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.

CYCLISTS INJURED IN HIT AND RUN ARE ENTITLED TO COMPENSATION

What legal remedy does a cyclist have where they are the victim of a hit and run accident?

Such incidents are all too common in London.   Recent figures from the Metropolitan Police suggest that about 15 cyclists a week are killed or injured as a result of a hit and run.  Cyclists account for about 20% of casualties arising from hit and runs,  even though they account for only about 2% of journeys made on our roads.  

Untraced Driver’s Agreement

If you are the victim of a hit and run,  and suffer injury,  you can make an application for compensation under the Untraced Drivers Agreement (“UDA”) to the Motor Insurers Bureau (“MIB”).   Obviously, you can only make a claim where the driver responsible cannot be identified.

To succeed in such a claim, it is essential that the incident is reported to the police and that you have a crime reference number,  or some other form of acknowledgment from the police.

Under the Agreement you must report the incident  within 14 days of its occurrence (or not later than 5 days where you are also claiming property damages).   The time limits can only be extended where it was not reasonably possible to meet them.

If you are in doubt about whether you may want to make a claim you should at least protect your position by reporting to the police which will enable them to undertake any investigation that might lead to the driver being traced and if need be prosecuted.

The MIB, if they accept the claim,  will commission a medical report before making an offer of compensation. There is an appeal process if the offer made is unacceptable.

The MIB will make a contribution to the cyclist’s legal costs where they have had professional advice in making the application,  reviewing the correctness of the decision,  and advice about the adequacy of the award,  including drafting an appeal if necessary. So its worth seeking legal advice before you try to claim yourself, unless you are confident you can master the claim procedure

 Call Patrick Spence on 020 7254 6205 or e-mail ps@dowse.co.uk if you have any further queries about hit and run claims,  or if you need assistance in pursuing such an application.

Cost budget variations: this is not going to end well.

Our senior litigator Myles Hickey has published this letter in the Law Gazette highlighting the negative affects new budget rules will have on the management of claims if courts go by the book:-

DJ Lethem's informed commentary (Variation of budgets - part 1 LSG 18.11.2013) reveals the problem caused by CPR PD3E paragraph 2.4. The court may only approve prospective budget variations. So if the litigator has responded to developments in the case to keep it moving before getting those steps approved, he or she would have to hope for a pragmatic and liberal interpretation of CPR 3.18 on detailed assessment at the end of the case (no departure from an approved or agreed budget "unless satisfied that there is good reason to do so"). As Christopher Lethem notes, such a calculated breach of the budget is a strategy fraught with danger. As a member of the CPRC, he should know.

He develops this in part 2 of his article (LSG 25.11.2013) with the observation that in the post Jackson costs regime, where proportionality trumps reasonableness, it is likely that standard basis assessment will reduce recoverable costs, so only the brave will seek detailed assessment.

Therefore litigators have no realistic alternative to seeking prospective budget variations once the budget is in danger of being exceeded. And they are then faced with the task of showing the variation is warranted through significant developments in the case, rather than oversight (or perhaps optimism that the opponent would cooperate) and all against the elegant and  unpredictable yardstick of “proportionality”. This PD seems to me a recipe for slowing down litigation,  snarling up court lists with applications and denying effective access to justice for those with cases with low or moderate multi-track value.

There is raucous approval in some commentary on the Jackson reforms by judges (though not this one) and defendant costs lawyers at the new powers of the courts to strip out costs. There is much talk of "robust" approaches. What it means in fact is that paying parties are likely to get a windfall, thoroughly undeserved, through the new provisions if they are not applied intelligently. As others have noted, this is an unfair and regressive outcome of changes which surely could not have been intended. The way to ensure justice on costs budgeting is for courts to adopt a low threshold for approving proposed budget variations and tackle paying parties’ objections “robustly”.  Otherwise the “costs wars” of the past 20 or so years will seem like playground games by comparison.

