Personal injury

For more information or advice on an injury you may have received please contact Julie Carlisle, associate in our personal injury department.

The Association of Personal Injury Lawyers speaks up for claimants 

20 January 2012

Nick Starling of the Association of British Insurers (ABI) suggested at a recent Westminster Forum that far from attacking claimants, insurers are absolutely committed to paying people injured through another’s fault and that accident victims can obtain compensation direct from an insurer without the need to consult a solicitor of their own.

Thankfully Karl Tonks, Vice-President of the Association of Personal Injury Lawyers (APIL) was there to robustly shoot down such a suggestion, pointing out that the injured party has only one chance to obtain compensation, that the correct amount must be claimed on that one occasion, and that without independent advice, they have no idea of knowing what their claim is really worth.

He also spelled out the implications for claimants of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill :

"The catastrophically injured claimant may not be able to afford the care that they need. The seriously injured claimant may not be able to pay off their debts, run up whilst off work without sick pay. Many claimants, particularly in the current economic climate, are on low wages with poor sick pay provision. For them to recover only part of their damages in itself reduces access to justice. If I stole your wallet, would you be happy if I offered to give it you back - only with 25 per cent of its contents removed?"

Ministry of Justice official Robert Wright speaking for the Government at the event which was attended by HSE representatives, trade unions and employers, unfortunately left the audience in no doubt about the Governments true intentions in pushing through the legislation when he said: 

 "Solicitors have told us that claimants will have to think very hard before bringing claims. That's a change the Government wants to see".

So, at least we know what we are up against. A person injured through no fault of their own is to be positively discouraged from obtaining redress, and for those who do bring a claim compensation is to be partial at best.

Freedom of choice   

10 November 2011

Do you have Legal Expenses Insurance? This is a question new clients are asked when setting up the claim and considering how the case is to be funded. If you have, for example, a household insurance policy that includes a legal expenses clause then you may well be covered for a claim for personal injury. This hasn’t always been good news however, as most providers of what is called “before the event insurance” have deals with firms of solicitors on their panels which has meant that they have usually tried to restrict the insured’s right to choose whom they wish to instruct. This has upset those clients who place great value on being able to meet and speak to their solicitor on a regular basis and who wish to instruct someone in their locality. Panel solicitors can be based anywhere and not everyone in Oxford is happy to be represented by a solicitor in South Wales, for example.

Here at Henmans LLP we can still arrange to act for you by offering a zero success fee conditional fee agreement up to the point at which pre-proceedings negotiations fail and court proceedings have to be issued. At that point your freedom to choose your own solicitor kicks in and your insurers will usually be obliged to provide cover.

A recent High Court decision in relation to an employment law dispute also brings potential good news. The Court decided that insurers can no longer reject their policyholders choice of solicitor just because the firm selected are not on the panel and refuse to accept the panel rates.

This does mark a major success in what has been a long running battle over the extent to which the insurers can restrict freedom of choice on this issue. The battle continues however, and should you find that the terms of your policy suggest that you may have to use a solicitor 200 miles from your home address, remember that we can help you to find a way around this and to instruct the solicitor whom you choose to instruct!

Mobility scooter danger! 

23 June 2011

Arise in the use of mobility scooters by our increasingly ageing population is leading to calls for the blue rinse riders to be required to take out insurance.   The Law Society Gazette reports that Personal Injury Lawyers are asking for a review of the Road Traffic Act as the current law does not require scooter users to take out insurance, hold a licence or indeed to take a proficiency test of any kind.   The issue came to light recently following the serious injuries sustained by a 70 year old woman when a scooter crashed into her.   Opponents however argue that any requirement for them to tae out insurance would simply have the effect of adding costs onto vulnerable people who depend on the vehicles to be allowed to maintain their independence. 

Reported in the Law Society Gazette 26/4/2011

Compulsory mediation for accident victims?

16 June 2011

The government consultation document Solving disputes in the county courts contains a proposal to refer all claims up to a value of £100,000 to mediation information assessment sessions at allocation. 

