Young East Harling mother wins damages after head-on smash

A young mother from East Harling was awarded five figure damages for injuries she received when her car collided head-on with a van.

In 2006 Claire Seager, 32 at the time and on maternity leave from her job as a pharmaceutical technician, was returning with a friend and her children from visiting Planet Zoom in Dereham. On the Hingham Road near Great Ellingham a Mercedes van which was travelling in the opposite direction crossed the road and collided with her car.

Ms Seager was trapped and unconscious and had to be cut free by the emergency services, then airlifted by the East Anglian Air Ambulance to the Norfolk and Norwich hospital.

She had broken both arms and her right leg and underwent extensive surgery. She also suffered injuries to her back and various lacerations. Ms Seager spent three days in intensive care and remained in hospital for three weeks. When she left hospital she was confined to a wheelchair for six weeks, and had to undergo physiotherapy until the end of 2007.

Ms Seager has no memory of the accident, nor of anything after leaving Dereham before the accident until three days afterwards. Details of the accident were provided by witnesses.

During her time in hospital Ms Seager was separated from her baby daughter, Ella. She found she could not breast-feed Ella without assistance because she could not hold her, owing to her broken arms.

The inability to hold her baby even after discharge from hospital continued to cause Ms Seager great distress.

'I will never get that time back,' she says.

Although her injuries have healed she is left with conspicuous scars both on her arms and her leg. Her movement is still slightly restricted and she is not expected to make any further recovery, though she has been able to adapt. She has developed travel anxiety as a result of the accident.

She decided to seek damages for her injuries from the driver of the Mercedes. She approached Diss-based lawyers and personal injury specialists comercrawley. Director Emma Crawley, who managed her legal case, explains the circumstances of the damages award.

'This has been an enormously traumatic episode in Claire's life,' Emma Crawley explains.

'She had only just given birth to her child, so the horror of the accident had an especially big impact on her. It also interrupted what had been a precious time for her, the first weeks spent with her new child. So it has inevitably been an extremely traumatic period for her.

'Fortunately we were able to negotiate Claire's claim against the other driver's insurers without recourse to a trial.

'In spite of her injuries, in many ways Claire had a lucky escape because those injuries could have been much worse. She was fortunate in having the service of the East Anglian Air Ambulance, who may have made a difference in the long-term outcome by being able to get her to hospital that much quicker and so reduce any potential complications.'

Claire Seager was eager to acknowledge the part played in rescuing her from the accident by the East Anglian Air Ambulance. 'Although I have no memory of the circumstances of the collision or what happened afterwards, I'm aware that the situation was considered serious enough to call out the air ambulance,' she says.

'It's not generally recognized that the air ambulance is not paid for by the NHS and is entirely supported by charitable donations, so I consider myself very fortunate to live in a part of the country which enjoys such a marvellous service.'

20.08.2009

No win, no fee....

It means what is says. If your lawyer represents you under a proper no win no fee agreement (also called a conditonal fee agreement) you should not have to pay your lawyer anything if your claim is unsuccessful.

Why would a lawyer be prepared to do work and risk no getting paid? Well there are a number of reasons:-

(i) The lawyer would want to be satisfied that there was a reasonable prospect of succeeding with your claim and the claim was not fanciful or doomed to failure from the outset.

(ii) The vast majority of injury claims taken on by lawyers are successful – it is reasonably easy to pick a straightforward winning claim, the art of our work is to select the wining cases where the liability issues are not so clear cut.

(iii) Your lawyer will be entitled to recover a "bonus" or success fee (currently paid for by the Defendant insurer). This is meant to compensate the lawyer for running a case where there is a risk of losing and not getting paid. This success fee is capped in the majority of cases such as road traffic accidents (12.5% of basic costs) where the liability issues and risks of litigation are meant to be more straightforward and easier to call or an accident at work (25% of basic costs) where usually the liability issues are not so clear cut.

In other cases, for example slipping and tripping accidents, involving claims against the local highway authority the Claimant’s solicitors can set there own success fee in accordance with the perceived risk of litigation although if the Defendant is required to pay the Claimant’s costs in due course the Defendant is entitled to challenge the level of the success fee.

In the event that a claim ends up at trial (when clearly there is going to be highly contested issues) then the success fee will normally increase to 100% of the Claimant’s basic costs i.e. the lawyer can double their fee if they succeed at a final hearing. This sounds all very well but very few cases end up at trial and if they do then these are claims where there is a major dispute on the issues. Therefore while a Claimant’s lawyer might recover substantial costs if the claim is successful at trial the lawyer will also receive nothing by way of costs if the claim fails, it is therefore usually high risk at this stage.

There is currently a proposal that the Government is looking at introducing that the success fee payable in the event of a successful claim should no longer be paid for by the Defendant insurer but by the Claimant out of damages recovered. The proposal protects the Claimant in terms of the level of the success fee by capping the success fee at a maximum of 25% of the Claimant’s compensation, essentially this would guarantee a Claimant recovered 75% of the damages that were recovered on his behalf. On the basis that the Claimant is not at risk and can bring a claim at the moment without any thought of contributing to the costs of a claim this is probably a reasonable proposal. If this proposal is introduced then it is likely that market forces will drive down the level of success fees and Claimant’s will shop around to obtain the best deal from a Claimant personal injury lawyer.