 

Myles Hickey

Car Passengers and the duty to cyclists

Paragraph 239 of the Highway Code imposes a duty upon drivers before they or their passenger(s) open a door, to make sure that it will not hit anyone passing on the road or pavement,  or force them to swerve.  They have a duty particularly to watch out for pedestrians, cyclists and motor cyclists.

Greta, a young, fit and experienced cyclist was knocked off her bike at night by an offside passenger who did not check before opening the door into her path. Greta’s bike was properly lit.  Greta struck the car door side on, and suffered spiral fractures to the metacarpals of two fingers on her left hand, which was trapped between her handlebar and the door.  She also had some small scarring to her face where she struck the floor.

The Police were uninterested in pursuing the passenger for a breach of her duties to Greta.   However,  failure by the Police to act is not by any means fatal to pursuing a successful civil claim.  A person will not be convicted unless they are believed to be guilty beyond reasonable doubt.  Civil claims are proved “on the balance of probabilities” which means “more likely than not”.  A claim was therefore made against the driver,  who was insured.   Insurers will normally deal with the liability of their insured’s passengers in these circumstances.

Although the passenger had been pretty unhelpful to Greta and had assumed that Police disinterest meant that she would face no further claims, her insurers took a more realistic attitude.   They did not allege that Greta had been cycling too close to the vehicle.   They did raise the absence of a cycling helmet as contributing to the facial injury Greta had suffered.

There were claims for loss of income (Greta had a number of casual jobs, paid in cash and proving loss was difficult).   They initially proposed a settlement figure of £10,000 but we persuaded them that a more realistic settlement would be £12,500. We made allowance for a possible argument about the absence of a cycle helmet contributing to the minor scar on her forehead.  (The law on cycle helmets is that the defendant has to show that the wearing of a helmet would have avoided or significantly reduced the chance of injury;  it is likely if they succeed in proving that,  the injured claimant’s compensation for that injury will be reduced by about 15%).

The insurers also paid Greta’s costs,  although under the new costs regime which the Government introduced last April,   Greta had to make a contribution.  The Government has fixed costs recoverable from the driver’s insurer at an unrealistically low rate,  which means that accident victims will commonly have to contribute to the cost of getting compensation.  Part of that cost is to pay the insurance premium for the policy taken out on all “No Win – No Fee” cases to protect the claimant against costs orders they may face.

 

Slipping on Snow and Ice: and the duty of your local council

Since 2003 your local authority has been under a statutory duty to ensure "so far as is reasonably practicable, safe passage along a highway is not endangered by snow and ice". The highway includes the roadway and pavement.

What does that mean?

It is the responsibility of our courts to define what Parliament means when it introduces a new law. However, and so far,   in the last 10 years there have been no reported cases where a senior judge has had to determine the circumstance when a local authority might breach its statutory duty to clear snow and ice. (That may change if the UK continues to suffer cold winters as recently has been the case.)

This is no surprise. Councils are bound to be given significant latitude in such cases where the public interest in committing limited (tax payers) resources to clear snow and ice must be balanced against our private rights to be reasonably safe when using the highway. So long as a local council appears to have acted reasonably and have adopted and executed a half sensible policy to prioritise snow clearance,  few judges will be willing to override that,  accept in the most egregious cases.

On the other hand, where injuries suffered are serious and life changing, the courts will  expect  a local authority to account for their actions if there is any evidence that snow and ice was responsible and ought reasonably to have been cleared before any accident.

In our borough of  Hackney  while the main roads are cleared and salted quickly after snow that often is not  the case with  side streets and residential areas. For pedestrians,  pavements can become ice rinks outside their homes and where they have little choice but to negotiate,  if they are to get to work or to local shops.

After a heavy snow fall how long should a council be allowed before clearing your street? Perhaps 7 to 14 days is reasonable for a side road but more than that might require a proper explanation, in our view.



