26 March 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.

19 February 2014

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.

23 January 2014

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

7 January 2014

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.

 

9 December 2013

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.


22 November 2013

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. 

26 September 2013

“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.