Early Settlement Offers – Can They Ever Be Advantageous?

One of my primary objectives when acting for clients is to ensure that they are compensated properly for the injuries they sustain.

For this reason, it is not ideal when insurers make very early offers of settlement, especially in cases of substantial value. If an offer is made before medical evidence is complete, a solicitor must advise a client on a “best guess” scenario – will the compensation that is offered be enough to compensate that client for any ongoing pain or lasting complications from their injuries, and will it cover all necessary treatment and care costs going forward?

However, in some limited circumstances, an early offer of settlement can be of benefit to a claimant.

My client Mrs M was a passenger in a car being driven by her husband on a country road. Another driver tried to overtake the car on approaching a hill. There was no clear line of vision. An oncoming horsebox came into sight and, to avoid colliding with the horsebox, the other vehicle drove into the side of Mrs M’s car. The force of the action sheared off the back wheel and axle and the car careered into the bank. Very sadly the other driver was killed in the collision.

My client who was 90 at the time suffered significant injuries including a fractured skull and spinal fractures throughout her upper and mid spine. She was in hospital for 3 weeks. She developed BVVP (a form of vertigo).

The insurers agreed to fund an Immediate Needs Assessment (INA) under the Rehabilitation Code 2015. This enabled me to instruct an independent case manager to visit my client and prepare a report making recommendations for rehabilitation to support my client in her recovery.

The INA report gave some costings for the initial recommended rehabilitation, (so for example it recommended initial assessments with a pain management specialist, neurologist, neuro-physiotherapist and psychologist). It also gave some recommendations for the initial care support my client would require in her recovery.

On disclosure of the report, the insurers made an early offer to settle the claim for £75,000.

An INA is designed to support a claimant in their recovery, not to enable the claim to be valued. The usual progression of a personal injury claim is that, when a client has made some recovery from their injuries (hopefully with some extensive rehabilitation funded by the insurers), they are seen by various independent medical experts who prepare reports which give an opinion and prognosis for the injuries sustained. Those reports enable a solicitor to value the claim.

At such an early stage in Mrs M’s claim, I was unable to advise her with any certainty that the offer would be enough to compensate her fully. We simply didn’t know how fully she would recover from her injuries and what investigations, treatment and support she may require long term.

However, Mrs M was 90 at the time of the accident, and sadly her husband had recently been diagnosed with terminal cancer. Whilst there was a risk that she would be undercompensated for her injuries by accepting this offer, given that it would bring her claim to a swift conclusion (and we had the INA for her to follow up with any recommendations made for her treatment using the compensation she received), she was keen to explore early settlement.

Following negotiations with the insurers, I was able to secure a six-figure settlement for my client which she was happy to accept.

Serious Injury Claims – What You Should Consider

If you or your loved one have suffered a serious injury (also sometimes referred to as a “catastrophic injury”), not only would that have been devastating, but it will also be life changing. From an accident at work, to a road traffic collision, there is no way of planning ahead for a serious injury. Whilst compensation cannot change what has happened, it can be vital in helping you get on with your life and in helping you obtain the care and assistance, and rehabilitation that you may require.

These serious injuries will have an immediate and enduring effect on you. We understand the short, and long term impact a major injury can have on an individual and their family, and therefore, we work with specialists to establish quickly how the injury has affected you and use our experience and expertise to win serious injury claims on behalf of our clients.

Our expertise and understanding of the complex legal system means that we can identify very early on in a claim what is going to be involved in a serious injury compensation claim. Importantly, we also understand and the significance that bringing a claim has for the injured party and their family.

Therefore, not only do we consider the monetary compensation but also other factors such as short to long term physical, social and financial impact. Our objective is to build a case for compensation that considers the long-term picture, and other factors such as potential home adaptations, private medical care, immediate care needs, and rehabilitation support.

 

There are other important factors we keep in mind such as:

A personal approach: We focus on giving a personal approach from the outset. We will visit you at the hospital, home or even at a rehabilitation centre. We prefer seeing our clients face to face which we appreciate enables a relationship to be built, especially when you are going through a traumatic time.

