car accidents

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I was recently injured in a car accident.  A friend of mine, who had just passed his driving test, took a group of us out for a ride in his car.  The accident happened when we were travelling along a country lane when a pheasant ran out across the road.  My mate swerved to avoid hitting the pheasant and the car ended up in a ditch.  Would I be able to claim compensation for my injuries?

Answer:  To successfully pursue a claim for compensation, it needs to be proven that the accident was caused as a result of the negligence of someone else.

Primarily, the accident was caused by the pheasant running out into the path of the car that you were travelling in.  As the pheasant is a wild animal, there is no one available to sue.  This may sound obvious however if the animal is owned by someone there may be an option of suing that person for failing to ensure that it did not escape on to the road.

The accident was also caused by your friend’s actions in swerving to avoid hitting the pheasant.  Your friend probably did so instinctively and although his actions may be regarded as a normal reaction (particularly taking into account his inexperience in driving) they may be sufficient to prove negligence.

The driver of a car owes a duty of care to his or her passengers to take all reasonable care such as to prevent the risk of foreseeable injury.  This duty of care extends to other road users, although not to an animal such as a pheasant.  In causing his vehicle to leave the road and end up in a ditch, it can be argued that your friend acted negligently.

This is not to say that drivers should avoid taking evasive action in such situations (in some circumstances there may be consequences in criminal law for injuring an animal on the road) however the driver must ensure that any action does not put other people in danger.

You may naturally be reluctant to make a claim against your friend and therefore it is worthwhile mentioning that the claim is likely to be dealt with under the insurance policy for the vehicle.  Your friend may already be claiming against his insurance policy, for the damage to the vehicle, if he is comprehensively insured.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Aggressive Dogs...

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I was recently bitten by an aggressive dog whilst out walking in a local park.  Can I claim compensation for my injuries?

Answer:   You may be able to pursue a claim for compensation against the owner of the dog that attacked you.  For that reason, it will be important for you to have obtained the name and address of the dog’s owner (or at least to have some way of finding this out).

For a compensation claim to succeed in such circumstances it is usually necessary to show a pattern of previous aggressive behaviour of the dog.  A successful claim for compensation can be made under the Animals Act 1971 if it can be shown that the dog had abnormal characteristics and that those characteristics were known to the dog’s keeper.  It must also be shown that such characteristics led to the injury occurring.  It is not necessary to show that the dog had in fact previously bitten someone, nor that the owner could have foreseen that the dog would attack you.

In certain circumstances a claim can also be brought under the law of negligence.  Most claims arising from dog bites are however brought under the Animals Act.

If the dog is of a certain type, it may not be necessary to prove that he or she has been aggressive in the past in order to succeed with a claim for compensation.  Under the Dangerous Dogs Act 1991, certain types of dog are regarded as dangerous.  For example, pit bull terriers are subject to special rules including that they must be kept on a lead when in a public place.

Generally speaking if the dog is not of a dangerous type and has been previously well behaved, then it will be difficult to succeed with a claim for compensation.

Finally, most people have household insurance which covers them for public liability claims.  The likelihood is therefore that the dog owner will be insured in respect of your compensation claim.  This is something that can be established early on when pursuing a claim.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Exposed To Asbestos...

Asbestos victims are set to lose out significantly following a decision of the House of Lords.  In a ruling given last year, the House of Lords upheld three test appeals in which it was argued that damages should be limited in cases involving several former employers, none of whom could be specifically blamed for the onset of the asbestos related disease, mesothelioma.

Previously, the House of Lords ruled that an employer who had negligently exposed a worker to asbestos could be held 100% liable, even if the employee had worked for several companies and it could not be proved which of them had caused the illness.  The Law Lords have now ruled however that that an employer’s liability should be limited on a percentage basis to reflect the extent to which it contributed to an employee’s exposure to asbestos. 

This important change in the law has far reaching implications.  Mesothelioma currently kills around 2,000 people annually in the UK, with the numbers rising each year (and expected to peak sometime between 2011 and 2015).

Mesothelioma is a form of cancer that attacks the lining of the lungs.  The only known cause of the disease is exposure to asbestos and it can be caused by a single asbestos fibre.  In most cases it is caused by negligent exposure to asbestos dust at work.  Many sufferers have had contact with asbestos in more than one job.

There is a delay between the harmful exposure to asbestos and the development of mesothelioma.  This delay can be 15 years or more.  Because of this, employers have often gone out of business by the time that a compensation claim is pursued.  There are often huge difficulties in tracing the insurers for such companies. 

As the House of Lords represents the highest appeal court in England and Wales, the decision cannot be appealed.  Trade unions and asbestos victim support groups are however campaigning for parliament to introduce legislation to address the problem.

