When to act?

In order to stand the best chance of a successful claim for personal injury it is advisable to act as quickly as possible. The sooner an accident claim solicitor becomes involved the better, they are then able to sit down with the injured party and advise them from that stage on their prospects of success and how to proceed. It is always better for a statement to be taken as soon after the accident as possible when events are significantly fresher in the mind and before the finer, and sometimes crucial, details are forgotten. Acting quickly can often save money as correspondence can be started aiming at settling the claim out of court. If a claim has no merit and would likely fail in court it is better to be advised of this at the earliest possible stage before incurring all the costs involved in litigation.

How to pay for it?

Most accident claims solicitors offer a ‘no win no fee’ agreement. This is sometimes referred to as a ‘conditional fee agreement’ (CFA) and is a method of claiming for personal injury without having to pay for your lawyer unless you win. In order to enter into a CFA the solicitor will analyse the prospects of a claim being successful. This is a good early indicator of whether it is worth proceeding with a claim. If the solicitor decides that the prospects are good and offers to proceed on a CFA then there are really no downsides in doing so. If a solicitor advises that the prospects are not good and is not willing to enter into a CFA then it may not be worth pursuing the claim and privately funding it; especially considering that upon losing the other side’s cost are likely to become payable as well. In order to account for the risk of not being paid the solicitor is allowed to charge a ‘success fee’ of up to 100% of their costs for acting. This fee will be payable if you win your case. Insurance can be taken out to cover a situation where the case is lost and the Defendant’s costs are ordered to be paid. The insurance premium is sometimes paid by the solicitors themselves.

It really is a win / win situation:

• If you win your case – you receive damages from the Defendant and they pay the costs of the solicitor including their success fee; and

• If you lose your case – the insurance policy pays the Defendant’s legal costs and you walk away no worse off.

How much will I receive?

The compensation that a court will order is dependent on a number of factors and each case turns on its individual facts. Court awarded damages are based on the type of injuries sustained and also any losses incurred as a consequence of the accident such as a loss of earnings or medical expenses. Special damages can be claimed for loss of earnings, damage to property, travelling expenses, special equipment required, assistance and care required, prescriptions etc.

Many cases are settled before the court case takes place. An offer is likely to be slightly less than a court would order but that takes account for the chance that a court might dismiss the claim or take a different view on how much should be awarded in damages.

A leisure centre in Barnstaple has had to pay out to a member after they were harmed whilst on a defective cycling machine. The bike pedal suddenly stopped working when the member was using the machine during a spinning class. This resulted in the member falling off the bike.

As a result of the accident, the member broke her finger. This was not the first time this particular member had been injured by this machine. Not long before this incident, the individual had suffered various bruises when a different part of the machine broke off. This demonstrates that the machinery had been defective for a while, and yet the leisure had failed to inspect and repair the machinery, or if needed, replace it.

Although the injuries this particular individual suffered were minor, her experience does call into question the quality of machinery that is being used in leisure centres nation-wide.  Gym machinery is built to endure even the most professional athletes, who have some of the most rigorous exercise routines. For it to break under regular use suggests that the quality of the machinery gyms are now placing in their organisations is very low. For parts of the machines to break, not only does this suggest that the machinery being used is not fit for purpose, it also poses a real danger to the health and wellbeing of the members involved.

 It is unlikely that this Barnstaple gym is the only gym that has experienced faulty, defective machinery. As the economy is yet to show any significant signs of improvement, there has been intensive competition witnessed across all industries, particularly in the drive for consumer loyalty. This has meant that in many industries, competitive pricing has driven some prices down. This is true for the leisure centre industry – some gyms (particularly the smaller, less-established brands) offer all-inclusive membership for just £19.99 a month.

It is therefore possible that we will witness a rise in the number of machine-related injuries at gyms across the UK, as the companies are both losing members, and having to charge cheaper membership rates for those that remain loyal. This means they generate less profit, and so invest less in maintaining the machinery they have. Old machinery that may need to be repaired/replaced may therefore go unnoticed by the employees, potentially causing severe injuries to any members that use them should they break or stop working.

Leisure centres should take note – despite feeling the purse strings tighten, they should always ensure they maintain and review all the machinery they use in their centres. They have a responsibility and a duty to ensure they do this, as should a member injure themselves on the company’s machinery, the leisure centre may find they have to pay out a vast sum in compensation (depending on how serious the member’s injury is). Any compensation payment that is paid is likely to be higher than the cost of maintaining the machinery, particularly if it is for a serious injury. Leisure centres should therefore open their tightening purse strings in order to ensure that the machinery they supply to their members is fit for purpose, and of satisfactory quality, so as to avoid vast potential losses in compensation payouts.

Whiplash is the name given to an injury to the neck which results in chronic neck pain. It is caused by the tissue in the spine becoming stretched and strained after sudden movement to the body, commonly incurred after a car accident. The problem is that whiplash, being a soft tissue injury, is difficult to disprove as it shows few physical symptoms.