The claims process: We assess your claim from the outset to identify who is responsible for your accident and we will ensure all the relevant evidence is gathered in support of your claim. When handling a serious injury claim, we always work hard to ensure a dedicated and experienced case manager is appointed. This case manager will assess your rehabilitation needs up to the conclusion of your legal claim, and beyond where necessary.

Expertise: We have acted successfully to secure compensation involving (but are not limited) to:

  • Serious neurological conditions leaving injured clients with disability, paralysis;
  • Amputations;
  • Loss of limbs;
  • Severe head or brain injuries;
  • Spinal cord injury.

Interim payments: We aim to secure an initial interim payment as soon as possible after the start of your claim, and then at intervals throughout the claim before the full and final settlement payment is made. We know and appreciate these payments help to alleviate the financial burden especially when you are unable to work, or in circumstances where private treatment may be necessary.

When making a serious injury claim, it is important that you find a solicitor with extensive experience and knowledge of the complex process involved in this type of claim. This includes a sound understanding of the Rehabilitation Code, the importance of assessing the current, and potential future needs, and dealing with other experts when running a successful claim.

If you have been injured in a way which was not your fault, and your injuries are extreme, please contact our Personal Injury Team. Our Team is made up of specialist Personal Injury Lawyers who have many years of specialist experience in dealing with such cases.

How does honesty (or lack of it) affect an injury claim?

The issue of fundamental dishonesty continues to be raised in personal injury and clinical negligence claims.  Increasingly we see defendant insurers and the NHS seeking to try to establish some dishonesty to either achieve the dismissal of the claim altogether or to secure the recovery of some costs.  This provision is known as section 57 of the Criminal Justice and Courts Act 2015 (“S57”).

Although an explanation of fundamental dishonesty is set out in the statute it is a movable feast in case law.  As more defendants seek to raise the issue, so cases become more varied.  Each case is very much decided on its own merits but there are some common themes. The consequences can vary from costs and compensation penalties to imprisonment.

It is well known now that claimants’ solicitors should always advise clients of the possibility that the defendants may review or seek access to their social media posts, particularly where there are allegations of illnesses on holiday.  In the case of Lactatemia Shipping Company Limited v Sue & Others, the claimant allegedly fell ill on holiday due to food and/or drink consumed at a hotel.  This illness apparently was so severe as to ruin their holiday.  Once home, a claim was commenced.  The defence was supported by social media posts which included favourable comments about the hotel and the overall experience. It seemed to undermine the entire case. The claimants therefore discontinued the claim. The claimants were found to be fundamentally dishonest.  The claim of course had been discontinued but there was an application for costs.  There were some issues as to the solicitor’s role. It didn’t appear that checks on the client’s social media (which is a particular feature of travel sickness claims) had been undertaken and some documents appear to have been hidden or deleted.  An application for costs ultimately cost £37,000.

A recently reported case in the national newspapers of N K  v Hull NHS Trust indicated  problems in  a claim valued at £7.3 million. The claimant alleged significant mobility issues. The defendant relied on the fact that the claimant was taking a performing arts degree and there were surveillance video and social media posts on her feed indicating that she was moving without difficulty.

In the case of A P recently the claimant alleged mobility issues whilst his Twitter account presented an overall impression of his running fitness and timings.  He was subject to surveillance evidence, and he was found to be fundamentally dishonest.  All damages to which he was entitled were set off against the liability to pay the defendant’s costs.

However not all dishonesty is equally important in determining whether a claimant is deemed to be fundamentally dishonest, a fact which is not always considered by defendants who seek to extend the ways in which this can be relied upon.

S 57 indicates that the claim is deemed to be fundamentally dishonest if the dishonesty goes to the root of either the whole claim or a substantial part of it.  The court considers there is a public interest in identifying false claims and a claimant can be found to be fundamentally dishonest if they have acted dishonestly and this has substantially affected the presentation of the case.   It does, however, have to be relevant to the issues in the case.