Judith Cole, comercrawley solicitors, Chancery House, Victoria Road, Diss IP22 4HZ Tel: 01379 644311

My wife had an accident...

comercrawley

the personal injury lawyers

Your questions answered……

Question:  My wife had an accident last year and is making a claim for compensation.  She broke her right arm in the accident and as she is right handed there were lots of things that she found it difficult to do, particularly when her arm was in plaster.  I took time off work to look after her and wondered if it was possible to make a claim for this.  Please advise me.

Answer:   Yes, it is possible to include in your wife’s claim for compensation a claim in relation to the time that you spent looking after her.  The claim would be for the help that you provided to your wife with tasks that she would normally do for herself but which she was unable to do following the accident because of her incapacity from the injuries.  This would include help with getting washed and dressed, domestic tasks (for example, help with making meals and drinks) and gardening.

If you suffered a loss of pay by taking time off work you can make a claim for that loss.  This can be calculated either through your payslips or by a letter from your employer (I have assumed that you are employed; if you are self employed, the calculation would be different). 

You can however make a claim for compensation] even if you have not suffered a loss of earnings.  The claim is termed voluntary care and assistance and will be calculated based on the number of hours that you spent in looking after your wife.  The claim is based on an hourly rate that is equivalent to employing a paid carer but is reduced slightly to take into account the fact that the assistance was provided on a voluntary basis.

A claim can be made for both loss of earnings and voluntary care and assistance.  This applies where the relative is able to return to work but the person who has been injured  continues to need help with some tasks (such as domestic chores and gardening).  It is obviously important however to make sure that there is no duplication in the claim being made.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Claiming against your partner?

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I have been injured in a car accident caused by my husband – can I claim compensation?

Answer:   Yes, a compensation claim can be pursued by, say, an injured passenger in a car even if the accident is the fault of the driver and s/he is a relative.  The other common example is a claim brought by an injured pillion passenger on a motorcycle.

A claim can still be brought even if the injured passenger is also covered by the motor insurance policy.  This would occur where, say, a husband and wife are both insured to driver a vehicle; if the husband is driving and causes an accident that injures his wife who is a passenger in the car, the wife can pursue a claim against her husband which the motor insurance company with deal with.

Therefore, the fact that you are related to or living with the person responsible for the accident does not prevent you from pursuing a claim for compensation against them.  Provided that person is insured to driver the car then the insurers will be responsible for the claim.  If the case when to court, legal proceedings would need to be issued against your partner.  However, the insurance company would be responsible for paying whatever compensation was agreed or awarded.  It is worthwhile mentioning however that the vast majority of personal injury claims settle without the need to start court proceedings.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Bouncy Castles....

With the nice weather having finally arrived (at the time of writing this article at least!), it seems topical to talk about accidents involving bouncy castles.

Bouncy castles are extremely popular and offer tremendous fun for children.  Accidents are not uncommon and sometimes may result in a child being seriously injured.  This is not intended to put people off the use of bouncy castles but instead to highlight the importance of ensuring that they are used safely.

Companies which supply bouncy castles provide a list of guidelines for the safe use of the equipment.  Of great importance, is making sure that the bouncy castle is constantly supervised by an adult.  Accidents often occur when children are allowed to climb up the sides of the equipment, when they may then either fall over the top on to the ground or fall or jump back in and land on another child.  Injuries can also often result from boisterous behaviour, if either too many children are allowed on it at one time or there is a big gap in age.

Sometimes during an event, there will be a time when the bouncy castle is not in use.  Even then, it is still important to make sure that it is supervised or deflated, which is quick and easy to do.

Where a public event is being organised, such as a village fete, it is good practice to carry out a written risk assessment in advance.  If an injury occurs as a result of the unsafe operation of the bouncy castle, then a successful claim for compensation may be brought in negligence.

The advice is to make sure that the company supplying the bouncy castle has public liability insurance cover.  This however will only cover the supplier’s liability for the accident such as injuries caused by the equipment failing or being set up incorrectly or unsafely.  Suppliers will always tend to make it clear that the hirer is responsible for ensuring that the bouncy castle is supervised at all times and that the Conditions of Hire are followed.  It is therefore important to make sure that you have your own public liability insurance cover for the hiring of a bouncy castle.  This is often covered by a home insurance policy and therefore may not involve taking out additional insurance.

Finally, it is not sufficient to put up a sign seeking to avoid liability for any accident as (under the Unfair Contract Terms Act) you cannot disclaim liability for death or personal injury.

Judith Cole, comercrawley solicitors, Chancery House, Victoria Road, Diss IP22 4HZ Tel: 01379 644311

Protecting yourself....

