3 January 2017

Jonathan and the oil spill

Image result for oil spill on road
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.