In a case that bucks the trend to find claimants fundamentally dishonest, in Cojanu v Essex Partnership University NHS Trust [2022] the trial judge’s findings of fundamental dishonesty were overturned on appeal.  The claimant had been the perpetrator of a crime which resulted in an injury which was negligently managed. He lied about the cause of his injuries and denied the crime. It appeared that the claimant had not been honest about how the injuries had arisen.

However, the appeal judge considered that the mechanism by which he received the injuries was irrelevant to the success in the clinical negligence claim.   He did not need to prove how he had become injured.

It was accepted that initially the claimant did not say anything about how the injuries arose and at a later time he lied about it to the court.  He was certainly being dishonest in relation to his crime.  However, the mechanism by which his finger was injured was not relevant to the negligence.

It was not the case that the claimant’s credibility was irrelevant – it most certainly was.  However, his dishonesty on that specific issue was not relevant to the evidence in a civil claim.  It did not affect the liability part of the trial because liability had been determined on expert evidence and no criticism could be made of that.

In overturning the judgement the judge made the following comments:-

“First all citizens are equally entitled to come before the court in civil claims.  Those with a long list of previous convictions and those without.  Some will have better creditability than others but this is not a credibility barrier… barring those with previous convictions from bringing civil actions.  ….. negligent defendants must take their victims as they find them and not all victims are angels. … the primary rationale for Section 57 is to stamp out fraudulent and dishonest claims not to bar unrepentant criminals from civil law.”

In short, this case confirms that the fundamental dishonesty has to be pertinent to the issues in the case, the presentation of the case and the value of the claim.  If it is not, the credibility of the claimant may still be affected.  It does not necessarily mean however that they have been fundamentally dishonest in relation to their civil claims.

The reality is that all claims where fundamental dishonesty is finally alleged, will be judged on their own merits, being the circumstances of the case and the claimant’s account.  Solicitors can be held liable if they have not completed proper checks on their clients but ultimately for claimants this can be a very costly exercise if they are found to be fundamentally dishonest.  The increase in allegations of fundamental dishonesty is significant anecdotally.  Certainly, as a clinical negligence practitioner I am more aware of the possibility than previously.

All claimants should be advised of these issues at the start of a claim and on an ongoing basis.   In truth it is a tiny number of claimants who knowingly do not present an accurate view. However, there is a continued attempt by defendants to aggressively pursue these issues and to extend the number of cases and circumstances by which people can be deemed to be fundamentally dishonest.  Claimants and their lawyers have been warned.

Cyclists and Pedestrians – New Highway Code Rules

New Highway Code Rules Regarding Cyclists and Pedestrians

The Highway Code has recently been updated to include new rules which introduce a new hierarchy of road users, meaning that cyclists and pedestrians now have greater protection when using the roads. The hierarchy puts road users who are most at risk at the top. However, this has not been as widely publicised as it perhaps needs to be and there are still a lot of road users who are not as au fait with the new rules as they should be. This could in turn lead to an increase in road traffic collisions, as motor vehicle drivers start to get to grips with the new rules offering further protection to cyclists and pedestrians.

The new rules came into effect on the 29 January 2022, but not with the sort of fanfare that would have been required to bring these changes to the forefront of the minds of all road users. Three of the key changes, referred to as Rules H1, H2 and H3 are as follows:-

 

Rule H1 – It is important that ALL road users are aware of The Highway Code, are considerate to other road users and understand their responsibility for the safety of others.

Everyone suffers when road collisions occur, whether they are physically injured or not. But those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others. This principle applies most strongly to drivers of large goods and passenger vehicles, vans/minibuses, cars/taxis and motorcycles.

Cyclists, horse riders and drivers of horse drawn vehicles likewise have a responsibility to reduce danger to pedestrians.

None of this detracts from the responsibility of ALL road users, including pedestrians, cyclists and horse riders, to have regard for their own and other road users’ safety.

Always remember that the people you encounter may have impaired sight, hearing or mobility and that this may not be obvious.