The paper says: “These information sessions would provide an opportunity for the parties themselves, not just their representatives, to be given information about the mediation process and its benefits from a mediator.”

The government seems to think that lawyers are failing to advise their clients about mediation as an option and wants the independent mediators to be able to speak directly to the injured party.

Mediator Phil Hesketh of Hesketh Mediations, who is due to take part in the pilot scheme at Manchester Court Centre starting in July, says “Of course I like the theory - it may lead to a few more cases for me - but I hope they think this through. It would be invidious to put mediators in a position of quasi-advisers to parties about the best way to run litigation. And what damage would it do to the partnership I believe needs to exist between lawyers and mediators? I strive hard at every mediation never to come between a solicitor and his/her client, that relationship is sacrosanct”.

HEADWAY  - working for brain injured clients

13 June 2011

Visits were made earlier this year by the personal injury department to the charity Headway, the charity that works to improve life after brain injury by giving help and support to those with acquired brain injury, and to their families.

An acquired brain injury is one caused to the brain since birth with possible causes including a fall/blow to the head, a road traffic accident, tumour or stroke.
If the head receives a severe blow or jolt it can result in traumatic brain injury.

Firstly we visited the national charity’s new head office premises in Nottingham where they now have spacious offices, a training centre, meeting rooms, and also new helpline facilities.

We then visited Headway Oxford, a separate charity based in a catholic church in Kennington.  Although the offices are in a portacabin in the grounds, the church building itself provides plenty of space for the drop in/meeting centre for brain injury victims.

Carers can drop the brain injured person off at around 10.00 – 10.30 am and leave them there until 2.30 – 3.00 pm whilst they get some essential respite.  Whilst there the head injury victims have opportunities to exercise, there is a quiet room with chess and books and then the main room which is where different activities take place such as tai chi, yoga and painting.  They have access to a computer suite and take part in days out. 

At present the centre is open every day.  On Wednesdays it is available for high dependency users only.  They also organise weekends away/holidays for carers who have the option to bring their dependent, or to come alone if alternative care can be arranged.  The service is obviously well used and well attended and must be a life saver for the families concerned.  They do, however, face a funding crisis.   Cuts in the council budgets mean that funding will be even more scarce this year, on top of which the catholic church is planning on vacating the premises and will be offering the charity first option on the property. Headway Oxford have as yet no idea where the money to purchase it would be found.  They have managed to secure enough funding from the council to ensure that the carers holidays can happen for another year but the future thereafter is unfortunately uncertain.

Check the Headway website for more information



The “Compensation Culture” debate rages on

10 June 2011

Conservative MP for Stockton South James Wharton is the latest public figure who should know better to raise the spectre of the “Compensation Culture”. He made the comments after a school pupil received £11,000 in damages for a scald. He said: "The Government has said it wants to see an end to this compensation culture and for me that can’t come soon enough."

The Association of Personal Injury lawyers (APIL) wrote to the Daily Telegraph and selected regional newspapers this week rejecting the suggestion that such a phenomenon exists, pointing out that the comments were based on myths and misconceptions and that injured people have a right to fair redress. Even Lord Young, asked by the Coalition government to look into this issue, has stated in his report Common Sense, Common Safety, that it comes down to perception rather than reality. Lord Young also said that “it is right that people who have suffered injustice through someone else’s negligence should be able to claim redress. It is a basic tenet of law and one on which we all rely”.

As Apil states in their letter, the truth is that negligence can shatter lives and it is only right that victims of needless injury are allowed to pursue proper redress to help put their lives back together. "The constant belittling of this right can ultimately dissuade the most vulnerable people from claiming the care and compensation they so badly need."

To read APIL's letter in full, click here.

When work really can drive one to drink…

6 June 2011

The Court of Appeal recently considered the extent of an employer’s liability for an injury sustained by an employee whilst drunk.

In Dalling v, R J Heale & Co Ltd, CA, 5/4/11 the employee suffered a second accident some three and a half years after an accident at work. He has sustained head injuries leaving him with some dysfunction in the first accident, for which his employers were liable. The question was whether the employers could be found liable for the second accident which occurred when he fell over whilst drunk. 