Evidence will be crucial- eg. independent witnesses, photographs of the road or pavement, statements from neighbours about the delay in clearance-  and if there have been recorded complaints about the same stretch of road that have not been acted on that will help to establish  a breach of duty

We are happy to review a claim if you are unlucky enough to suffer injury by a fall on snow or ice.

No head room: cyclist hits low railway bridge

Hackney Marshes has a railway line which runs north south.  The railway travels over a number of rights of way which enables walkers and cyclists to travel east west between Hackney and Walthamstow.

On Good Friday 2011 at 10.30pm James was cycling with a group of half a dozen friends across the marsh along a route designated a national cycling path.  The cycle route went underneath the railway line.  The railway bridge was very low allowing only 140cm or so between the path and the railway bridge.  In other words, as a cyclist, to negotiate the railway bridge either you had to duck or dismount to avoid colliding with the bridge. 



One of the low railway bridges over Hackney Marsh

The cycle path was lit underneath the bridge but not on the approach .  There were no warning signs nearby.  The bridge, however, did have yellow hazard paint marked out along its side. 

James was the fourth rider to approach the bridge.  He did not see the bridge.  His head collided with a steel girder protruding about 10 cm  and he sustained significant facial injuries including a broken nose and a deep laceration. 

James instructed Dowse & Co to pursue a claim for damages. 

The London Borough of Waltham Forest was the Defendant and disclosed documents regarding the maintenance of the railway bridge and the cycle path.  It became apparent that consideration had been given to excavating out the cycle path to create more headroom thereby to in part reduce the risk of accidents.  The works had not progressed, however, because of concerns about the risk of flooding that might arise as a consequence of deep excavations. 

The council admitted primary liability but argued that James was partly to blame for the accident and should therefore accept some contributory fault.  We agreed a split on liability of 75%:25% in favour of James.  A consequence of such an agreement would be to reduce James’s total damages recovered by 25%.  In the circumstances, it was difficult for James to argue that he was not partly responsible for the accident.  Three of his friends had safely passed under the bridge in front of him and had he paid more attention he no doubt would have avoided the collision. 

On the other hand, the council were at fault because they knew from previous incidences that there was a real risk of collision due to the low bridge, and could have taken some simple and cheap steps to reduce that risk by, for example, improving the lighting of the bridge at night time and putting up better notices to warn approaching cyclists. 

While liability was agreed early on, there was a dispute about the assessment of quantum.  The insurers acting for the council undervalued the claim and James, on advice, issued court proceedings with a view to asking the court to assess quantum in the absence of agreement between the parties.  In the event, shortly after proceedings were issued the Defendant improved their offer and the claim was settled for just under £9,000 and the defendant had to pay James’ legal cost.

Cyclists are vulnerable road users.  They are particularly at risk of injury due to design and maintenance defects with roadways.  James’ case was plead as common law negligence and under the Occupiers Liability Act.  The cycle path and bridge was a real risk to cyclists,  was under the control of the council,  and it was foreseeable accidents might happen.

The council might have argued that they had no duty however to maintain a right of way because in James exercising his right of way the council could not have the required control to be responsible for making the route safe for cyclists. They did not pursue such a defence probably because they had previously taken steps to improve and maintain the cycle route and in so doing would be held to have taken on a duty of care towards cyclists on the route: a duty  which they would not be allowed to walk away from subsequently.

If you have suffered injury due to road defects or obstacles in your path  please call us for a free consultation on 0207 254 6205 regarding whether you may have a claim for compensation for any losses and injuries suffered. 

