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

FIXED COSTS: OUR LETTER TO THE MINISTRY OF JUSTICE

We reproduce below our letter today to the Ministry of Justice who are consulting about introducing fixed fees recoverable by Claimant's in claims for personal injury. These fees will make it uneconomic in many cases for solicitors to represent their clients properly and for that and other reasons we are opposed to the proposals:-

           "Bridget Kebirungi

            Ministry of Justice

            4.22

            102   Petty  France

            LONDON  SW1H  9AJ

Dear Madam,

Response to Extension of the RTA PI Scheme: Proposals on Fixed Recoverable Costs (Helen Grant MP – Consultation Letter of 19.11.2012)

Our firm responds to Ms Grant’s consultation document of 19.11.2012 as follows:-

1.         Our firm does not pay referral fees.  We do however, like any commercial enterprise devote some funds to marketing.  Therefore an arbitrary cut to fixed fees on the supposed basis that all lawyers pay referral fees is wrongly concieved.  The insurance companies on the other hand are allowed to spend millions of pounds each year marketing (even though, in the case of motor insurance it is mandatory),  and so it seems grossly unfair that the Government should decide that marketing to encourage citizens to pursue legitimate claims against insurers should be severely restricted,  while peddling insurance products is not.

2.        Our firm has provided professional legal services in Hackney to individuals and businesses for over 100 years.  The fixed fees proposed will effectively make much personal injury work uneconomic for solicitors to undertake while still complying with our professional duties as defined by the Solicitors Regulation Authority which requires,  amongst other things,  that lawyers:-

·        Know their client;

·        Take instructions;

·        Investigate funding options;

·        Provide advice on funding;

·        Carry out checks as to money laundering, ID, conflict of interest and bankruptcy;

·        Manage client’s expectations throughout the life of the claim;

·        Updating clients on the progress of their claim throughout;

·        Advising clients on the merits of the claim and the value of compensation they can expect to receive and gathering evidence necessary to make their claim.

3.         Your consultation document does not provide any evidence from the Government to support the contention that current fees are too high.   As you will be aware,  the present fees were agreed by insurers and claimant’s representatives following negotiation facilitated by the CJC.

4.         The inequality of arms which already exists between the insurers and injured persons will only deepen with fixed costs.   The incentive on defendants to narrow the issues in cases is lost where claimants costs are fixed.   Compliance with the Personal Injury Protocol by defendants is already a problem;  however, if fixed costs were introduced there would be even less of an incentive for defendant insurers to comply.   The amount of work involved in each case is largely dictated by the defendant.   They decide on the issues which the claimant has to prove.  Fixing costs therefore does not fix the amount of work involved.  There is a real risk that as a result of fixed fees,  the work that can be undertaken on each case will be so restricted,  that many claimants will not recover the compensation that they are entitled to and that will prove to be a windfall to insurers,  leaving a side the potential increase in professional negligence claims.

5.         We can see no good reason why the Government seeks only to fix claimants costs.  The defendant’s presently are not to be fixed and yet they have an equal bearing upon the level at which insurance premiums are ultimately set.   Unrestricted costs for the defendant means that they will be in a position to draw out the claims process against the fixed costs recoverable by the claimant,  thereby undermining the claimant’s representation and its quality.

The Free Market

The Government purport to be economic liberals and supporters of the free market.  Everything however that the Government appears to be doing to restrict claimant’s rights goes against the grain of liberalism.   Instead,  the large and monopolistic insurance companies have entirely dictated the direction of policy to their own benefit and that of their shareholders.  The impression we have is that the market is being fixed for the already strong and powerful.

Please be assured that should the extension to the Protocol, the introduction of fixed fees, and payment of success fees from damages proceed as planned,  we shall do everything we can to make our clients aware of our opposition to the changes.

Yours faithfully,

DOWSE & CO"

Cyclists, potholes and the law

1.     

No rule about size to trigger liability

Every cyclist hits a pothole sometime.

If cycling on the public highway,  your local authority has a statutory responsibility to maintain and repair the road such that it is fit and safe for ordinary traffic. 

If you are injured or your bike is damaged, the starting point is to decide whether the pothole  is a probable 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: for example,  gaps around a drain cover can be a real danger to cyclists but not to a motorist.  

Local authorities can defeat pothole claims if they can convince the court that they have taken reasonable care to ensure the road was not dangerous for traffic. Therefore, the evidence that a council can bring about its inspections, repairs and maintenance programme will often be critical to the outcome of a claim. 

Compensation will 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.

Again,  all road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead. 

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

Call Patrick Spence with any queries on 0207 254 6205.

Rights of way: no claim against the landowner

Rights of way often do not include a right  against landowners for injury

Cycle paths on a right of way may not be the responsibility of a local authority and it may be that you will not have a claim at all if you fall from your bike because of a pothole.

Courts have held that the occupier of land over which a right of way crosses does not have a legal duty to maintain the pathway in good repair. You therefore may not have a claim at all no matter how big and dangerous the pothole when using a right of way over private land!

In essence,  when a cyclist exercises a right of way,  the landowner at that point is judged not to have control of the land and is not defined as an "occupier" with the legal obligations towards visitors normally expected.

Even if the landowner improves the right of way, say by paving, there is no obligation on him to continue maintaining the right of way if it falls in to disrepair and you will probably have no claim if you are injured due to any disrepair.

Contact Patrick Spence for more informatiom: 0207 254 6205

A few tips about pothole claims for cyclists

1.     

Every cyclist hits a pothole on the road sometime.

If cycling on the public highway,  the local authority has a statutory responsibility to maintain and repair the road such that it is fit and safe for ordinary traffic. 

If you are injured or your bike is damaged, the starting point is to decide whether the pothole  is a probable 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: 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 if they can convince the court that they have taken reasonable care to ensure the road was not dangerous for traffic.  Therefore, the evidence that a council can bring about its inspections, repairs and maintenance programme will often be critical to the outcome of a claim. 

Compensation will often 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. 

Again,  all road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead. 

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

Call Patrick Spence with any queries on 0207 254 6205.