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I am helping to organise a fete for my son’s playgroup and we are looking to hire a bouncy castle.  Is there anything that we should do to protect ourselves from someone claiming compensation should a child get hurt whilst playing on it?

Answer:   The person or company that you hire the bouncy castle from should provide guidance and instructions on how to use the inflatable safely.  It is obviously important that these instructions are followed.  Sometimes the bouncy castle hirer is able to provide a notice to display setting out rules to ensure its safe use (such as no eating or drinking and not wearing jewellery etc).

It is important that the bouncy castle is supervised throughout the fete to make sure that these rules are followed (either one person can do this or a rota can be drawn up).  It is often advisable to limit the number of children using the bouncy castle at any one time and to also make sure that the age groups of the children using it at any one time do not differ significantly (for example toddlers using it at the same time as teenagers).  Children should be stopped from doing anything dangerous, such as climbing up the sides of the bouncy castle.

It is also advisable for a risk assessment to be carried out in relation to the use of the bouncy castle (and indeed the fete generally).  By undergoing this process, it will help the organisers of the fete indentify the relevant risks and look at ways of minimising them.

It is also important to make sure that the person or company that you hire the bouncy castle from has public liability insurance cover.  The playgroup should also ensure that its public liability insurance cover not only covers the fete but also the hire of the bouncy castle.  This will mean that should a child be injured and a compensation claim made, the claim can be forwarded on to the relevant insurance company for them to deal with as is appropriate.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

eye injury...

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I suffered an injury to my eye in an accident at work.  I was operating a piece of equipment, a circular saw, and a splinter of wood flew into my eye.  The accident happened at my last job and at the time I was reluctant to make a claim against my employer.  Unfortunately, I did not enter details in the accident report book.  Can I still make a claim?

Answer:   The description that you have given of the accident suggests that you were not wearing eye protectors, such as goggles, when the injury occurred.  Under the Personal Protective Equipment Regulations 1992, an employer is under a duty to ensure that suitable personal protective equipment is provided to employees who may be exposed to a risk to their health and safety while at work.  Therefore, if your employer failed to provide you with eye protectors, you would be able to pursue a claim under the Regulations for the injury and financial loss that you suffered as a result of the accident.

The fact that you did not enter details of your accident in the accident report book will not prevent you from claiming compensation.  It is always best for an accurate record to be made of an accident as soon as possible after it occurs as this helps in proving the accident and injury.  In your case however there will still be many other ways of proving your claim including your own evidence, the evidence of any work colleagues who witnessed your accident and your medical records.  It is also anticipated that your previous employer will recall your accident and will be able to confirm the circumstances to their employers liability insurers who will deal with your claim.  Additionally, your employer should have sent a written report of your accident to the Health and Safety Executive. 

Finally, there is a general time limit of three years that applies to personal injury claims such as yours.  Therefore, provided that your accident occurred less than three years ago, you will still be within time to pursue a claim for compensation.  Please be aware however that the time limit specifies that court proceedings must be commenced within three years of the date of the accident.  It is not sufficient to merely notify your previous employer of your claim within that time.  If your claim is not issued at court within the three year time limit, you are likely to be barred from claiming compensation.  A solicitor will be able to advise and assist you further with this.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Hitting a pothole...

comercrawley

the personal injury lawyers

Your questions answered ……

Question:  I recently had an accident and was injured when I came off my motorbike after it hit a pothole on the road. Can you please advise me about making a claim for compensation.

Answer:  The starting point in terms of advising you is to establish whether the pothole was on land which is publicly or privately owned (or, more specifically, maintained). 

Most pothole claims arise from accidents that occur on public roads and in such cases the claim is normally made to the local authority who are responsible for maintaining the road at public expense. 

The first thing that will need to be proven is that the size of the pothole (and most importantly its depth) was such that it constituted a hazard that should have been repaired.  Photographs and measurements of the pothole are therefore important.

The next stage effectively involves proving that the council were either aware of the hazard or should have been aware of the hazard through their system of carrying out regular inspections of the highway.  Thereafter the council should act within a reasonable timescale in terms of arranging for the repairs to the highway to be carried out.  Councils keep records relating to the inspection and maintenance of the highway as well as records of complaints about the condition of the highway.

Every case however is decided on its own individual facts and other relevant considerations include where the pothole was and whether there had been any previous accidents or complaints.

If however the accident occurred on private land, then the claim will instead be made to the individual or organisation who owns or is responsible for maintaining the land.  The law is different to highway claims but, in general terms, such claims can often be easier to prove as a private landowner would be expected to inspect the area more often and can also act sooner in terms of arranging for a pothole to be repaired (or sectioned off) once it has started to form.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss Norfolk, IP22 4HZ.