Insurers are behind clampdown on ‘no win no fee’ services

Ian Comer, director of comercrawley, responds to George Osborne’s proposed restrictions on ‘no win no fee’ services – and to David Cameron’s view that there is a damaging personal injury culture in the UK.

“The government in their wisdom removed legal aid for personal injury work in the mid 90s, allowing solicitors to take these cases on under a ‘no win no fee’ arrangement.

“They effectively wanted to save money and said that members of the public could have access to justice - the right to make a claim - by solicitors taking the risk of litigation, rather than the State.

“In return for taking that risk solicitors were allowed to charge a success fee - a bonus on their basic costs - to compensate them for the risk of losing and not getting paid.

“Initially the success fee was payable by the client out of their damages but this was capped at 25% so the client was always guaranteed 75% of their compensation, which was highly acceptable to everyone. 

“Then, for some bizarre reason, the government decided that the success fee would be paid by the defendant’s insurer. So when the defendant lost, the insurer would pay compensation, legal costs and then the other side’s success fee as well. This didn't go down at all well with the insurers and so they lobbied to get the government to cap success fees in certain types of cases.

“For instance in road traffic accidents - which make up the vast majority of all personal injury cases - the success fee is capped at 12.5%. In work-related accidents the success fee is capped at 25%. The exception is where the claim concludes at trial ( very few do) in which case, if successful, the solicitor can receive a 100% success fee i.e. double their costs.

“Over the past 10 years or so, at comercrawley we have operated all our claims on no win no fee and do not charge clients a penny, win or lose. We fund (to the tune of several hundred thousand pounds) all the ongoing expenses of running clients’ claims including the cost of medical reports, other experts’ fees, police reports, the cost of accessing medical records etc. On one case alone we have over £50,000 outstanding on disbursements we have funded for the client.

“Firms like comercrawley have lifted the burden of funding personal injury litigation off the State and now insurers are saying they don't like it. They say there is a litigation culture but in fact the number of claims made is not increasing.

“David Cameron talks about personal injury lawyers jumping to take on a claim on the slightest pretext – but the whole point about no win no fee is that you don't get paid if you don't win the claim. If you took on any old rubbish you would soon be out of business. Who wants to work on a ‘no win no fee’ basis on something where there is only a slim prospect of success?

“If the current proposal was just that the success fee should once again be paid by the client out of damages - subject to the same safeguards as before - then I don't see too much of a problem.

“In fact, as I am sure that the government is well aware, some personal injury solicitors will cut their own throats by offering to do cases for lower and lower success fees until we get back to where we are – clients not paying anything towards the litigation.

"However, this is just the thin end of the wedge. Over the last seven years personal injury lawyers have seen insurers and the government force through costs changes which have meant that the vast majority of claims are now dealt with on fixed costs - and we have seen a significant reduction on these costs during this period. For example, seven years ago a straightforward road accident claim valued at £5,000 would attract fixed costs of £1,800 - now such a claim would attract costs of just £1,200.

“I am sure that the government and insurers’ game plan is to drive solicitors out of the market for modest value claims. There is already a new electronic portal system which covers road traffic accident claims up to £10k, which has been designed for use by the public - and I am sure this is the forerunner of excluding costs altogether so the public have to pursue their own claims, and we all know what will happen then.

“The insurers will bank on members of the public getting worn down by the process of delay and prevarication and I am sure the vast majority just won't bother if they have to take on the insurers on their own.”

http://www.comercrawley.co.uk/

What happens if the other driver admits to and accident?

comercrawley

the personal injury lawyers

Your questions answered……

Question:  I was injured in a car accident last year.  The other driver admitted that theaccident was his fault and his insurance company have recently made me an offer of settlement.  I have been dealing with the claim on my own and have not consulted asolicitor.  I am still suffering quite badly from the effects of the accident.  I am worried that the offer may not be enough if I continue to have problems in the future.

Answer:   You are right to be concerned about accepting the offer.  Personal injury claims are normally settled on a full and final basis which means that if you were to accept the offer, the likelihood would be that you would be prevented from claiming furthercompensation in the future.

It is therefore important to be satisfied that the amount of any settlement offer is sufficient to cover not only the pain and expense that you have suffered to date but also the ongoing problems and financial losses that you are likely to suffer in the future.

It will not be possible to make a proper assessment of the value of your claim until final medical evidence has been obtained.  This means obtaining a report (sometimes more than one is needed) from an independent medical expert detailing the injuries that you have suffered in the accident and stating what the long term prognosis is.  As well as knowing whether your ongoing symptoms are likely to be permanent, it is also important to know whether your symptoms may get worse.

As well as obtaining final medical evidence, it is also essential to have full details of all the financial losses and expenses suffered as a result of the injuries, both past and future.  This will include loss of earnings, pension loss, medical expenses, care costsand help with other tasks such as DIY.

The best advice is therefore for you to consult a specialist personal injury solicitor who will be able to give you specific advice about your claim and the settlement offer that the insurance company have recently made.  You do not need to be concerned about thepayment of solicitors’ costs as the insurance company will pay your legal costs as well as your 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 alegal 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.

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 assessmentin 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 theinjury 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 compensationbeing 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.

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 beenrepaired.  Photographs and measurements of the pothole are therefore important.

The next stage effectively involves proving that the council were either aware of thehazard 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 previousaccidents 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.