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Simplified Road Traffic Accident Claims

The Department of Transport statistics for road traffic accidents show that 302,605 people within Great Britain were killed or seriously injured as a result of a road traffic accident during 2002. A new process for handling personal injury claims as a result of road traffic accidents came into force on 30 April 2010 and is aimed at streamlining the process for smaller claims which is good news for everyone.

Amie Prowle of Barcan Woodward’s Personal Injury team explains why the new process has been brought in, how it works and more importantly how it will enable the firm to obtain compensation for clients more quickly and simply.

The objective of the revised process, developed by Ministry of Justice having taken consultation from stakeholders across the industry, is to provide fair compensation as quickly as possible at reasonable cost. It includes fixed stages with associated fixed costs, and set deadlines for solicitors representing both claimants and defendants.

The new process will apply to all personal injury claims resulting from a road traffic accidents valued between £1,000 and £10,000 which historically have made up the majority of cases.

The new process is split into three stages with each stage of the process having fixed costs and deadlines depending on the circumstances of the claim. The overall process is aided by the development of an online secure portal which will allow the various solicitors to share information more efficiently.

Full information on the costs and deadlines can be obtained from the online portal at RTA personal injury claims, however, the key points are summarised below;

Stage 1 - Providing early notification of claims to defendants and insurers

  • Claim forms and acknowledgment of receipt will be sent between the insurer and the claimants solicitors electronically;
  • On receipt of a correctly completed Claim form the defendant's insurer will have 15 business days in which to respond (except Motor Insurers' Bureau which has 30 days).
  • Fixed recoverable costs of £400 will be paid at the end of this stage where liability is admitted. A 12.5% success fee will be applied to Stage 1 fixed recoverable costs (if a conditional fee agreement is in place).

Stage 2 - Medical evidence, offers to settle and negotiation

  • On admission of liability the claimant solicitor will obtain medical reports. There is no fixed timeframe for obtaining medical reports and this will depend largely on the speed of recovery of the client so that meaningful medical evidence can be obtained.
  • When the reports have been confirmed as factually accurate the claimant solicitor completes the "Stage 2 settlement pack" and forwards it to the insurer with supporting information.
  • The defendant’s insurer then has a further 15 business days to accept the claimant's offer or make a counter offer. Where a counter offer is made a further 20 business days are allowed for negotiation between the parties.
  • Where agreement is not reached at the end of this period the claimant’s solicitor prepares the "Stage 3 settlement pack" and the process moves on to Stage 3.
  • Fixed recoverable costs of £800 apply to all claims under the process to the end of Stage 2. A 12.5% success fee can be applied to all cases that settle (subject to a conditional fee agreement being in place).

Stage 3 - Where no agreement can be reached

  • Where no agreement is reached by the end of Stage 2 an application will be made to the court to determine quantum.
  • There will be separate fixed recoverable costs for the claimant solicitors for Stage 3 of the process as well as a fixed success fee of 100% (subject to conditional fee agreement). The success fee is only applicable if the claim concludes at trial and the claimant wins.
  • Where settlement is reached prior to commencement of the trial, fixed recoverable costs of £250 will apply along with a fixed success fee of 12.5% (subject to conditional fee agreement). The agreed damages and fixed costs are payable within 10 days of a settlement being reached.

Barcan Woodward solicitors have a specialist personal injury team which can help you maximise the value of your personal injury claim whether through this new streamlined process for road traffic accidents or alternative processes for non traffic related or more complex cases.

If you want to find out more about the new process or how Barcan Woodward can help with your claim please see the Personal Injury section of our website or contact us on 0117 925 8080.

Barcan Woodward Partner cycles to Paris for Action Medical Research

At the end of July Richard Barcan, one of the founding partners of Barcan Woodward and a clinical negligence specialist based at the firm's new King Street office, took on his latest long distance cycling challenge. Richard and his wife Helen joined a group of 600 cyclists tackling a route of over 300 miles in 3½ days between London and Paris.

They rode through Kent to Dover and then, once over the Channel, through the rolling countryside of Normandy from Dieppe, through Lisieux, Vernon and then into Paris where the ride finished under the Eiffel Tower.

Action 100

Richard, a keen cyclist who has travelled extensively through Europe and the USA as well as the Middle East, Africa and even the Himalaya mountains in Nepal said:

“I confess that I do rather like a little spin on the bike and I really enjoyed this ride! While not quite as demanding as some of the climbs I have done in the Alps, Pyrenees or the Rocky Mountains, the distances we covered riding to Paris were not for the faint hearted. Each of the first 2 days were over 90 miles long and the weather was more British than French. The first day was not helped by my wife having a puncture on the start line and we then managed to get lost in deepest Croydon...”