Injured Back??

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I recently injured my back as a result of lifting something heavy at work.  Please can you advise me about pursuing a claim for compensation?

Answer:  To successfully pursue a claim for compensation you will need to prove that your back injury was caused by your employer’s negligence or breach of statutory duty.

The Manual Handling Operations Regulations 1992 place a number of duties upon an employer.  The primary duty is for employers, so far as is reasonably practicable, to avoid the need for employees to undertake any manual handling operations (which is defined as any transporting or supporting of a load by hand or by bodily force).  Where this can’t be avoided, the employer is then under a duty to carry out a risk assessment in respect of that task and to take appropriate steps to reduce the risk of injury.  The employer must also provide the employee with certain information concerning the task and to provide appropriate training.  Where there is a breach of the Regulations which causes an injury, this gives rise to a civil claim for compensation.

There is also potential liability under the common law duty of care which employers owe to their employees in negligence which includes a duty to provide safe equipment and a safe system of work.

The issues will therefore be firstly whether your employer should have provided equipment to prevent you from having to lift the item by hand.  Thereafter, it will be a question of investigating whether your employer carried out a sufficient risk assessment in respect of the task and provided you with sufficient information and training.  The relevant factors will include the size and weight of the load, your gender, height and general build, and how the item needed to be lifted.  

It will be necessary to obtain medical evidence to prove that your back injury has been caused by lifting the item.  This will involve seeing a medical expert (often a Consultant Orthopaedic Surgeon).  The expert will consider, amongst other things, the nature of the injury and whether there is anything in your past or present medical history which may be relevant to the injury (this is often the case with back injuries as people sometimes have a pre-existing condition).  Where this is the case, it will tend to not prevent compensation being claimed but instead may limit the value of the injury claim.

Finally, it is worthwhile mentioning that your employer is likely to be insured in respect of any claim that you pursue, through their employer’s liability insurance policy. 

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Claiming on benefits...

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I have had an accident and am considering making a claim for compensation.  I am concerned however that if I receive compensation it may mean that my benefits get stopped.  Could this happen?

Answer:   There is a risk that this could happen but there is a way that it can be avoided.

The risk only applies to state benefits that are means tested, examples of which are Income Support, Housing Benefit and Council Tax Benefit.  Certain benefits are non means tested (such as Incapacity Benefit, Disability Living Allowance and Child Benefit) and there is no risk of these being affected by the mere fact of receiving compensation.

For means tested benefits, there are financial eligibility limits including those relating to capital.  What needs to be considered is whether, by receiving the compensation payment, it may take you above a limit that will mean that either your benefit is reduced or stopped altogether.  This will depend on a number of factors including how much compensation you will be receiving, what other capital you have and what the financial limits are for that particular state benefit.  Any capital that your partner has may also be taken into account.

It is possible however to prevent benefits from being affected by setting up a Personal Injury Trust and paying the compensation directly into an account specifically set up for the trust.  The Benefits Agency must still be informed of the change in your circumstances but upon being advised that the compensation has been paid into a Personal Injury Trust, should disregard that capital in their assessment of your means so far as your benefit entitlement is concerned.

Your solicitor will be able to advise you as to whether a Personal Injury Trust is advisable in your case and, if so, to explain what is involved in setting up a Trust and how to go about doing this.

The fact that it is possible to protect your entitlement to benefits means that the fact that someone may be in receipt of a means tested state benefit should not deter them from pursuing a claim for compensation.     

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.

Could you claim??

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I was recently injured whilst travelling on a bus.  I gather that the bus driver turned a corner too quickly with the result that I was thrown from my seat and injured my shoulder.  Can I claim compensation?

Answer:  Yes, a compensation claim can be pursued if it can be proved that the reason for you being injured was due to the negligence of the bus driver.  A bus driver owes a legal duty of care to passengers on the bus to ensure that they a not exposed to a foreseeable risk of injury.  It can be argued that by failing to drive at the appropriate speed and to turn the steering wheel appropriately, the bus driver caused for passengers on the bus to be at risk of suffering an injury.  The risk of injury can be said to be foreseeable particularly taking into account the fact that passengers will not be wearing a seat belt.

The bus company will be legally liable for the bus driver’s negligence as he or she was acting within the course of his or her employment.  The claim will normally be covered by the bus company’s motor insurance policy.

You can claim compensation in the normal way, both for your shoulder injury and for any financial losses and expenses that you have suffered as a result.

If you have a question for our legal advice team you can submit it by email: enquiries@comercrawley.co.uk or in writing to:  Chancery House, Victoria Road, Diss, Norfolk IP22 4HZ.