The Court of Appeal upheld the trial judge’s decision that the appellant employer was two-thirds responsible. The judge accepted expert evidence to the effect that the head injuries sustained in the first accident had reduced the employee’s ability to control his drinking and had the effect of potentiating the effect of alcohol upon him. The Court of Appeal held that the judge had been entitled to hold that the injuries sustained in the second accident were causally related to the first accident and that it was not unfair or unjust to hold the appellant liable to the extent of two-thirds of such subsequent injuries. In particular, the employee’s actions in getting drunk when the second accident occurred was not an act of free volition but rather was an act for which both he and the appellant were jointly and partly responsible.

 

Corporate manslaughter appeal

23 May 2011

The first firm to be convicted for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 has lost its appeal against the conviction. Cotswold Geotechnical Holdings Ltd is a small construction firm. In 2008 a young Geology graduate died when the deep trench that he was working in collapsed on top of him. The company’s system of work was found to be dangerous and went against industry guidance prohibiting entry into unsupported pits more than 1.2 metres deep. Lord Chief Justice Lord Judge upheld a £385,000 fine in the Court of Appeal last week, but acknowledged that it is "unavoidable and inevitable" that the company would probably have to go into liquidation to pay it.

 

Hairdressing Regulation Ahead  

23 May 2011

Calls are being made for the proper regulation of the hairdressing industry to ensure better standards are met.   The Association of Personal Injury Lawyers and the Hairdressing Council are supporting each other in the joint campaign which will give qualified hairdressers the professional status they deserve, and avoid the damage done to customers, particularly in relation to the use of chemicals.   The campaign calls for regulation and also highlights the hazards faced by consumers, particularly in relation to the failure to properly carry out skin allergy tests.   Former hairdressers and MP for Morecombe David Morris has pledged to start work on amending the Hairdressers (Registration) Act 1964 to make registration with the Hairdressing Council mandatory.

 

Beware of the Bull

20 May 2011

Ever been on a country walk and hesitated before crossing a field with a bull? The answer used to be to know your breeds, as the Wildlife & Countryside Act 1981 states that certain bulls cannot be kept in a field which has a public footpath. The breeds are defined as Ayrshire, British Friesian, British Holstein, Dairy Shorthorn, Guernsey, Jersey and Kerry.   Following the death of a walker in Nottinghamshire last November which involved a Brown Swiss Bull the Association of Personal Injury Lawyers is campaigning for a review of the list.   Probably best to avoid them all, whether or not you are in red.   If you are anyone you know has been injured in an accident involving cattle or other livestock contact Julie Carlisle on Julie.Carlisle@henmansllp.co.uk 

 

UN Decade of Action for Road Safety - tackling traffic related death and injury

13 May 2011

On Wednesday 11 May the UN launched the Decade of Action for Road Safety with events planned around the world. A Global Plan outlines a range of activities with the aim of stabilising and then topping the predicted rise of annual road deaths from nearly 1.3 million to 1.9 million by 2020. UK charity and Campaigning Group RoadPeace are concerned however that the actions proposed  focus more on protecting car occupants than on pedestrians and cyclists and globally the use and ownership of cars is still predicted to rise with all the problems for environmental and public health that that implies. If you have been injured in a road traffic accident, whether as a driver, passenger, pedestrian or cyclist, contact Julie Carlisle on Julie.Carlisle@henmansllp.co.uk

 

New employers liability tracing office open

13 May 2011

Good news for claimants, particularly those who face the task of searching back over years of employment when employers have ceased to trade and their liability insurers are unknown.

The new ELTO service aims to help those who have suffered injury or disease in the workplace identify the relevant EL insurer quickly and efficiently

The service has been introduced to make it easier to search for EL insurance policies using a central database – containing all new and renewed EL insurance policies from April 2011, policies from before April 2011 that have new claims made against them and policies that were identified through the previous tracing service, the voluntary Employers Liability Code of Practice.