“It is particularly pleasing to be able to help Action Medical Research, one of the main charities that the firm supports. For the last 2 years we have sponsored their Action 100 ride from Bristol to London. When I rode that for the first time last year as part of a team from Barcan Woodward I got to know the charity and their work. I have been extremely impressed with what they have achieved in the field of medical research and to see the huge difference they have made improving the quality of life for so many people. That is exactly what the Personal and Medical Injury Team are trying to do at Barcan Woodward for ordinary people who have had their lives devastated by accidents or medical errors. I particularly support the charity's emphasis on childhood conditions as a lot of my clients are children with brain injuries or other very serious medical problems.”

“I am very pleased to be able to help this very worthy cause. Although Helen and I provided all the sponsorship money needed to participate in the ride ourselves, if other people would like to help the work that Action Medical Research do by sponsoring us that would be fantastic. Ultimately we all benefit in the long run in the constant battle to fight disease and infirmity.”

To sponsor Richard and Helen you can simply send a cheque payable to Action Medical Research to:

Action Medical Research Bike Ride
c/o Barcan Woodward
6 King Street
Bristol
BS1 4 EQ

Or why not join the Barcan Woodward team on the Action 100 ride to London on 30th August 2009? Full details at http://www.action.org.uk/get_involved/action_100_2009_bristol_bath_to_london

Media access to family courts

Family disputes have always taken place away from the glare of the public in private court hearings in order to protect the confidentiality of the parties involved and, more importantly, the children.

However recently there has been some criticism of the fact that that these hearings take place in private, and there has been a call to make the family justice system more open and accountable, while still protecting the names and identities of those, particularly children, involved.

As from 27th April 2009, for the first time, accredited media representatives will be allowed access to courts dealing with family cases, ranging from private family disputes between divorcing couples or parents of children, to cases brought by the local authority to place children in care, or adoption.

The media will still not be allowed to report on the details of any case without express permission of the court, and that is unlikely to be allowed in the majority of cases. In some high profile or important cases to date, Judges have made their Judgements public, sometimes in an anonymised format, and that will continue, at the discretion of the Judge in each particular case. We are unlikely to see routine reporting of family cases in the press, as we do for criminal cases, for the time being, although the Justice Secretary Jack Straw has indicated that he intends to introduce legislation to lift reporting  restrictions in family cases in the future.

Any clients who are involved in family disputes should therefore be aware that there is a possibility that, if their case goes to court, the media may be able to see details of the case, although they will not be able to report details in the press without the court’s consent, which is unlikely to be granted at this stage in routine cases.

Clients should also be reassured that they are able to object to the media presence in their case if, for example, there may be particularly sensitive issues in the case, or if they might feel intimidated from giving evidence properly, and in these cases the court will decide whether to allow or exclude the media presence.

This “opening up” of the family courts is perhaps one more reason for clients who are contemplating pursuing a family dispute to consider the range of other methods available to resolve such a  dispute before rushing off to court and exposing their family to the none too tender mercies of the British press!

At Barcan Woodward we encourage and help our clients where possible to use Alternative Dispute Resolution methods such as negotiation, mediation, or Collaborative Law to resolve their disputes, and are successful in resolving most disputes this way.

If you are at all unsure about the procedure or how this may affect you, please ask one of our team, who will be glad to advise you.

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NHS drops appeal against brain damage payout

11 June 2008

"The family of a boy brain damaged after being starved of oxygen at birth have welcomed a decision by the NHS to drop its appeal against a decision to award him £4.7 million compensation.

The seven-year-old from Bristol, who can only be identified as ‘RH‘ for legal reasons, developed cerebral palsy after he was starved of oxygen during his birth at St Michael‘s hospital. He sued United Bristol Healthcare NHS Trust for compensation for medical negligence.

The case made legal history because the judge, using new powers available to the courts, ruled that part of his money should be paid in a lump sum and the rest by annual payments for the rest of his life.

Earlier this year the Court of Appeal upheld a ruling to protect future payments from inflation by linking them to increases in wages rather than the Retail Prices Index.

The trust and its lawyers, the NHS Litigation Authority appealed to the House of Lords following the Court of Appeal ruling in January this year. But that appeal has been withdrawn..."