“Skin in the Game” : Funding Personal Injury Claims since 1 April 2013

In the 1990’s most accident victims had the benefit of funding under a Legal Aid Certificate from the Legal Aid Board.   Legal Aid was abolished in 1998 and replaced by the “No Win – No Fee” system we have today.   When first set up the No Win – No Fee system recognised that lawyers were taking a risk that if a claim failed they would not recover any of their costs in pursuing the claim and usually resulting in the loss of thousands of pounds worth of work.   As a result,  the Government allowed lawyers to charge a success fee on top of their basic charges and that fee was recoverable from the losing defendant where the case succeeded.   On most cases claimants also took out an insurance policy to protect against liability for the defendants costs if the case was unsuccessful.   Such premiums,  like the success fee,  were to be recovered from the losing party.

Most claims for personal injury are met by an insurance company.  The insurers accepted the introduction of the No Win – No Fee system no doubt in part because they also saw business opportunities themselves.

In the Naughties further reforms to the system were introduced,  including allowing non-lawyers to set up claims management companies and to charge lawyers referral fees for claims they had captured through marketing, such as TV adverts and websites.

Whereas historically lawyers had dealt directly with injured clients,  they were now  often paying an intermediary for the referral together with other add-on costs such as tied-in insurance and medical reports.   Personal injury victims were becoming a commodity to be exchanged between various parties.   The popular media encapsulated these changes in the term “compensation culture” (usually followed by “...gone mad”).   The insurance industry saw an opportunity to pressure politicians for change.   In particular,  the insurers wanted to cut legal costs to make any success fee and insurance premium non-recoverable from themselves.   Their big moment arrived when the Tory / Lib Dem Coalition came into power in 2010.  

Since April 2013 the legal costs the insurance industry must pay have been slashed and they now do not pay any success fee and insurance premium providing cover for litigation risk.   As a consequence,  most claimants now make a contribution towards their legal costs from any damages recovered.   The insurers from their perspective would like to see the role of lawyers acting for injured clients removed altogether to a position where for many claims the claimant has to deal directly with an insurer without any independent representation to negotiate the right level of compensation recognised in law.

There is more in the pipeline.  Sometime in the Autumn 2013 we expect the Government to announce that the Small Claims limit for personal injury,  which is presently £1,000,  will rise to £5,000**.    In a Small Claim the claimant cannot recover any legal costs incurred.  Should this be enacted the majority of claimants with injuries worth less than £5,000 will have to pursue the claim without any representation and will be at the mercy of an insurance industry whose first priority is the interests of their shareholders who unsurprisingly would rather not pay out any money on claims wherever possible.

[**UPDATE: The Ministry of Justice announced in October 2013 that they will not be raising the small claims limit in the immediate future but will keep the matter under review. In part this may be a realisation that raising the limit risked creating a new unregulated "wild west" for claims companies to take a large cut from injured clients damages in fees,  in the same fashion they presently do for PPI claims against the banks] 

Our Advice at Dowse & Co

Speak to us first (free of charge) before you consider any settlement proposal from an insurer where you have not so far had any independent advice.   The insurer will certainly have made an offer significantly lower than you are entitled to if your case went in front of the court and with the aid of a skilled and experienced lawyer you are very likely to recover perhaps 2 or 3 times as much,  if not more than any initial offer.   It is for all these good reasons that we also support our professional body, The Law Society, in their campaign “Don’t get mugged by an insurer” which encourages accident victims always to consult a solicitor before accepting any offer from an insurer.

Martha - Cycle injury

 

Martha got a nasty fright when a car,  without any indication,  turned left across her path into a side road,  forcing her round the corner with it and dumping her on the floor.   She thought she would be dragged under the car but fortunately she was thrown clear.   

She suffered a bang on the head and what are called “multiple soft tissue injuries”.   She was in unpaid work at the time but was unable to return to that work for seven weeks.

She was dependent upon a local friend to help with her young children and the housework.   

 

She was also quite shaken up by the whole experience.

