Mr S was riding his bicycle along Waverley Road in Southsea, Hampshire. A lady motorist (the Defendant) was driving her car along the same road in the opposite direction, as she attempted to turn into Waverley Grove she cut across Mr S and in doing so forced him to brake hard, swerve and fall from his bike into the road hitting his knee against the kerb. As a result Mr S suffered a personal injury to his knee.
The lady did stop to see if he was alright but did not leave her details so Mr S took a note her vehicles registration. Mr S contacted the Defendant’s insurers and explained what happened. their response was that they are not accepting liability and that if he wants to pursue this matter he should contact a solicitor.
The bike had cosmetic damage to the pedals, gear shifter and rear gears, he ripped his Skinz top and gloves.
Mr S wanted to make a claim for his injuries and damaged items so searched the internet for a suitable personal injury lawyer and chose Hayward Baker Personal Injury Solicitors. Once everything had been explained in simple easy to understand terms Mr S signed the paperwork instructing Hayward Baker Personal Injury Solicitors to pursue his claim for compensation. Mr S wanted to take out an After The Event (ATE) insurance policy to protect him against the risk of losing his claim. This was because of the telephone call he had previously with the defendants insurers and that they said they would not accept liability for the road traffic accident. Hayward Baker arranged the ATE insurance for him.
As the current estimated value of the claim was worth less that £25,000.00 Mr S’s solicitor informed him that his claim would run under a scheme know as the “Pre-action Protocol for low value personal injury claims’.
In accordance with the above scheme his solicitor had sent the claims notification form (CNF) to the defendant insurers. This form contained everything to enable the insurers to consider the claim and in particular contained the following allegations:
‘The reason we are alleging fault is that you failed to observe or heed the claimant who was in the opposite carriageway to you and pulled into his path causing him to fall from his bicycle.’
The response from the defendant insurers was predictable and they had indeed denied liability on the basis that Mr S was riding his bicycle on the pavement and hit the kerb and fell off his bike of his own accord’
Hayward Baker wrote to Ms S informing him of the liability decision and that because of this the claim will now come out of the low value scheme and his solicitor would now have to investigate liability for his accident. To aid his solicitor in this task Mr S was asked if he had any witnesses to his accident and if so to provide the details as soon as possible. He was also asked to return his completed expenses questionnaire so his solicitor could draft a schedule setting out his losses.
Mr S replied and denied he was riding on the pavement and that he fell off the bike in the middle of the road and the circumstances of the accident were as he originally stated. The police were called and he told them exactly what happened. His solicitor said they would obtain a copy of the police report to see what it contains. Mr S confirmed he had seen his GP and had a session of physiotherapy for his knee.
Hayward Bakers job was now to obtain the Police report, details of Mr S’s wages details from his employer for the loss of earnings claim and to draft the out of pocket expenses schedule to include a loss of earnings claim, cost of damaged items and cost of purchased items so far.
The police report arrived and stated the circumstances as described by Mr S. The report also said that the police had asked if the lady driver would have known she caused him to come off his bike. Mr S had informed them that yes she would as she shouted at him and said he was going to fast on his bike. There was also a witness to the accident on the report.
Mr S had also checked his Garmin that confirmed he was travelling 13 mph at the time of the accident.
It also transpired that the witness did not actually see the accident happen. The issue now was that Mr S has a feasible explanation to how the accident happened but so does the car driver. Also Mr S admitted just prior to joining the road he was cycling on the pavement. There were no actual witnesses and it would be difficult for Mr S to prove his claim in Court and if he does not then a judge may just dismiss the claim.
Hayward Baker did contact the person named in the police report as a witness but she informed them that she came out of her house after Mr S was knocked off his bike. She did hear the woman say she hasn’t got time and drove off, so she called the police.
Another potential witness was contacted who was standing in his front garden when the accident happened and was looking over in that direction while he was smoking a cigarette. He stated that he was happy to sign a statement that he saw the cyclist and the car driver turn into the road going fast and then he saw cyclist on the ground but didn’t know if he was knocked off or not. The woman was reported as being rude, in a hurry, would not leave her details and drove off. She was also parked on the wrong side of the road as she had cut the corner.
Mr S’s solicitor compiled the statement sent it out to the second who then signed and returned the same. The statement was then sent to the defendant insurers attached to a letter that said the statement confirmed the position of Mr S’s bike at the time of the accident and that their insured turned fast into the junction. this caused Mr S to take immediate evasive action. The insurers were asked to now admit liability or they will recommend to Mr S that Court proceedings should be commenced.
The insurers responded by letter that liability was still denied and that they have now instructed their own solicitors to deal with the claim.
Mr S’s solicitor considered the claim and decided there was reason enough for them to justify continuing with the claim and obtaining a medical report setting out the extent of Mr S’s injuries and thereafter, they can consider issuing Court proceedings on his behalf against the car driver. As Mr S had taken out an insurance policy, he would be protected against the risk of having to meet the other driver’s legal fees in the event that the claim is unsuccessful, as long as he continued to co-operate and accept his solicitors advice.
Mr S was asked if he could confirm that he would like to proceed; potentially he may be required to attend Court to give evidence as to how the accident occurred and he will need to be prepared for this if they press ahead.
Mr S agreed and his solicitor wrote to the insurers saying that they were now going to obtain medical evidence so Court proceedings can be commenced.
