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

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"