 

Bad news for claimants

4 April 2011

Proposals to tackle Britain's "damaging compensation culture", control legal costs and divert cases from courtrooms into online resolution have been unveiled by the justice secretary, but as one of the key initiatives is to make injury victims who use "no win, no fee" agreements liable to pay their own lawyers' success fees, claimant practitioners are not seeing this as an unqualified piece of good news.

The concern is that the changes could have a deterrent effect on those seeking access to justice although the justice minister Jonathan Djanogly denies this.

Also included in the proposals is a plan to expand an online system for dealing with road traffic accident claims to include personal injury and clinical negligence cases.

Claims worth up to £50,000 in such cases could now be dealt with online – up to 90% of  claims.

Andrew Dismore, co-ordinator for the Access to Justice Action Group (AJAG), responded by saying that the announcement is very bad news for claimants. “One in four will no longer receive the compensation to which they are entitled. Three out of four will lose up to 25% of their compensation in legal bills which should be paid by those responsible for the claimant's injuries – the defendant's insurance company.[Such companies] are today's big winners, by many millions of pounds, money taken from the pockets of those injured at work or on the roads or in hospital through someone else's fault, and badly needed by them."

The Law Society also disputed the idea that doctors and businessmen need to be 'protected' from frivolous legal cases because UK society has become too litigious. The society's president, Linda Lee, said the proposals were abhorrent for those who have suffered genuine injury.

"The Ministry of Justice is about to implement a devastating attack on access to justice in the mistaken belief that ordinary people will be able to stick up for themselves against local and central government, the medical profession, landlords, big business and other authorities.

"Taken together with the government's legal aid reforms, these plans on civil costs funding mean that ordinary people won't be able to obtain proper redress for the wrongs they have suffered."

The proposals will take some time to implement therefore anyone considering a claim for personal injury would be well advised to start the process now and avoid being caught by the changes.

 

Sound off for justice

11 February 2011

The Conservative-led government’s proposed cuts to the legal aid budget are causing great concern to the legal profession who fear that, on the whole, the public are unaware of the importance of legal aid in providing support to those most at risk of being excluded from access to our legal system.

Civil legal aid is to be cut by 68%, which means that all debt advice and a large part of housing law will no longer be covered. Citizen’s Advice Bureau and Law Centers, to whom the least advantage members of society generally turn, are to have their budgets slashed by £50 million. This means that at a time when advice on debt and housing problems is most likely to be sought due to the economic circumstances, the organisations that traditionally provide that advice may well be closing their doors for good.

The Law Society has launched a new internet campaign to educate and engage the public in the defence of legal aid. Please help us get the message to your colleagues, clients and friends. View the website at: www.soundoffforjustice.org

 

Hair dye allergy dangers

17 December 2010

Surveys have been carried out which suggest that 85 per cent of hair salons in London, and 90 per cent of hair salons in Edinburgh and Belfast do not carry out routine skin allergy tests before a applying colour treatment.  

Hair dye allergies are one of the most common arising from beauty products and can cause burning sensation, redness and itchy scalp at best and allergic contact dermatitis at worst leading to eczema and hives and other skin conditions, some with long term implications.  

The skin allergy test is simple, quick and gives a good indication of whether the customer has a sensitivity to allergens contained in hair dyes such as PPD.  

The Association Of Personal Injury Lawyers is currently running a campaign to alert consumers to the dangers of not having a skin allergy test and a press release has been issued as part of the campaign in Northern Ireland in the midst of the Christmas party season, which is the busiest time of year for salons, to urge the public to insist on a skin test if they are not offered one.  

To see APIL’s press release, click here.

 

Fatal horseriding accident claim

10 September 2010

We represented the claimant who brought a successful fatal accident claim for substantial damages following the death of his wife in a road traffic accident. 

The claimant's wife was riding her horse along a country road with their daughter when a lorry owned by the defendant came along the road in the opposite direction and caused her horse to scare.  She fell to the ground and was hit by the lorry. She died at the scene. The claimant alleged that the lorry was travelling too quickly, ignored his wife’s hand signal to slow down, failed to slow down and caused a loud bang which caused the horse to scare. Further, the lorry should not have been on the road in any event as there was a 7.5 tonne weight restriction. 

