Jonathan and the oil spill

 

 

Jonathan (our client’s name has been changed) was cycling to work when his bike shot out from under him as he ran over a patch of oil on the roadway.  He suffered a serious fracture of his right femur.  Fortunately, other road users were able not only to attend to him but to see the presence of oil on the highway. 

There was no obvious culprit, but one witness suggested it might be a council rubbish lorry exuding spillage as it proceeded on its collection.  In these cases it is important to try to identify the defendant so that the claim can be made against that driver’s insurers.  If a defendant cannot be identified, a claim is made against the Motor Insurers Bureau under the “Untraced Drivers’ Agreement”.  Under this agreement, the MIB will pick up liability for injuries caused by drivers who cannot be traced.  In the case of a spillage on the floor, they have to be satisfied that the spillage was identifiable and posed a risk.  In this case, not only did the emergency services attend and confirm the presence of oil on the floor, but they were able to report it to the council, who sent out a cleaning team to remove it.  So the MIB were not able to deny liability to compensate.

 The amount of compensation was heavily disputed, however.  The first element was the value of the claim itself.  A medical report prepared by an orthopaedic consultant appointed by the MIB was fair, but we posed questions to the consultant to tease out of him information which his report did not give and which was relevant to the length of time Jonathan was unable to work following his accident. 

 It was also necessary to ask the consultant whether the metalwork which had been inserted into Jonathan’s hip to stabilise it when the fracture was fixed could come out, given that Jonathan had reduced bone density.  The consultant believed that the metalwork could be removed without adverse effects and that when it did come out, Jonathan would experience a marked lessening of pain.  There would, however, be a period of incapacity following removal while he recovered from that second operation. 

 Defendant insurers and the MIB will always take a low conservative valuation of injuries as they are often guided by a computer programme giving approximate values.  In this case we were able to improve upon their offer considerably by providing reported case decisions upon similar injuries. 

 There were additional claims for Jonathan’s loss of income, the expenses he would not have incurred but for the accident (cost of ready meals at home, cost of travel and the like) and all of these figures were disputed by the MIB. 

 

In the event, Jonathan recovered £32,000 damages together with the MIB fixed costs under the Untraced Drivers’ Agreement.  These fixed costs are subject to a maximum of £3,000 and VAT and inevitably leave a shortfall which has to be paid from the claimant’s compensation. 

Jonathan’s compensation was paid into a Personal Injury Trust to preserve his entitlement to means tested benefits.  It is vitally important that if an accident victim is getting means tested benefits, they do not deprive themselves of those benefits by receiving a large lump sum of money that will bring them over the threshold for benefits entitlement. 

Leonard v Metropolitan Police

 

 

Leonard, a cautious and careful cyclist, was half way through executing a right hand turn along a busy road in Islington when suddenly and without any warning he was struck by a Police car driving at speed on the wrong side of the road to answer an emergency call.  Leonard had no recollection of the accident until he woke up in hospital. 

He suffered lacerations to his scalp, to his face, fractures to his cervical vertebrae, cuts and bruises to his limbs and torso, some of which required skin clips.  He was a week in hospital. 

When he was discharged, recovery was slow.  He had to rely on a neck brace for a couple of months, he suffered dizziness, headaches, neck pain, pains in his feet and of course scarring which he treated carefully but which would never disappear. 

An orthopaedic expert provided the foundation report on his physical injuries.

A neurologist reported that he had suffered a mild traumatic brain injury which gave rise to symptoms, including the dizziness, lasting up to 12 months. 

A plastic surgeon reported on the scarring and was able to indicate which scars would become paler with time and which were likely to be permanent.  He did not believe the latter would be improved either by surgery or laser treatment. 

An ENT expert reported that the dizziness was likely to have been caused by the accident at least for a year or so.  (In fairness to the defendant, the MPS had paid for rehabilitation treatment which included expert assessment of “vestibular dysfunction” and had paid for vestibular physiotherapy during his recovery).

An ophthalmologist examined him and reported on “visual field disturbance” experienced since the accident.

There was a psychological element to Leonard’s injuries as the whole episode had aggravated a previous depressive disorder. 

Leonard was unemployed at the time of the accident and so it did not cause him any loss of income, but in addition to all his physical injuries, the accident deprived him of the loss of enjoyment of his bicycle (he did not feel able to return to cycling) and prevented him from attending to his garden, his pride and joy.

The Metropolitan Police had accepted liability from an early stage and had behaved honourably towards Leonard by paying for the physical and psychological therapy that he needed to get back on his feet. (The emergency services owe the same duty of care as other road users and are not excused negligent driving because of the service they perform.)