 

Rule H2 – Rule for drivers, motorcyclists, horse drawn vehicles, horse riders and cyclists

At a junction you should give way to pedestrians crossing or waiting to cross a road into which or from which you are turning.

You MUST give way to pedestrians on a zebra crossing, and to pedestrians and cyclists on a parallel crossing (see Rule 195).

Pedestrians have priority when on a zebra crossing, on a parallel crossing or at light-controlled crossings when they have a green signal.

You should give way to pedestrians waiting to cross a zebra crossing, and to pedestrians and cyclists waiting to cross a parallel crossing.

Horse riders should also give way to pedestrians on a zebra crossing, and to pedestrians and cyclists on a parallel crossing.

Cyclists should give way to pedestrians on shared use cycle tracks and to horse riders on bridleways.

Only pedestrians may use the pavement. Pedestrians include wheelchair and mobility scooter users.

Pedestrians may use any part of the road and use cycle tracks as well as the pavement, unless there are signs prohibiting pedestrians.

 

Rule H3 – Rule for drivers and motorcyclists

You should not cut across cyclists, horse riders or horse drawn vehicles going ahead when you are turning into or out of a junction or changing direction or lane, just as you would not turn across the path of another motor vehicle. This applies whether they are using a cycle lane, a cycle track, or riding ahead on the road and you should give way to them.

Do not turn at a junction if to do so would cause the cyclist, horse rider or horse drawn vehicle going straight ahead to stop or swerve.

You should stop and wait for a safe gap in the flow of cyclists if necessary. This includes when cyclists are:

  • approaching, passing or moving off from a junction
  • moving past or waiting alongside stationary or slow-moving traffic
  • travelling around a roundabout 

The overriding message here remains that all road users are required to proceed with extreme caution in respect of their awareness of and duty of care towards all other road users. However, in this update to the rules, vehicles and even cyclists now must give way to any pedestrian who is either crossing or waiting to cross a road into which or from which the vehicle or cyclist is turning. This is a significant change to the rules, which could very well see an increase in accidents in which the vehicle driver or cyclist is deemed liable. I have dealt with many claims for clients who were crossing a road when they were run over and in which there have been disputes on liability, but in light of this new rule, we should now see less and less cases of liability being contested in such cases, as this particular requirement is weighted so heavily in favour of the pedestrian.

By the same token, I have dealt with many claims for cyclists, motorcyclists and other car drivers who have been badly injured when a car turning into or out of a junction has turned right across their path, giving them no chance to avoid a collision. With the introduction of Rule H3, there is once again a far greater onus on the road user performing the turn to only do so when it is completely safe. This will no doubt continue to be a factor which will be determined on the basis of the evidence on a case-by-case basis, as what one person deems to be a safe gap in the traffic may not be deemed safe by another. However, there is now a greater duty on road users to keep this in mind when making a turn, with the rules once again being weighted more in favour of the more vulnerable.

One potential issue I foresee is where a driver slows down and then stops to let a pedestrian cross a road that he or she is turning into, for example, but the driver behind that car is not paying sufficient attention and drives into the rear of the turning but stationary car. Ultimately, primary liability will always rest with the second car, but until ALL road users become completely familiar with this particular rule, I can see this being a fairly common type of accident, as drivers have previously always had right of way when making a turn, with pedestrians usually having to wait until it is safe for them to cross.

There are also some further new rules regarding cyclists which could potentially cause more problems than solve them. For example, cyclists are now able to ride in the centre of their lane on quieter roads, in slower-moving traffic and at the approach to junctions or road narrowings and they are now able to ride at a distance of at least half a metre from the kerb on busier roads where there are vehicles travelling at faster speeds than they are. I can certainly see situations whereby impatient drivers looking to get past these cyclists but being left with less room to do so safely still overtake the cyclist and in doing so, encroach even further into the opposite lane of traffic.

In summary, these rules have been introduced with a view to affording more protection to the most vulnerable of road users. However, as with any new rules, it will take some time for everyone to become completely familiar with them and in the intervening period, we could well see an increase in accidents befalling these most vulnerable of road users.

