How Legal Reforms Will Affect Motorcyclists Injured on the Road
LONDON, May 23, 2013 /PRNewswire/ --
In a recent article published in Essex Local Biker, Deborah Johnson, partner and head of the Serious and Fatal Incidents team at Fentons, discussed the fatal accident claims procedure following a road crash and highlights some of the implications of the changes which were introduced on 1 April 2013.
"Throughout my career, I have represented many motorcyclists after they have been involved in collisions. Many of these incidents resulted in life-changing injuries and in the most serious cases, riders or their pillion passengers were killed," said Deborah. "This is when it is vital to get specialist lawyers involved."
Deborah said that in many cases, an individual's injuries may be preventing them from working and so they may have no income, therefore they have no means of paying bills or the mortgage or even paying for day-to-day living. They may not be able to look after their children or even themselves and may need to access assistance. They may also need specialist counselling to help them try and come to terms with what has happened.
"These are things we can immediately help injured people and their families address," said Deborah. "But we understand the process of making a claim can be daunting and - in light of the changes to the system as part of recent legal reforms - even a little confusing."
"It is my job, and that of my colleagues, to advise whether on the balance of probabilities there is a civil claim against a third party that is likely to succeed," she said. "It is necessary to establish that someone was to blame for a claim to succeed. It is not uncommon for the finger of blame to be pointed at the motorcyclist. There are often allegations of speed, overtaking in the wrong place and not having regard to other vehicles on the road."
"We have to look at all available evidence and establish how a crash happened. It is helpful if the police have investigated an incident and a full police report is available, which will usually depend on how serious a collision is."
Deborah explained that in some cases it can be necessary to obtain independent reports from specialists such as engineers, reconstruction experts and doctors.
"If liability can be established by proving negligence or blame on the part of someone else, then a claim will succeed and we can gather evidence to be able to assess the right amount of damages," she said. "However it is also important to consider whether any blame can justifiably be laid at the door of the person claiming, as this may significantly reduce the amount of any award of damages that can be recovered."
In the majority of cases where there has been a serious injury, awards can be several thousands of pounds, which mean any deductions at all, even of a small percentage, can make a big difference.
"If liability can be established, it is possible for early interim payments and practical assistance such as care or counselling to be put in place, well before any case reaches a conclusion," she said. "Obviously it is important to seek independent and specialist legal advice as soon as possible. Using the services of a specialist means that you are likely to end up with the right amount of compensation as your claim will not be undervalued. This is especially important where there are needs that will continue into the future."
Deborah said the issue of funding a claim is something that has been greatly affected by the recent changes made by the Government, and one which can lead to confusion.
"If you have the benefit of a 'before the event' insurance policy attached to your bike insurance, your insurer may encourage you to go to one of their panel solicitors," she said. "But you do not have to do so as you are free to choose who will represent you."
"The majority of cases are currently funded on a no win, no fee basis. The client signs a Conditional Fee Agreement, which provides them with peace of mind as it means they will not have to pay anything if they do not win their claim. It is unusual to have to pay any money to a solicitor upfront to pursue a claim for personal injury. An insurance policy is purchased to cover third party costs and the other side's costs in the event the claim is unsuccessful. The claimant's own solicitor will not get paid anything."
"In England and Wales, costs are generally recovered from the losing party at the end of a successful case, together with a success fee and the insurance premium. This means that a client will generally keep 100% of their damages (compensation award). The idea of the success fee is to compensate for those cases that the solicitor takes on that are lost."
Deborah explained that because of the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into effect on 1 April this year, the money that can be recovered for an injury itself - referred to as the 'pain, suffering and loss of amenity' element - will increase by 10%. "But whilst this sounds good in principle, in reality this is often a small part of any claim, which is usually made up of large sums for things that will be needed in the future," she said.
"In addition, whilst it will still be possible for legal costs to be recovered from the Defendant when a case succeeds, if a Conditional Fee Agreement is in place, both the success fee and the insurance premium will need to be paid out of the damages awarded, meaning the reality is that a claimant will recover less in damages at the end of the case."
As of July 2013, fixed costs will apply to all road collisions with damages of up to £25,000. This will mean that a lawyer is only able to recover a certain amount of money for dealing with a case and this is likely to limit the amount of work that they are able to undertake to bring it to a conclusion.
"Also looming on the horizon is the very real possibility that the small claims limit, currently set at £1,000 for claims involving personal injury, will increase to £5,000," she said. "If this happens, many innocent victims will no longer be able to recover their legal fees and will either have to pay a lawyer themselves out of their damages or negotiate a settlement with the insurance company directly. We know from research and experience that historically, lower awards have been received when a lawyer is not involved."
Deborah said that the reality was that, unfortunately, injured and bereaved people are likely to be detrimentally affected by these changes.
"It is the intention of the compassionate and empathetic lawyers working in this field, who understand how crucial a role they play, that their professionalism and standards of client care will not be compromised and that claimants will not suffer as a result of them, however difficult that will be," she said.
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