Her claim was pusued under the Road Traffic Accident Low Value Claims Process,  such claims being conducted entirely electronically through a portal.  Under the Rehabilitation Code,  the driver’s insurer agreed to pay for physiotherapy.   Most insurers subscribe to the Rehabilitation Code and,  where liability is not in dispute (as it was not in this case),  will pay the costs of early rehabilitation treatment. The reasoning, (apart from it being good practice anyway) is that the quicker the intervention,  the more rapid the return to full health and the lower the eventual cost of compensation.   Early rehabilitation is an important benefit for an accident victim.

On Martha’s behalf we proposed settlement for a figure just exceeding £9,000.  The insurers responded with a figure of £5,500 but after a process of negotiation,  agreement was eventually reached in the sum of £8,400.  Martha received this net sum,  the insurer picking up the liability for relevant benefits that she had received from the DWP during the period of her incapacity.  

They also paid her costs in full. Payment of full legal costs will no longer be possible under new law introduced by the Government on 1 April 2013. The fixed costs payable by the insurer for successful claims have been cut by almost 60%. The victim also pays the success fee out of her damages, and the cost of insuring against the risk of losing and being responsible to pay her own “disbursements” (what the lawyer pays out on her behalf such as medical and court fees.)

Speak to us if you have had an accident which was not your fault and want to find out how much of your compensation you will pay towards your legal costs.

Cyclists: access to justice is about to get a whole lot harder

Here is our letter to the editor of the London Cyclist ( published by the London Cycling Campaign):  

14 February 2013

Dear John,

LEGAL PROTECTION FOR CYCLISTS

Ashok Sinha’s “Opinion” in the February/March issue of London Cyclist examines insulting verdicts for cyclists in criminal prosecutions of those who have caused injury to cyclists.

Of equal concern is the loss of protection which changes in the civil law will inflict upon injured cyclists, among other accident victims, from April this year.  

Behind the changes is the Coalition Government’s desire to see a reduction in  claims against insurers for motorists and  employers and indeed against itself.  

(So,  for example,  in the field of employment,  the Government has ended all Legal Aid provision from 1 April.   It also proposes  to reverse the Health & Safety at Work Act 1974,  section 47,  which contains a presumption that all Health & Safety Regulations made under the Act will carry civil liability for breach,  unless expressly excluded.   The Government’s Enterprise and Regulatory Reform Bill will overturn case law existing since 1898.  With regard to its own actions,  the Government proposes to cut in half the available time to apply for Judicial Review of  unlawful actions/decisions by the Government and other public bodies and to severely circumscribe the opportunities for doing so.)

There are a lot of complaints claimant lawyers could make. But the main purpose of this piece is to address  the Government’s fundamental attacks upon civil claims for compensation for injuries.   These changes fall into two categories:

  

 

The Jackson Reforms

Since 1999,  under the “Polluter Pays” principle,  the accident victim who brings a successful claim through lawyers for damages for injuries suffered as a result of someone else’s fault,  has been able to keep all of their compensation.   The “No Win – No Fee” system rewarded lawyers for taking on cases they might lose (in which case they would earn no fee),  by  providing limited success fees in cases they won.  In road accident cases, the success fees are fixed by law and were payable by the wrongdoer or,  in reality,  their insurer.

Proposals by Lord Justice Jackson,  which the Government has decided to implement fully,  reverse that,  so that any success fee will no longer be recoverable from the wrongdoer,  but  only from the victim.   To compensate,  Lord Justice Jackson proposed that damages for pain and suffering be increased by 10% overall.  

So far as claimants are concerned,  these reforms shift the cost of funding claims from wrongdoers (who spread the risk amongst themselves via insurance) to individual claimants.  Those claimants with more serious injuries and more complex claims will receive a moderate increase in damages,  very unlikely to meet the amount of a success fee needed for risky and complex cases.    The whole purpose of success fees being paid by the wrongdoer was corrective justice,  not to provide the claimant lawyer with a windfall,  but to compensate for the cost of running the  losing cases. Success fees were perceived therefore as being “cost-neutral”.