Once Mr S had attended the medical appointment and had been examined and questioned by the medical expert the report was formulated and sent to Hayward Baker. Upon receipt of the report Hayward baker read the report and sent a copy of it to Mr S along with a letter saying that the injuries were as a result of the accident and that some minor injuries resolved after a week but his knee was still causing problems now but should heal within the next 3-4 months.
If Mr S approves the report his solicitor will release it to the insurers and potentially it will also be forwarded to the Court. The assumption will be that Mr S will indeed recover by around mid December. If he is concerned that this could be too optimistic then his solicitor can consider delaying proceeding with the claim at present and/or could consider obtaining an updated report early next year, if he is still suffering with symptoms at that time. He was asked to let his solicitor know when responding whether he would like to seek to finalise his claim based on the assumption that he will recover later this year or whether he would prefer to delay finalising the claim until early next year, once he is sure whether or not the doctor’s opinion has proved to be correct.
Mr S was advised that once he settles settle the claim, he cannot then request any additional compensation later on, even if symptoms persist or worsen.
Value of the Claim
His solicitor had the opportunity to assess what they consider to be the appropriate level of compensation for pain and suffering, based on the medical report and on the assumption that Mr S will recover within the next 3 months. It was explained that compensation is assessed under two main heads:-
- Pain, Suffering and Loss of Amenity (General Damages)
The court will award compensation to reflect pain, suffering and loss of amenity resulting from the injuries. The award of compensation under this main head is sometimes termed ‘general damages’.
The assessment of compensation by the court will be made, to a large extent, on the medical evidence. That assessment will be based on this individual case, as each claim is unique. Nevertheless, some guidance on the appropriate level of compensation can be obtained from previous cases and that enables an estimate to be made of the likely award if the matter had to be decided by the court.
Valuing a claim is not an exact science. It is not possible to predict what Mr S might be awarded by a particular Judge on a particular day. However, it is possible to make a reasonable assessment of the likely value of his claim.
Having reviewed the medical report, researched previous case law and also looked at the Judicial Studies Board Guidelines which are the official guidelines the courts use to value claims for injury. His solicitor considered that the court would be likely to award damages for pain, suffering and loss of amenity in the region of £3200 to £4500.
- Expenses and Financial Loss (Special Damages)
The court will also assess compensation for quantifiable expenses and losses resulting from the injuries. The award will reflect sums which are reasonably claimed and can be shown to have been caused by the injuries. The compensation awarded under this head is sometimes termed ‘special damages’.
His solicitor enclosed the schedule setting out Mr S’s losses that they had details of to date. If there are any additional expenses that he would like them to include he was to supply them to his solicitor with full details with receipts and supporting vouchers wherever possible. As with the medical report, once he has approved this schedule, there will be no further opportunity to either add to it or amend it.
The schedule of the financial losses totals the sum of £357. If this was put before a judge his solicitor believes that they would recover in the region of £150 to £300 against this schedule.
Offer to Settle
To comply with the “Pre-action Protocol for low value personal injury claims” through which the claim is being made, the Claimant must make an offer of an amount at which they would be prepared to settle their claim.
Taking the above advice on the value of Mr S’s claim into account, they believe that he should make a formal offer to settle in the sum of £5000 on the basis that the insurers will inevitably try and knock them down. If the offer is not accepted by the insurers then his solicitor believes that they should consider accepting any offer above £3400. If they are unable to persuade them to settle for at least this amount then they would need to consider issuing proceedings and letting the judge decide.
If Mr S was happy with the above proposal he was asked to sign and return the enclosed authority to proceed suggested.
- Interim Payments
There were no interim payments.
There were no subrogated claims (eg claims for treatment expenses due to be paid to other parties or claims for wages paid to Mr S during his absence).
Hayward Baker’s fee
Under the terms of his agreement with Hayward Baker, if there is a shortfall between the amount of the total legal costs and the legal costs that they can recover from the Defendants, then Mr S will have to pay these out of his compensation (subject to a maximum deduction of 25% from your compensation).
In addition to this Mr S opted to take out ATE insurance and the premium of £106 will need to be deducted from his compensation, this includes insurance premium tax at 6%.
Mr S agreed that he wanted his solicitor to disclose the medical report and make an offer to the defendant solicitors.
Hayward Baker wrote to the Solicitors and made the offer which was to be accepted within the next 21 days else proceedings will be issued.
The insurers did not respond and proceedings were issued and the process ran for 5 months through the Courts process when the defendant solicitor contacted Hayward Baker to see if they had seen their letter asking Mr S to discontinue.
Mr S was not going to discontinue and Hayward Baker informed the defendant solicitors of this.
Proceedings continued and a Trial date was given so Mr S’s solicitor wrote to him explaining that the date had been set and to keep this date free, his solicitor would contact him nearer the time to explain the full process. The witness was also informed so they could keep the day free to attend.
The next thing that happened was the defendant Solicitors called Mr S’s solicitor at Hayward Baker to try and agree a settlement out of court for £4,148.79. This is not uncommon as agreeing out of Court would reduce court costs.
Mr S was advised of the offer which he was happy to accept. However Hayward Baker asked if they could try to get the defendant solicitors to up their offer to £4,400.00 which he agreed.
The offer was agreed and a consent order was drafted for the defendant insurers to sign stating that they were happy to accept the offer and pay Mr S’s costs and disbursements on a fixed basis. When this was signed it was sent to the Court and proceeding were asked to be stayed.
Mr S finally received his compensation cheque thanks to the expertise and persistence of Hayward Bakers specialist personal injury team.