When is a claimant protected from adverse costs?

In the majority of injury claims, parties will attempt to negotiate a settlement rather than allowing the matter to proceed to trial. Part 36 is a provision in the Civil Procedure Rules designed to encourage parties to settle disputes without the need for trial, which provides a self–contained procedural code which has specific costs consequences.

In the recent case of Anna Louise Tuson –v- Debbie Murphy [2018] EWCA Civ 1461, the Court of Appeal considered the extent to which a claimant who was found to be dishonest and misleading was liable for adverse costs.

In this case, the claimant suffered injury to her arm after falling off a horse at a riding school run by the defendant. She suffered a psychiatric injury and developed obsessive compulsive disorder (OCD) as a result of the accident which was confirmed by two psychiatrists.  Liability had been admitted subject to an agreed deduction of 15% for contributory negligence.

The claimant gave up her job as a school teacher and issued proceedings with her claim initially valued at £1.5 million, based on the premise she would be unable to work again.

At the time of providing her witness statement, the claimant did not make any mention of a mess play workshop franchise which she had acquired and neither did her mother’s statement make any mention of the play group franchise.

When this was later discovered by the insurer’s solicitors, the claimant provided further witness evidence stating that she had not disclosed the playgroup franchise which she had only had for 12 months as she had never seen it as a means of employment but rather a means of getting out of the house with her son and making friends and as personal CBT therapy.

A week after receiving the further witness statements, the insurers made a Part 36 offer to the claimant which was open for acceptance without penalty until 8 October 2015 and which the claimant later accepted on 1 December 2015.

At a costs hearing, a judge ordered the insurers to pay the claimant’s cost only up to 1 April 2104 and for the claimant to pay the insurers’ costs thereafter, as he found the claimant had been dishonest and misleading and that it would be unjust to allow the usual costs order to apply.

The claimant appealed on the grounds that it was not unjust as the insurers had chosen to adopt the Part 36 procedure and did so at a time when they were in possession of the relevant facts. They could have chosen to make a Calderbank offer making it clear that costs would not be offered.

Relying on CPR 36.13(1), the claimant argued that she would have been entitled to her costs up to the date of acceptance, if she had accepted the sum of £352,060 on or before 8 October 2015.

Where a Part 36 offer is accepted outside of the 21 day period CPR 36.13(5) provides that:

“the court must, unless it considers it unjust to do so, order that a) the claimant be awarded costs up to the date on which the relevant period expired; and b) the offeree do pay the offeror’s costs for the period from the date of expiry of the relevant period [of 21  days] to the date of acceptance.”

CPR 36.13(b) states that in considering whether it would be unjust to make the orders specified above, the court must take into account all the circumstances of the case including, amongst other matters, the information available to the parties at the time when the Part 36 offer was made.

Giving the judgment of the Court of Appeal, Lord Justice Bean held that the claimant’s modest attempt to run a playgroup did  not amount to evidence that the claimant’s disability was fabricated and neither was it a case of gross exaggeration on the scale of Summers v Fairclough Homes Ltd [2012] 1 WRL 2004.  However, the claimant had deliberately withheld this information and the reasons she had given for this were unconvincing.  In his view the judge was entitled to describe the claimant’s conduct as dishonest and misleading.

Nevertheless he could not agree with the judge’s decision or reasoning, as he stated his judgment failed to grapple with the argument a Part 36 offer was unconditional, rather than a Calderbank offer, and that it was made with the knowledge of the claimant’s material non- disclosure.

He stated in paragraph 29 of his judgment:

“I agree that cost decisions are fact-sensitive and that it may be unwise to attempt to list the categories of case in which it would be unjust to make the normal order. But it is painting with too broad a brush to say that the decision is entirely a matter of discretion, either generally or even in any case where a party has behaved dishonestly.”