Under the Jackson reforms,  which are implemented by the Legal Aid,  Sentencing and Punishment of Offenders Act 2012,  the victim will have to meet any success fee out of their damages. Damages are intended to put the victim as near as possible, into the position they were but for the accident. They are not a bonus to be shared with their own lawyer. Victims will be left short. Those with risky cases will struggle to find lawyers to take them on.

The Low Value Road Traffic Accident Portal

The second attack upon accident victims is  the Government’s reduction of fixed costs in road accident personal injury claims.  Three years ago,  in order to simplify and speed up road accident claims involving a motor vehicle on a public highway or other public place in which liability was not contested,  the Ministry of Justice introduced a process for resolution of cases with a value between £1000 and £10,000, through an electronic portal.  This would revolutionise the way in which claims were notified to insurers and disputes about value resolved.   There was a long process of consultation and costs and fees were agreed and fixed for conducting these claims.   The siren songs of the Association of British Insurers have persuaded the Government that the work can really be done for £500, rather than £1200,  a reduction in fixed costs of 58%.   The jurisdiction of the electronic portal will now cover claims by injured cyclists and other road accident victims up to the value of £25,000,  with an unrealistically low costs cap of £800. Even the Government’s own advisors in the Civil Justice Council condemn the cost proposals as unrealistically low.

The net effect of these changes will be that to do a proper job, claimant lawyers will be unable

to undertake the work without charging the claimant.   To take three real examples from my

own caseload,  these proposals would lead to my recovering from the car driver’s insurer  legal costs of less than 20% of the value of the work I did in claims settling respectively for £13,750,   £22,500 and £10,000.

While these fees are being cut,  the work involved is not and many cases will simply become unaffordable for a lawyer. I could not do a proper job on these cases for such costs.  (I might add that the process is also being extended to include workplace and public liability cases).

If lawyers are unable to provide independent advice,  injured people who are at their most vulnerable,  are very likely to feel obliged to deal direct with insurers to secure compensation.  All the evidence,  including my experience of dealing with these cases over 30 years,  shows that there is a huge risk that insurers will try to under-settle these claims.  Our responsibilities are to our clients.   Insurers’ responsibilities are to their shareholders.

Even to begin to negotiate compensation,  the injured person needs to know how to value their claim.  How many lay people do?  

The Association of Personal Injury Lawyers,  a not for profit body which champions the interests of injured persons,  issued a legal challenge against the imposition of these proposals,  as a result of which the Government has delayed implementing some (those concerning workplace and public liability injuries),  but in a fit of pique,  the Secretary of State for Justice Christopher Grayling proposes extending the Small Claims threshold to £5,000 or more (pick your own figure).

The Small Claims jurisdiction is one in which legal fees are not recoverable (even the reduced fixed fees set out above).   If claimants’ lawyers can be cut out of the picture as much as possible,  so the theory goes,  then motor insurers, particularly will reduce their premiums and car drivers at least will be happier.

For a long time now,  claimant lawyers have fought  these proposals which will badly damage the interest of injured persons and indeed access to justice -  generally regarded as the hallmark of a civilised society.   By access to justice we mean not just access to courts and litigation,  but a recognition that everyone is entitled to the protection of the law and that rights are meaningless unless they can be enforced,  i.e. protecting ordinary and vulnerable people and helping them to solve their problems.

The Government is full of empty rhetoric about the sanctity of our justice system, but its actions reveal its true agenda. I am afraid this agenda has been set by insurance companies to preserve their  profits at the expense of those who have suffered injury because of the negligence of their policyholders. Injured cyclists who have a claim will be among those who suffer as a result of these changes.

 

Any cyclist pondering a claim for an accident that has already occurred should get it underway before 1 April 2013 when these changes bite. To avoid the impact of the changes, no win no fee agreements will have to be signed up and legal expense insurance policies issued by 31 March.

Yours sincerely,

MYLES HICKEY

DOWSE & CO

E-mail:  mh@dowse.co.uk