter and think you have reached an agreement with the opposing party, disputes often arise later, such as receiving a claim for expensive repairs or a claim for medical bills because the other person actually suffered an injury. Also, even if you do not feel any physical pain immediately after the accident, you may start to feel pain in your neck or elsewhere several hours later, so please do not try to reach an easy agreement with the opposing party immediately after the accident. Reporting to the police is required by the Road Traffic Act, and failing to do so carries a maximum penalty of 3 months’ imprisonment with labour or a 50,000 yen fine (Article 19 of the Road Traffic Act).
Also, your insurance company will request the submission of a “Koutsu Jiko Shoumeisho” (Traffic Accident Certificate) if you make a claim for the cost of repairs. This certificate is prepared by the police, so of course it will not be made if you do not report the accident to the police.
Therefore, because several negative effects arise from not reporting a traffic accident to the police, please be sure to make a report regardless of whether you are at fault or the innocent party.
- Take photos of the accident scene
Photos of a traffic accident can objectively show the accident’s circumstances and can be used as evidence. Particularly in the case of a car crossing to the wrong side of the road, photos taken immediately after the collision are important because it is difficult to determine which car crossed to the wrong side based solely on the damage to each car.
Naturally, it may be difficult to take photos of the scene because of feeling distressed immediately after an accident and the need to move the cars so that they do not block other traffic.
Photos of the accident scene that objectively show the circumstances of the accident will reduce the possibility of a dispute with the opposing party, so taking as many photos as possible of the accident scene with your smartphone is recommended, for example when there is not much traffic around or traffic can flow even if the cars are not moved immediately.
Also, even after moving the cars, you should take sufficient photos of the immediate damage to your car and the opposing party’s car. Photos are normally taken by the insurance company, but it is better to have more, as it is not impossible for new damage to occur after the accident.
Also, don’t forget to take photos of the condition of the road. Tyre skid marks and gouge marks (marks left by a part of the car other than the tyres making contact with the road) can disappear surprisingly quickly, so it is important to take photos of them. Further, if you take the photos on a later day there is a risk that the opposing party will claim the marks were caused by a different car. It is also possible to infer where the cars made contact based on debris that has fallen to the road, and other conditions such as the condition of the road, lighting at the scene, etc. may become important factors later. The conditions at the time of the accident can only be taken at that time, so please be sure to always take photos (of course this does not apply if you are injured and cannot move).
- If there is an injury, always report it as an accident involving physical injury, even if the injury is minor
When a traffic accident occurs, the police officer will ask whether to submit the report as a property damage accident or an accident involving physical injury. If you feel even the slightest pain at that time, you should report the accident as involving physical injury.
This is because there is a large difference in the documents prepared by the police officer depending on whether the accident involves property damage or physical injury. For a property damage accident, a document called a “Bukken Jiko Houkokusho” (Property Accident Report) that describes the circumstances of the accident in simple terms will be prepared. In the case of an accident involving physical injury, the police officer will prepare a document called a “Jikkyou Kenbun Chousho” (Conditions Examination Record) after examining the circumstances. The Property Accident Report is a handwritten record of the circumstances of the accident that is prepared after questioning the parties, so it is not effective as evidence of the circumstances of the accident. On the other hand, the Conditions Examination Record describes the conditions of the accident in detail, including measurements taken at the scene by the police officer, the conditions of the road and questioning of the parties.
Some police officers may want to handle the incident as a property damage accident even when it is clear one party has suffered minor injury. But when you consider that various disputes may arise later, no matter how minor the accident seems at first, it is important to have a proper record of the circumstances of the accident. Therefore, even if the injuries are minor, it is necessary to make it clear to the police officer that it should be processed as an accident involving physical injury if there is an injury of any type. It is possible to change from a property damage accident to an accident involving physical injury later, but because evidence such as tyre skid marks disappear as time elapses after an accident, it is important to report the accident as one involving physical injury from the outset and have a proper investigation conducted.
- Confirm whether the other party has a dashboard camera
If you have a dashboard camera in your car, the footage recorded will provide objective evidence of the conditions of the accident. Naturally, even if your car does not have a camera installed, if the opposing party has a camera in their car, you can request the submission of that device’s footage as evidence. In court, if the footage is not submitted despite your request for it, the judge may get the impression that the opposing party’s assertions regarding the circumstances of the accident are incorrect.
In this way, if the opposing party has a dashboard camera installed in their car it will obviously provide objective evidence about the conditions of the accident, and because the judge may hold doubts about the opposing party’s assertions if they do not submit the footage, you should check whether a camera is installed in the opposing party’s car. If possible, check whether a dashboard camera is installed while taking photos of the damage to the opposing party’s car, and take some photos in which the camera is visible.
The role of the police
When meeting with clients I often hear things such as “the police officer must have asked the opposing party that after the accident”, “the police officer must have seen those conditions immediately after the accident” and “doesn’t the police officer take photos?”, but police officers rarely give evidence during civil litigation. Also, if it is not a major crash that is the subject of a criminal investigation, the only documents prepared by the police officer that can be acquired are the Property Accident Report or the Conditions Examination Record. The police officer merely listens to each party’s assertions and prepares a document based on them, without necessarily conducting an investigation. Therefore, it is essential that you keep your own thorough evidence of the conditions at the accident scene.
Also, the document prepared by the police officer (especially the Conditions Examination Record) is a fundamental document used in court, so if it contains an error there is a high possibility that the litigation will proceed on the presumption of that error. When explaining the circumstances to the police officer, for the purpose of accuracy you should avoid using vague phrases or words that invite misunderstanding, and at the end confirm that there is no inconsistency between your own understanding and the police officer’s understanding.
Being involved in a traffic accident is distressing for anyone, but if you are able to remain calm and take the above measures, you will be able to obtain objective evidence that supports your assertions. Driving carefully to avoid causing an accident is most important, but if you are involved in an accident, I think the points above are important as a sensible initial response.
(Translated from the original Japanese)
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