Lord Justice Bean referred to the authorities of Webb v Liverpool Women’s NHS Foundation Trust [2016] 1 WLR 3899 which confirmed that Part 36 is a “self–contained code” and Tiuta PLC (in liquidation) v Rawlinson &  Hunter (a firm) [2016] EWHC 3480  which confirmed that where nothing had emerged to show that the insurers’ assessment of the risks and benefits involved in making the offer is in some significant way upset, contradicted or misinformed, it is highly unlikely to be unjust to apply the default rule.

The Court of Appeal concluded that whilst the claimant’s material non-disclosure could be described as dishonest and misleading, the judge’s exercise of his discretion was flawed. The claimant was entitled to her costs up to the date of 8 October 2015 and the she remained liable to pay the insurers’ costs from 8 October to 1 December 2015.

This is an interesting case which illustrates the protection for claimants under Part 36 CPR. In addition, this specific framework provides clarity and certainty for claimants that they will not face retrospective penalties which are unjust or disproportionate.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

MIB’s ex turpi defence fails

The Motor Insurer’s Bureau (MIB) failed to succeed in a defence of ex turpi causa non oritur actio in the sad case of Liam Clark v Darren Farley, MIB and Ryan Edmonds which came before Mrs Justice Yip in the High Court in April 2018.

The claimant, Liam Clark, suffered a severe traumatic brain injury as a result of a road traffic accident on 16 September 2012. Liam was 15 years old when he was riding as a pillion passenger on a motorcycle driven by the third defendant, Ryan Edmonds.

Liam had been out with friends when he had found himself at Bold Forest Park near St Helens, Merseyside. There was a pathway in the park which ran adjacent to the M62 motorway and had become a regular haunt for motorcycle riders. The path had been nicknamed the “Mad Mile”.

Liam, for whatever reason, agreed to ride as a pillion passenger on Mr Edmond’s motorcycle and was driven along the “Mad Mile” during which time they were involved in a head on collision with a motorcycle ridden by the first defendant, Darren Farley. Liam was thrown from the motorcycle.  He was not wearing a helmet and suffered life changing injuries. Both Farley and Edmonds were riding without insurance or an appropriate licence.Liam made a claim for damages by way of his mother as litigation friend. He issued proceedings against Farley, Edmonds and the MIB under the Uninsured Drivers’ Agreement.

The MIB defended the claim in its entirety relying on an ex turpi defence. They stated that Liam was involved in a joint illegal enterprise with Farley and Edmonds by encouraging or assisting the offence of dangerous driving. If that defence failed, they alleged contributory negligence against Liam on two grounds:

  1. That he was to blame allowing himself to be carried on a motorcycle in such circumstances;
  2. That he was to blame for failing to wear a helmet.

Liam contested the first ground for contributory negligence but accepted the second regarding the helmet. The parties had agreed before trial that an appropriate reduction for failure to wear a helmet was 12.5%. That reduction was approved by Mrs Justice Yip.

In her judgment Mrs Justice Yip accepted that the riding of both Edmunds and Farley would meet the threshold for the offence of dangerous driving. She considered the Court of Appeal case of McCracken v Smith, MIB and Bell 2015 EXCA Civ 380. This involved a claimant injured whilst riding as a pillion passenger on a stolen motorcycle when it collided with a minibus. The case put forward a two-stage test in cases involving an ex turpi defence (1) consideration of whether the claimant’s conduct amounted to “turpitude” and (2) if so, whether the claim against each party involved is founded on that turpitude.

In Liam’s case, the alleged “turpitude” was the offence of joint enterprise in respect of the dangerous driving of the respective riders. Mrs Justice Yip considered the case of R v Jogee 2016 UKSC 8 which set down evidential burden to be satisfied in a case involving joint enterprise of dangerous driving. The test was effectively did Liam encourage or assist the rider in his dangerous riding. The test had to be applied to the case against each rider separately.

Mrs Justice Yip considered the facts of the case when applying the legal test. There was no evidence that Liam had been to the Mad Mile before and in fact Farley did not recall ever seeing him there before. She also found that whilst the path was referred to as the Mad Mile, that there was no evidence that it was used as a race track. The witness evidence indicated it was just a place where people would ride motorcycles up and down. She also rejected evidence from Farley that he had seen Liam riding a motorcycle on many occasions around a local housing state. Liam’s mother stated this was not true and Mrs Justice Yip preferred her evidence describing her as a “patently honest witness”.