Liability for the accident was denied by the defendant. The defendant said that its driver did slow down and did not act negligently. The defendant relied on the police reconstruction report which concluded that the lorry was travelling at approximately 9 mph at the time of the impact.  The speed at which the lorry approached the horses was not clear.  Each party was permitted to obtain its own reconstruction report and we also obtained a report from an equine expert.

Settlement was reached without the defendant admitting liability but the settlement shows that the defendant recognised the strength of the claimant's case.  The Highway Code says drivers should pass horse riders wide and slowly.  There is no requirement always to stop but a request to slow down or stop should be heeded.  A number of questions arise, such as what is a reasonable speed in the particular circumstances.  In this case there was a large, noisy lorry over the weight restriction for the road travelling on a country lane where it filled the entire side of its carriageway.  In these circumstances it is highly arguable that the driver should have taken greater care, and had he done so this tragic accident would have been avoided.

 

Henmans obtains lump sum of over £3m and annual payments of over £100,000 for injured pedestrian

12 August 2010

In 2004 the claimant, who was 19 at the time, was crossing the road when he was hit by a car. He sustained extensive brain injury that left him in a coma for nearly three weeks after the accident and with amnesia for six months thereafter.

The claimant needed cranial surgery several times over the next two years. Despite many months of physiotherapy and rehabilitation he was left with epilepsy and severe disabilities, both mental and physical, that meant he would need round-the-clock care for the rest of his life. His life expectancy was shortened by 8-10 years.  

Henmans obtained damages from the defendant driver's insurers, who partially admitted liability, that covered past and future medical bills, costs of past and future care, costs of adapting his accommodation, travel costs and a sum for pain and suffering. The full case report can be read here.

 

12 July

Cycle injury: cyclist not to blame

ALEXANDER KOTULA v (1) EDF ENERGY NETWORKS (EPN) PLC (2) MORRISON UTILITY SERVICES LTD (3) BIRCH UTILITIES LTD (2010)  

The claimant cyclist suffered severe injuries when he fell into poorly constructed road works and then was hit by a passing lorry.  It was argued that he was partly to blame for his injuries because he rode on the pavement, but the judge came to the view that this was reasonable in the circumstances because the road was so busy.  It was the defendant that was entirely negligent and the cyclist was not to blame. 

 

8 July 2010

Car accident whiplash Injury

PHILLIP DAVIDSON v MUSTAFA MUSTAFA (2010)  

The claimant suffered whiplash injuries following a car accident and won damages of £3,353 on a no-win no-fee basis. He was unable to perform manual work for several weeks after the accident but was expected to make a full recovery within eight months from the date of the accident.  Such injuries are sadly too common and can cause considerable discomfort, making the instruction of experienced lawyers essential in order to ensure claimants receive the best advice.

 

29 June 2010

Recommendations following E Coli outbreak

In 2009 93 people were infected with a potentially deadly strain of E Coli 0157 after visiting Godstone Farm in Surrey.  Those infected were mostly young children. 17 of those affected developed serious complications and eight needed kidney dialysis. Some individuals have been left with permanent kidney damage and may need a transplant in the future. BBC News has reported that 28 of the people who caught the disease are bringing claims against the farm owners.

The Health Protection Agency has investigated the outbreak. Professor Griffin’s report says that Godstone Farm carried out an inadequate risk assessment in relation to visitors contracting the infection. The farm owners relied on members of the public to control the risk themselves, through hand washing. In order to reduce the risk of farm visitors contracting E Coli, contact with animal faeces must be avoided. Godstone Farm used “deep litter” bedding. Deep litter is only changed on a three monthly basis and, in the interim, clean bedding is put on top of the soiled bedding. The report states that this form of bedding should not be used in visitor areas and that  “ This outbreak could very likely have been avoided if more attention had been given to preventing visitors being exposed to animal faecal matter.”  The report also concludes that the staff at the farm were poorly trained in health and safety matters.