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Cycle helmets – what the law says

Cyclists across England and Wales have been thrown into confusion as to whether helmets must now be worn by all as a result of a High Court ruling in January 2009.

Robert Smith suffered serious head injuries as a result of a collision with a motorcycle while riding his bike. He claimed substantial damages for his injuries and losses.  One of the arguments raised by the motorcyclist’s insurers was that his injuries were wholly or partly due to the fact that he had not been wearing a helmet. They argued this was “contributory negligence” on his part and that his damages should be reduced for this. They relied on the Highway Code which says that a cyclist "should wear a cycling helmet which conforms to current Regulations" and said that not wearing one was in law the same as to a motorist not wearing a seatbelt. It has been the case for some time that, if a driver or passenger in a car doesn’t wear the seatbelt and it can be shown that their injuries would have been avoided or less serious if the belt had been worn, their damages should be reduced.

Although Mr Smith was able to prove that on the facts of his particular case, wearing a helmet would have made no difference to his injuries so there was no reduction made for any “contributory negligence” against him, the Judge, Mr Justice Griffith Williams did say in his ruling:

"it must follow that a cyclist of ordinary prudence would wear [a helmet]... I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries.."

This court Judgment, coming from a High Court Judge, can now be relied upon by insurance companies in most cycling injury claims as it is binding authority in the County Courts where most cases are heard. It may also persuade other High Court Judges to reach the same conclusion in the larger value cases they hear.

However, it does not mean that it is against the law not to wear a helmet – just that cyclists run the risk of getting lower compensation if they suffer injuries proved to be as a result of not wearing one.

The whole issue of helmet wearing remains controversial and the specialist cycling lawyers at Barcan Woodward regret the fact that the Judge in Mr Smith’s case made the wide ranging comments that he did without hearing all the scientific argument for and against helmet wearing.

This case is bound to fuel the arguments on both sides. Many cyclists always wear a helmet as a matter of personal choice but many others prefer not to or make a decision depending on the circumstances. There are arguments both ways. 

Cycling is one of the best ways to lose weight and keep fit possible so the more people who ride the healthier the nation will be. There is an expert view that if helmets were made compulsory, many people would be put off from getting into riding altogether and the cost to the country in terms of healthcare, pollution and in many other ways would be enormous.

We are sure that sooner or later the Court of Appeal will consider the issue of “contributory negligence” for not wearing a helmet. In the meantime, at an individual level, Barcan Woodward’s advice is that if your head is unprotected and you are unlucky enough to suffer a head injury while riding, you could find your compensation reduced.

Click the following for more advice: Claiming for Head Injuries

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Are you covered? Before the Event Legal Expenses Insurance

Tucked away in a drawer somewhere you may have the insurance equivalent of an inflatable life jacket.  It is the sort of insurance you would like to think you are never going to need but if you have it in times of a legal crisis, it could keep you afloat in the white waters of litigation.

Legal Expenses Insurance is often part of the Home Insurance Policy (either included in the premium or paid for as an added extra).  Legal Expenses Insurance (LEI) will allow you to obtain formal legal advice and, if necessary, start Court action.  Typically you will find cover for personal injury/clinical negligence and employment related matters but other areas may be specifically excluded (such as neighbourhood disputes and family law).  Insurance premiums can vary widely in their terms but generally most policies allow you to spend between £25,000 to £50,000 on any one legal action.

Paying for Court proceedings can be costly, particularly if you consider the cost of taking the case to trial.  The Legal Expenses life jacket will ensure that the burden of paying the fees for Barristers, medical experts and Court fees will not weigh you down.

The quality of insurance varies widely as does the service you may receive from Insurance Companies.

We have found that some policies far from being the life jacket of the insurance world end up being a lead weight.

For example, in personal injury and clinical negligence matters specifically, our clients have encountered the following problems:

  • One Insurance Company claimed that the policyholder had to obtain her own medical report before agreeing to fund the claim.  In clinical negligence cases, getting to that stage of an initial investigation will easily cost over £3,000.  We successfully argued on behalf of our client that this was not a fair interpretation of the insurance clause.  Whilst ultimately a successful outcome for our client, the argument was time consuming and was an additional burden for the person the Insurance Company was supposed to be helping.
  • Another leading Insurance Company within the Legal Expenses Insurance market regularly seeks to exclude claims on the basis that the injury suffered is not a “specific or sudden event”.  This is often argued where there has been a delay in diagnosis of cancer for instance.
  • Many Insurance Companies also try to limit your choice of solicitor to one of their panel solicitors so that they can sell your claim on to them.  They regularly do this even though the Financial Services Ombudsman has decided that in complex and high value claims it is only fitting that an injured person should have the freedom to choose their own solicitor.  We believe that this is particularly important where someone has already explained the very sensitive nature of their injury.
  • The financial limits may not be sufficient to take a case to trial and accordingly the Legal Expenses may require some “top up” cover at an additional cost.

