COVID – 19 UPDATE Following the Prime Minister’s announcement on 23rd March 2020, we remain committed to providing our services. The Courts are increasing the number of telephone hearings and currently, continue to hear and progress our clients’ claims. Measures have been implemented here to safeguard our clients and our staff. We continue to adapt to the developments and we remain dedicated to providing legal advice and assistance without interruption, during this difficult time.
The recently reported case of the cyclist (Robert Hazeldean) facing bankruptcy following a court case involving a collision with a pedestrian, highlights the dangers not only of litigation, but of not having insurance.
Insurance to cover a claim being made by someone else
If we venture outside, we are responsible for our behaviour. If we negligently cause harm or loss to someone else, we could be on the receiving end of a civil claim for compensation, as well as the possibility of police action. For example, there are similar offences under the Road Traffic Act which apply to cyclists as they do to drivers of motor vehicles, such as reckless cycling; careless and inconsiderate cycling; and cycling under the influence of drink or drugs.
In addition, there are likely to be legal costs and expenses to pay. The issue of insurance frequently arises when acting for an injured cyclist. In collisions with motor vehicles, the driver may bring a counterclaim for the damage caused to their vehicle. In a collision with a pedestrian, that person may make a counterclaim if they have been injured.
One routine enquiry is to find out if the cyclist has insurance. Membership of a cycling organisation may provide it. Cycling insurance cover is also available to purchase.
If the cyclist has home insurance, then part of that insurance policy typically (and crucially) provides Public Liability (“PL”) cover. If a cyclist has PL cover, this will usually meet any successful claim (or counterclaim) made against them.
Similarly, if a cyclist is injured in a collision caused by a pedestrian, it is important to find out if the pedestrian has home insurance (and therefore PL cover), as this is likely to be the source of compensation for the injured cyclist if they succeed in their claim. It could be that the pedestrian was actively “at work” at the time, in which case their employer’s liability insurance may become involved. In the absence of any insurance, the person being sued is at risk of having to meet any judgment ultimately made against them from out of their own money, or assets.
A similar issue arises in relation to horse riders, as it is not compulsory (although perhaps advisable) to have a policy insurance in order to ride a horse on the public roads. This is of particular concern to a vulnerable road user such as cyclist, who comes into conflict with a horse on a public road. More often than not, it will be the cyclist who comes off worst in that encounter. If the horse rider/owner is not insured, then it leaves the cyclist having to pursue the horse rider/owner in the hope that they have the financial means to pay compensation for any injury or loss caused, as well as payment towards the legal expenses of bringing the claim.
Insurance to cover legal costs
PL insurance will often provide access to (and funding for) legal representation to defend a claim (including a counterclaim) being brought by someone else.
Home insurance often provides the option for Legal Expenses Insurance, which is intended to provide funding for legal representation so that a person can bring a claim against someone else. Unfortunately, some legal expenses insurers try to restrict a person’s freedom to choose their own legal representative, instead steering them in the direction of “panel solicitors”, who may not have experience of handling cycle accident cases. Our article on Dashboard Cameras and Cycle Lanes provides a good example of this.
Independent Firms of solicitors will normally offer their services upon a Conditional Fee basis, meaning they will not charge a person for the work they do if that person’s claim is not successful. In the event of a successful claim, it is usual to recover a contribution towards the legal expenses from the losing opponent.
Alongside a Conditional Fee arrangement, it is normal for the solicitor to recommend the option to take out a policy of After the Event (“ATE”) insurance. Often, this type of insurance does not become payable until the end of the claim, providing the person wins. If the person loses their claim entirely, some of these policies will waive payment of the premium whilst at the same time paying for that person’s “disbursements” (expenses such as the cost of medical report fees and court issue fees), in addition to meeting any liability to pay the opponent’s legal costs. In that situation the person having brought a claim and lost, potentially walks away without having to pay anything to anyone.
Mr Hazeldean’s unfortunate predicament has seen an increase in interest by people wanting to take out insurance for when they are out cycling. It is possible that many riders will already have that cover under their home insurance, without realising it.
We were instructed by a cyclist involved in an accident, being a head-on collision on a country road in June 2016 in which both people were injured. We sued the opponent who defended and also counter-claimed for his injuries and losses. At Trial, we won 100% and the opponent’s counterclaim was dismissed by the Court. The opponent’s barrister (relying upon a court decision made in another court a few months earlier) then tried to argue that as the opponent had lost his counterclaim, then he should be entitled to the protection afforded by Qualified One-way Costs Shifting (“QOCS”) under the Court Rules*, not only in relation to the counterclaim, but to avoid paying any of our client’s costs at all. He argued that since both main claim and counterclaim all formed part of the same ‘proceedings’ the opposing claims could not be distinguished from each other. This led to the Trial Judge ordering a further hearing to consider this point.