While whiplash is a very real condition the number of people claiming whiplash after car accidents is suspicious to say the least. Whiplash is becoming big business for solicitors, doctors and the public alike. In one year there were 432,000 whiplash claims in the UK and the number of whiplash claims have risen by a quarter since 2002, very surprising since statistics released by the police show that the number of accidents on the road are actually decreasing. It would also mean that we all have very weak necks considering 70% of car accidents result in whiplash claims compared to only 5% in France.

Whilst some are profiting from whiplash others are suffering as a result. Whilst we may not feel much sympathy for the insurance companies who pay out for whiplash claims, it is estimated that they are costing innocent motorists £1.9 billion a year, through increased premiums being passed on by insurance companies.

In an attempt to combat this crooked industry, the Government are considering a number of proposals including banning referral fees. This is because it is believed that one of the reasons why there has been an increase in whiplash cases is that insurance companies sell details of customers involved in car accidents to solicitors and claim management companies, who effectively cold call the public and arrange whiplash compensation. This is very profitable for the solicitors in particular as they can earn over £1,000 per case. You could argue that through these practices insurance companies are encouraging fraud.

Of course fraudulent insurance claims are not limited to whiplash; they exist across the insurance industry from people losing items on holiday to break-ins at home. Britain is becoming a nation of fraudsters with those who don’t make claims the ones who really suffer. Everyone needs to do more, from the police who investigate claims, the doctors who should investigate symptoms, the lawyers who may encourage bringing false claims and the government who should tighten legislation.

Even personal injury solicitors can sometimes make bad legal judgment or business decisions as is shown by the fact that Manchester firm Donns LLP entered administration on 23^rd March 2012. PricewaterhouseCoopers (PwC) have been appointed as administrators for Donns LLP and their job will be to maximise recovery for Donns LLP’s creditors.

Donns LLP had offices in City Wharf, New Bailey Street, Manchester and their closure has meant that over 42 staff have been made redundant. According to Companies House, Donns LLP’s liabilities exceeded its assets by some £5.5m in the 2009 – 2010 financial year rendering them insolvent. It is believed that Donns LLP were attempting to restructure their banking arrangements at the time of entering administration and that at the time of closing Donns LLP had over 2,000 open cases.

Donns LLP was founded in 1969 by solicitor Raymond Donn. They specialised in financial miss-selling and personal injury (PI) litigation. Clients of Donns LLP need take no action at the moment as following their administration a number of firms have bought Donns LLP’s cases. The two main firms who have taken over from Donns LLP are national firm Irwin Mitchell who have taken over the PI cases and Blackburn based C Turner Solicitors who have taken over financial miss-selling cases. Both firms will take over files provided Donns LLP’ clients consent to the change and both firms will be writing to the clients accordingly. Alternatively, Donns LLP’ clients can appoint another firm of solicitors to represent them. If you are a client of Donns LLP you can speak with C Turner on 01254 688 400 or Irwin Mitchell on 0800 23 22 23.

Like many other law firms cash flow became a serious problem for Donns LLP, especially firms specialising in personal injury, where work is only paid for once there has been a successful outcome, either by a case going to court or through a negotiated settlement. Although many personal injury firms do take out insurance in order to get paid for working on unsuccessful claims.

Nevertheless, it is advised that law firms, especially those with LLP status, regularly keep an eye on their management accounts and where necessary take advice from third party advisors before it is too late. This is because whilst law firm managers may be intelligent at generating business they are not accountants and it is easy to overlook cash flow issues.

In news which shows that personal injury lawyers, like them are not are a breed apart from most lawyers and often more like business people than lawyers, a new firm has started up utilizing marketing tactics which may still seem anathema to most lawyers.

The fact is that a lot of marketing is about being creative, taking calculated risks, measuring results and perhaps above all, standing out from the crowd, and the firm of Hornby Baker Jones and Wood in Newport, South Wales are certainly trying some different ways of establishing their brand.

Firstly, they trade as Victorious Claims, a very compelling brand name for a personal injury and medical negligence practice. The brand identity also includes extensive use of the human element being the 3 partners of the practice and perhaps more innovative and risky of all, the business has a fleet of branded cars and a minibus – this may create a perception or dome jokes about ambulance chasing.

We say good luck to Victorious claims, innovation in legal practice is long overdue and personal injury firms are at the forefront.

Many people believe that the courts will necessarily follow to the letter the provisions of the Highway Code. A recent case shows that whilst the code is always useful for a court it is not necessarily determinative of liability.

In the case in question, Smith v  Kempson (2011),  a motorist was in collision with a motorbike. The motorist was turning right from a side road onto a main road, and as is often the case, her view was obstructed by some by parked cars.

The interesting thing about this case, and the motorist may have been liable anyway using the Highway Code rules, was that the Judge specifically took into account evidence that the motorist followed the route in question regularly, she was familiar with the area and should have been fully aware of the dangers and need for extra caution. The Court therefore decided that the error was on her side.

In addition, the case reiterates that there are no definitive rules on liability in the situation where a car is attempting to turn onto a major road from a side road and that relevant evidence will be take into account all factors such as speed and actions of both parties involved in the accident, knowledge of the area and so on and so forth.

Don’t forget also that in this area of law as with negligence cases generally and some other areas of law also, not every case is won or lost in a black and white sense. It is common for a court to find that both parties are partially at fault and to apportion liability accordingly.