We established a good working relationship with the case handler for the Metropolitan Police, which enabled Leonard to be placed at the centre of the whole claims process, as the claimant should be. Where the legal representatives on both sides are sensible in the conduct of a case, it generally pays off. Cases get sorted out quicker and the victim can get back to their own life.

After negotiation, the MPS agreed compensation at £35,000, money which was placed into a Special Needs Trust to avoid Leonard losing his entitlement to means tested welfare benefits. 

 
They also paid Leonard’s legal costs.

 

 

Harry v Bike Republic

Harry, a keen commuting cyclist bought a “Flying Machine Base Urban Model RD2” from the defendant’s shop.  The bike has a Gates carbon belt drive with an 8 speed internal hub.  The belt engages with an alloy rear sprocket and the inner teeth of the sprocket, where it sits on the hub, suffered shearing/wear causing it to slip as he set off from a standing start.  This happened on two occasions before the saw the reason his right leg gave way as he attempted to set off from traffic lights. 

Harry had reported the problem to the bike shop and in fairness to them, they privately admitted that other customers had reported similar problems and the manufacturers had reverted to the use of steel sprockets.  Harry recovered the damaged sprocket from the shop, which was sensible, as any expert would need to examine it to provide an opinion on the cause of the defect / failure.

In law, the sprocket was defective under the EU Product Liability Directive and the Consumer Protection Act 1987.  Any expert evidence needed to prove this defect was likely to be expensive.  Manufacturers don’t like admitting defects in materials or construction and will often go to great lengths to allege customer misuse. 

In this case the shop’s insurers admitted liability early on and expert liability evidence was not needed.  Harry had suffered tendon/ligament damage to his knee and he had organised sports rehabilitation physiotherapy himself for which he had paid.  We obtained a report from an orthopaedic doctor with an interest in knee problems. His report identified the likely length of time the knee had been affected by the injury. (Harry had since resumed cycling).

The shop’s insurers made an offer of £4,500 to compensate him for the injury, the medical expenses he had incurred and his other out of pocket losses (the shop had paid for repairs to the cycle). 

The insurers also paid the recoverable costs Harry incurred.  The lesson of this case is that where a product is alleged to be defective, retain the product until it can be examined by an expert appointed by your solicitor. If the item is released to the defendant, it may be sent off for destructive testing thus depriving you of the evidence you need to prove the case.

Traffic accident (but no collision) - cyclist recovers £10,000.00

 

If the driver caused your fall he is liable.

A car pulled out of the petrol station straight into the path of Rory’s push bike.  In performing an emergency brake, Rory went over his handlebars and as he attempted to break his fall on the road,  he suffered undisplaced fractures of both wrists and damage to one front tooth which developed crazing of the enamel. He also suffered a permanent cosmetic scar on his calf.

Ironically,  Rory’s quick reactions saved the car from sustaining any impact damage.  This was repaid by the car driver pointing out to passers by,  who had stopped to help,  that his car was unmarked and that Rory must have just fallen off the bike through his own fault (cyclists do these things,  you know!).

Although the garage had no CCTV cameras facing the road, (we went along to investigate),  a helpful motorist who had given his details to Rory,  provided a very clear witness statement** which put the blame squarely on the driver,  whose insurers took a more sensible attitude than he had.   They did not dispute liability and Rory recovered £10,000 for his injuries,  including his out-of-pocket losses and the cost of a new porcelain veneer for his tooth.  

 

(Our client’s name has been changed).

**Guidance: If you are ever in a road traffic accident always try to get the name and address of any witnesses, or ask some else to do so if you are not able because of your injuries.

Over £12,500.00 recovered for injured cycle courier

Our client Jim ( name changed) was knocked off his bike in The City by a black cab in January 2014.

Liability was admitted. Jim suffered a serious injury to his right shoulder and was not able to work as a courier for about 10 weeks. He had only a small  amount of savings to live on.

Before Jim had had time to speak to us,  the cabbie's insurers- Haven Insurance- offered £2000 to settle his claim. This is how they put it to him:-

     "We offer you the opportunity to settle your claim with us directly in the sum of £2000. Traditionally, this is done by seeking the services of a solicitor; however we offer a service that is very much similar to that offered by a solicitor. What we offer to you directly is the option to conclude your injury claim without the need for further inconvenience".

Given that Haven represent no one but the interests of their shareholders and policyholders, it is disgraceful that they suggest to accident victims that they provide a service similar in any way to an independent solicitor,  who will only be concerned to represent the interests of his client.