The help of a specialist costs barrister (Mr Kevin Latham) was enlisted and detailed submissions were put to the Court. In October 2018, the Judge ruled that opponent/Counterclaimant only had the protection of QOCS in respect of his counterclaim for damages for personal injury and did not benefit from QOCS in relation to the Claimant’s claim. This made the opponent (or rather his insurers) liable to pay for the costs of our client making a successful claim.
In hindsight, whilst this might appear to be the obvious conclusion, the earlier judgment presented a golden opportunity for the opponent’s insurer to test the water. Had the opponent’s arguments been successful, there could have been significant implications for anyone bringing a claim for injuries against an opponent, whether in a cycle accident, or other type of road traffic accident.
Whilst there has been no appeal against the decision in our case, there is of course the risk that we have not heard the last word on this subject. Our sincere thanks to Mr Latham for his hard work in this case**.
*(CPR Part 44.13) ** Waring -v- McDonnell
One tactic sometimes used by an opponent’s insurer, is to say that a claim is not genuine, or that the person making the claim is being less than truthful.
Presumably they hope that if a thing is said often enough, the court might start to believe it.
Accusing a person of dishonesty, is a very serious allegation. It cannot and must not be taken lightly.
Those found to have been dishonest can face a jail term. Such individuals deserve the consequences of their actions, as does anyone who helps them.
The problem arises when attempts are made to portray a genuine Claimant in a bad light.
At the beginning of a claim it is often difficult to know the full extent of a person’s injuries and how they will be affected. This makes it difficult to accurately place a value on the injuries and losses. Things become clearer as the claim progresses, when medical and other evidence is gathered. Often, it is these initial uncertainties which are sometimes exploited by an unscrupulous opponent, who will dress them up as “inconsistencies” in the Claimant’s evidence in an attempt to cast doubt upon that person’s integrity.
This happened in a recent cycle accident claim. The cyclist was injured when a delivery van owned by a well known high street retailer, veered into his path. He swerved in order to avoid being run over, crashed and was injured. The driver failed to stop although the vehicle was soon traced.
The insinuations started early on in the claim. A lot of effort was spent by the opponent alleging “inconsistencies” in the Claimant’s case, which were not supported by the evidence. Undeterred, the opponent continued to argue these inconsistencies at the Trial, against a resolute Claimant who stood their ground and maintained their position, based on the truth.
Ironically, the opponent’s van driver changed their version of events about the accident circumstances in court and ended up coming across as a less than credible witness.
On hearing the evidence, the Judge did not hesitate to decide in favour of the Claimant.
In our experience, the opponent’s representatives will typically stop just short of accusing a person of dishonesty, but go far enough with their insinuations in the hope of deterring a genuinely injured Claimant from pursuing their claim. Such conduct is underhand and must be tackled head on.
On the other hand, it seems there is little, if any, publicity about such cases where these less than genuine tactics are employed in an attempt to defeat a genuine claim.
This claim was won because it was carefully prepared and because of a genuine resolute Claimant who was determined not to be frustrated in his pursuit of justice by a crafty opponent.
Recent years have seen an increase in the popularity of dashboard cameras. Their footage tends to provide a clear and incontrovertible account of how an accident occurs. Sometimes that is not always to the benefit of the person who owns the camera, as our most recent case study will demonstrate.
In this case our client was cycling to work. She had stopped at traffic lights alongside the opponent’s 4x4 vehicle, equipped with a dash-cam. She was in a cycle lane which continued beyond the traffic lights. The junction was undergoing roadworks and there were cones and barriers narrowing the route across the junction. To make things more difficult, there was a large traffic cone sat in the middle of the narrow cycle lane in front of her. The lights changed and she set off ahead of the opponent, who then chose the narrowest point in the road at to overtake, just as she was moving over to ride around the traffic cone blocking the cycle path. She was struck by the vehicle as it accelerated past her. We know all this because it was clearly recorded on the opponent’s vehicle dash-cam.
At the Trial recently, the Judge was critical of the opponent’s decision to choose that particular moment to overtake our client. Had he chosen to wait for literally a few more seconds, the collision would not have occurred.
Under questioning, the opponent driver claimed that as a cyclist, our client should not have been riding out of the cycle lane, despite the fact there was a large traffic cone blocking her path. The Judge did not find our client to have been to blame in any way for riding out of the designated cycle lane (or using the main part of the road on which to ride) in that situation.
The end result is that the Defendant’s own dash-cam footage recorded both his impatience and also his negligent driving.
As a footnote, the Claimant had a policy of legal expenses insurance cover, yet her insurers (and their panel Firm of solicitors) assessed this case as having poor prospects of success at less than 50%. As such the insurers were unwilling to support the claim. Despite this, we were able to help our client secure a complete success and 100% recovery of damages from the opponent in this case.
This example shows that when selecting a solicitor, it is important to choose one who has an understanding of the difficulties facing those of us who ride on the public roads and who will properly assess the level of risk involved in pursuing an accident claim.