The report identifies that it was not only the farm owners that were at fault. Some GPs did not treat the illness as a medical emergency and wrongly advised parents of the children affected that they could go home and that the children would recover on their own.

The report’s six top recommendations are:-

• Farm operators should ensure that the layout and design of public areas are such that visitor contact with animal faecal matter (particularly ruminant) is minimised or eliminated
• There is a need to raise public awareness of the potential infection risks when arriving at a farm attraction, emphasising the parent/carer’s decision to allow children to have animal contact
• There should be a reassessment of the risk of E coli O157 infection as ‘low’. Its probability may be low but the impact is high and the consequences very severe
• An Approved Code of Practice should be developed for the Open Farm industry, involving relevant authorities and in close consultation with leading representatives of the industry to underpin the industry’s initiative in establishing an accreditation scheme
• The regulatory agencies and others should explore ways of working together in regulating Open Farms clarifying roles, responsibilities and relationships
• Research should be pursued to assist clinicians in the rapid diagnosis of E coli O157 and the identification of and treatment for children likely to develop severe complications of the infection. Research should also be undertaken aimed at preventing or limiting carriage of the organism in animals

A full copy of the report is available at: http://www.griffininvestigation.org.uk/report/full_report.pdf

An estimated 5 million people visit open farms in Britain each year. The report highlights that key changes need to take place in relation to how visits to farms are run and monitored. There also needs to be greater public awareness about the risk of contracting E Coli, and how to prevent against it in order to ensure that a similar outbreak does not occur in future.

 

10 June 2010

Are swimming pool operators responsible for unsupervised children?    

In R v Upper Bay Ltd (2010) a seven year old child suffered brain damage after he nearly drowned. He had been left unsupervised by his father and he was not wearing arm-bands. The swimming pool operator was found to be responsible for the injuries that the child sustained and also received a criminal conviction under the Health and Safety at Work Act 1974 for failing to ensure that the child was safe during his visit to the pool. The swimming pool operator appealed against its conviction arguing that, in the circumstances, the child’s father should have been responsible for his son’s safety.  

The appeal was dismissed.  It was decided that the swimming pool operator was guilty as it was reasonably foreseeable that a small child may escape from their parent’s supervision. The appropriate safety measures should have been in place.

 

20 May 2010

Research shows 92% of UK hospitals are failing head injury patients

Figures have been released today that show 92% of all hospitals in the UK are failing to provide patients with satisfactory written information following minor head injuries, which could lead to serious health implications and put lives at risk.

The results show just 21 of 254 A&E departments across the UK provide minor head injury patients with leaflets containing all the key information as recommended by guidelines. The figures were issued by Headway – the brain injury association, having been collected and analysed by researchers at Warwick Medical School at the University of Warwick. The research comes as Headway launches its annual Action for Brain Injury Week from 17-21 May 2010. For further information, visit http://www.abiweek.org.uk/.

 

17 May 2010

Compensation for children who have injured their fingers in Maclaren buggies  

It is estimated that more than 40 children in the UK have lost fingertips after trapping their fingers in the hinges of Maclaren buggies. Last November there was a mass recall of Maclaren buggies in the US when several children suffered finger laceration. When this was reported in the UK, individuals began contacting the BBC News website about their similar experiences. Once the dangerous fault was identified UK customers were provided with protective hinge covers.  

The company has not admitted liability for the injuries, but it has agreed to compensate those children who have been “genuinely” injured. It is thought that the children will be awarded between £2,500 and £10,000 in compensation. The amount of compensation received will depend on the seriousness of their injuries. 

 

14 May 2010

But he was driving too fast!  

In Murphy v Smith News Trading Ltd v Anor (2010) an individual was injured when the vehicle he was travelling in collided with a lorry. He brought a claim against the lorry driver, who had been driving in excess of the speed limit, and the car driver, who entered the junction on a red light. Even though the car driver entered the junction on a red light, he argued that the lorry driver should take some responsibility for the accident as he was driving too fast.  

The court found that the accident was entirely the fault of the car driver. The fact that the lorry was speeding was not a cause of the accident.