After we were instructed to act for Jim the insurer's next gambit was to make an offer of  £6750.00 before we had any medical evidence about the extent of the injuries and  any disability. This caused Jim anxiety because if he rejected the offer and  failed to beat it at a later trial he would be penalised in costs. Fortunately we were able to arrange a medical report quickly and on that basis valued the claim at over £15,000.00.

After hard negotiation Jim decided to accept an offer of over £12,750: six times the original offer from Haven.

Insurance companies work on the basis that a good percentage of accident victims will accept the first offer made and before they have sought legal advice. Don't be tempted;  you are likely to be accepting a grossly inadequate settlement which you will come to regret.

Consult an experienced solicitor. Don't let insurers treat you like a fool!

Cyclist Hits Pothole Outside Battleship Building, Harrow

On 6 November 2012 David (name changed) an experienced cycle courier was halfway through his workday of deliveries around London, and looking for the safest route to the Battleship Building on the Harrow Road.

 As he approached the building at around 1:30pm, David’s attention was distracted by the traffic and confusing roads under the A404 overpass. Unbeknownst to him, David was approaching two potholes at a speed of about 15 mph. As his front wheel clipped the potholes, he lost his balance and crashed to the tarmac .

 David suffered a broken wrist, multiple soft tissue injuries and lacerations. He was unable to continue his job as a courier, greatly affecting his family’s income.

 He instructed Dowse & Co. in the knowledge that we had acted for many other pothole victims.

After reviewing the case, we determined that Westminster Council was responsible for the highway directly under the A404 overpass. Council highway authorities are under a statutory duty to maintain public highways to a safe and reasonable standard. Had the highway authority maintained this road, David would have been in good health and not out of work for many months.

The defence

As with many pothole cases, Westminster Council rested its defence on the grounds that they inspected roads in the borough on a regular basis ( monthly in this case). The Council provided detailed inspection records. But they made a critical error. They claimed that anything over 55 millimeters deep would be deemed a defective pothole thus requiring repairs.

We were able to research this topic and provided evidence that under the borough’s Highways Maintenance Management Plan published in 2005, a defective pothole must be deeper than 22 millimeters to require fixing. Based on David’s photographs provided from the scene of the accident, the two potholes in question were clearly deeper than 22 millimetres.

Further, we were able to demonstrate that the council inspectors failed to identify the potholes on two visits in late November and  December, in other words after the accident, and the implication was therefore that they had also missed the potholes in October 2012, before the accident. So, while the policy was in line with a decent statutory defence the implementation was not, proving fatal to any defence, in our view.

The council at no time admitted fault and court proceedings were commenced on 5 November 2013, on behalf of David, and after we had endeavored to settle the claim in October.

In January 2014 the defendant made an acceptable offer in line with our valuation. Our client recovered £6,800 damages.

Pothole cases are often aggressively defended by local authorities and a high proportion require the claimant to issue court proceedings before any settlement is possible. In such circumstances you need experienced and expert legal advice on the merits of your case to be confident about pursuing a claim successfully.

We firmly contend that  holding highway authorities accountable for potholes  over time contributes to the  safety of all road users in improved practice and maintenance.  

 

Joshua O’Connor, Dowse & Co.- April 2014

 

Potholes in the UK and Cyclists: some advice

Every cyclist hits a pothole on the road sometime.

If cycling on the public highway in the UK,  all local authorities have a statutory responsibility to maintain and repair the road such that it is reasonably safe for expected traffic. 

If you are injured or your bike is damaged, the starting point is to determine if the pothole is a  foreseeable danger to cyclists. There are no rules about what size pothole qualifies but a court will have to be convinced that it was dangerous enough to cause an accident  in the particular circumstances and with regard to the road user: for example,  gaps around a drain cover can be a real danger to cyclists but not to a motorist.  

Potholes are a menace for bikes

Local authorities can defeat pothole claims by demonstrating that they have a robust inspection, repair and maintenance programme in place. So, although a pothole may have caused an accident if the council had acted reasonably to maintain the road, despite the accident, the claim will fail.

Compensation can be reduced for contributory fault if the court finds that a cyclists wasn’t paying enough attention to the road ahead ( and ironically, the larger the hole the more likely that a council can run a successful argument),   or if the pothole was on a familiar route, or near the cyclist’s home. All road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead. 

Make sure you take photos of the pothole and note its precise location. If there were witnesses take their details. Don't delay in seeking medical attention and tell your doctor about the accident.
 

At Dowse & Co we have a track record of vigorously pursuing pothole claims and have won many cases contested hard by local authorities. 

Call Patrick Spence with any queries on 0207 254 6205.