After reaching those findings of fact, Mrs Justice Yip rejected the MIB’s ex turpi defence. She did not believe that Liam must have known that the motorcycle he was riding on was going to be ridden dangerously. She found no evidence that he encouraged or assisted Edmonds to drive dangerously. He was not a party to a criminal joint enterprise of dangerous driving and that also applied to the dangerous driving of Farley. She considered the respective blameworthiness of Farley and Edmonds and found that they shared responsibility for Liam’s accident on a 50/50 basis.

After rejecting the MIB’s defence, Mrs Justice Yip went on to consider the issue of contributory negligence. She found that Liam should have foreseen the inherent risk in riding as a pillion passenger along the path. Whilst he was young, he was old enough to be conscious of the general risks of motorcycles. She considered the relative blameworthiness of Liam and the causative potency of Liam’s actions The MIB contended for an overall finding of contribution including the failure to wear a helmet of 50%. Mrs Justice Yip rejected this saying she did not believe Liam’s responsibility was equal to the defendants (50% each) and made a total finding of 40%. Liam will now receive 60% of the total value of his claim and damages will be assessed at a later stage.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Fatal accident claims and divorce proceedings

The recent case of CC (Widow & Dependant of JC (Deceased) on behalf of herself and dependents v TD  highlights an interesting point on the issue of divorce and its impact on fatal accident claims.

CC brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 (as amended) and Fatal Accidents Act 1976 (as amended) for herself and her three children following the death of her husband, JC in a road traffic accident in June 2014. JC had died instantly after being struck by the defendant whilst crossing a road. The defendant had been driving more than twice the speed limit at 86mph and there was no question over primary liability. An allegation of contributory negligence was made against JC for his failure to use a nearby crossing, but rejected by the court. It was held that JC could not have anticipated not being able to cross safely considering the distance (more than 200m) between him and the defendant when he started crossing. According to the evidence, it was in the early hours of the morning, traffic was light and JC could have crossed safely but for the speed of the defendant’s vehicle. The court therefore found the insurers to be fully liable.

The assessment of the compensation due was complicated by the fact that at the time of his death, JC and CC were separated and living apart after their marriage ran into difficulties. And despite CC’s assertion to the contrary, there was every evidence to suggest they would have divorced but for JC’s untimely death. Indeed, CC had consulted solicitors who had issued divorce proceedings and these were not defended by JC. Furthermore, a decree nisi was issued six weeks after his death. Following Davies v Taylor [1974] AC 207, the court held that a reconciliation was no more than a “speculative” possibility.

Accordingly, CC’s claim for loss of financial dependency was limited to what she would have received by way of maintenance payment until 2020 when their youngest child turned 18. This was £10,500 per year based on the financial evidence provided. The three children were each awarded £5,000 for loss of intangible benefits having been denied the benefit of their father’s love and affection. In addition, bereavement damages of £12,980, funeral expenses and the cost of a memorial stone were awarded.

In this tragic case divorce proceedings were pending at the time of the fatal accident and the evidence was more or less conclusive that these would have been finalised but for the death. This affected the quantification of the claim, reducing the overall value significantly, saving the insurers a substantial sum of money.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

To helmet or not to helmet, that is the cyclist’s question

Working as a solicitor specialising in injury claims, I am all too aware of the frequency of accidents involving cyclists, often having life changing and devastating consequences including catastrophic head injuries. For those that cycle, the debate between whether one ought to wear a helmet or not is well rehearsed, where there is conflicting evidence about the protective value of helmets. Despite being well rehearsed, not enough is being done to address this and provide definitively protective head gear for cyclists. Though a relevant topic for all, this article is written with cycling in London specifically in mind, a comparably more dangerous place to cycle than the majority if not all of the UK.

The often quoted research conducted for The Journal of Product Liability in 1998 found that “‘there is no evidence that helmets reduced the head injury and fatality rates” and indeed produced some evidence to show that it increased it. Henry Marsh, the well-known neurosurgeon and author, claims that helmets do not impact on the likelihood of brain damage.

Some more recent research has suggested that helmets do protect against head and facial injuries. Certainly anecdotally, it does appear that many cyclists seem to know someone or know someone who knows someone that claims a helmet saved their life. However, the standard safety test is only that a helmet protects an average weight rider at a speed of 12 mph falling on a stationary kerb-shaped object at one metre: not much use if you collide into a vehicle moving at 40mph.

There is also evidence that drivers of vehicles are more likely to be careful when driving behind someone without a helmet on, as they appear to be less experienced cyclists. Conversely, the argument goes that if you are wearing a helmet on the road you are at greater risk of injury as drivers will be less careful when behind you. This evidence arguably calls for the need for there to be a steep change in the culture of the relationship between drivers and cyclists in London rather than concluding that one should not wear a helmet.

The law reflects the ambiguity in this area where failing to wear a helmet has not yet to date resulted in cyclists being found to being contributorily negligent whereas, by comparison, failing to wear a seatbelt and being injured in a road traffic collision attracts a presumption of contributory negligence and a reduction in damages in the order of 15 to 25%.

It is, understandably, difficult for cyclists to make a decision on this.  Though a huge amount of work is being done to make cycling safer in London with the building of cycle super highways, more needs to be done to address the safety of cyclists, not least funding research into affordable and protective head gear for cyclists to protect better against the horrific consequences of road traffic injuries sustained when cycling. Working in injury claims, my team and I see the consequences of road traffic sustained head injuries on a daily basis and, in my opinion, such investment in effective and protective head gear for cyclists could not come soon enough.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Child belts and car drivers’ responsibility towards child passengers

The recent judgment handed down by the High Court in Northern Ireland in ES (A Minor by Rachel Ann Savage Her Mother & Next Friend) (Plaintiff) v (1) Emma Savage (2) Darren Thomas (3) Wd Irwin & Sons Ltd (Defendants) & Hugh Savage (Third Party) once again highlights the legal duties on drivers carrying child passengers. In this case the claimant, who was two years old at the time suffered significant spinal and abdominal injuries whilst a rear, nearside passenger in her aunt’s car when it was involved in a road traffic collision with another vehicle.

Whilst there was no doubt that as a passenger, the claimant would recover compensation for the injuries she sustained against her aunt and/or the driver and the owner of the second vehicle, and indeed, proceedings were issued against all three, there was an issue as whether her injuries would have (a) occurred or (b) been as severe had she been properly restrained in a suitable booster seat.

The claimant had been placed in a booster seat which later transpired to be unsuitable for a child of her size and weight. The first defendant, the aunt, brought a claim against the claimant’s father as a third party to the proceedings on the basis that he had “approved” the booster seat used as he had placed the claimant into her seat.

There was a factual dispute over the accident circumstances, though the court eventually accepted the aunt’s version of events and found the other driver responsible for collision. However, he did not accept that the third party, the claimant’s father, was responsible for restraining the claimant in the car seat and found the aunt negligent in that respect. This issue of causation and contribution towards the injuries resulting from this negligence was to be determined later. However, there can be no doubt that the injuries would not have been so severe had the correct type of seat been used.

Drivers carrying child passengers under the age of 14 in their vehicles (unless an exemption applies) are under a legal duty to ensure they are in a correct car seat or wearing a seat belt or risk being fined up to £500. The Highway Code provides clear guidance on the type of seats/the way seat belts should be used having regard to the child’s age, height and weight.

It is not uncommon for drivers to be brought into legal proceedings for compensation and held partially responsible for injuries sustained by child passengers for their failure to ensure that the child was properly restrained in car seats/by seatbelts even if they are not liable for the actual accident. In the case of adult claimants of course, they can often find themselves with a reduction of damages if the medical evidence suggests that failure to wear a seatbelt caused or contributed to the severity of their injuries.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*