In contrast to these “problem insurance policies” there are several Companies that stand out as offering excellent service and generally allow individuals to have the peace of mind that they probably thought they were buying at the time of taking out their insurance policy.

So, when it comes to renewing your Home Insurance Policy and you are thinking about Legal Expenses Insurance it may be useful to ask these sort of questions:-

  • Will I be able to choose my solicitor or will I be restricted to a panel?
  • What type of claims are excluded?
  • What will I need to do in order to have access to cover (will it be at any cost to myself?).
  • What is the limit of the financial cover?
  • Are there any important terms that restrict my access to justice that I should be made aware of?

Other funding options are available other than Before the Event Legal Expenses Insurance. Please contact a member of Barcan Woodward’s specialist Personal and Medical Injuries Team to discuss further.

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Madonna or McCartney?

Imagine you are going through a divorce or a separation.

You feel like you have lost control of everything that is dear to you, your family, your home, your children, your life…

You need someone to help you see you through the maze, someone to guide you through all the options and possibilities, without losing sight of what is important to you.

The experiences of Madonna and Paul McCartney in the divorce courts were very different. We believe most people would prefer to reach their own agreements out of court as Madonna did rather than have to fight through court for a settlement as Macca did.

We can offer a range of ways of helping separating couples to reach their own agreements without going to court.

All of our lawyers are members of Resolution, a national organisation of family lawyers who aim to resolve family disputes in an amicable way if possible.

We can offer mediation to couples who need some help reaching agreements.

Finally, we can offer Collaborative Law as an alternative to court-based solutions. Collaborative Law is a new way of reaching agreement which focuses on what you want rather than on what the court thinks is right for you.

What is more, we are the only solicitor firm in Bristol who can offer you fixed fees for advice in family law matters.

If you are interested in finding out more about this, give us a ring, and see what we can do for you.

Give Chris Miller a call on 0117 9635237 email him on cmm@barcanwoodward.co.uk

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08/10/08 - Williams V Jervis [2008]EWHC 2346 (QB)

Court awards £511,903 in compensation to Claimant who suffered a mild head injury, in addition to further injuries including a vestibular lesion, as a result of a relatively low speed rear end shunt road traffic accident.   This case was one of the few cases where the controversial area of mild head injury has been tested in the courts.

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Model Periodical Payments Order in Barcan Woodward test case receives Court Approval

31st July 2008   

On 31st July 2008 Judgment was given by Mr Justice Mackay sitting in the High Court in London in a group of appeal cases being coordinated by Barcan Woodward. These cases had been litigated all the way to the House of Lords and their successful conclusion marks a huge victory for justice for all severely injured Claimants.

The outcome we have achieved was the result of close co-operation between several senior barristers, solicitors and highly specialized experts in finance, statistics and labour economics, coordinated at Barcan Woodward by joint senior partner Richard Barcan.

It means that all future Claimants needing to pay for their care will now actually be able to afford it  for the rest of their lives. This is because compensation for their care will now be indexed linked to annual increases in the earnings of carers generally (by reference to the Annual Survey of Hours and Earnings – ASHE 6115) rather the price of goods in the shops (measured by the Retail Prices Index – RPI). In this way their money should never run out which could well have been the case if the payments had been linked to the RPI.

If the Court had decided that the RPI was the correct index to use, it is likely that many Claimants would have rejected the new system of annual “periodical payments” and would have opted instead to take all their compensation as a lump sum. The problem with this traditional approach to compensation is that, because life expectancy is of course always an unknown factor, taking all your compensation in a lump sum and investing it is a huge gamble and in many cases the money will run out leaving the person without funds at the most vulnerable stage of life.

By way of background, in January 2008 the Court of Appeal in what was known as the Thompstone group appeals (Thompstone –v- Tameside Hospital NHS Foundation Trust, Corbett –v- Yorkshire and the Humber Strategic Health Authority and RH –v- University Hospitals Bristol NHS Foundation Trust – the case in which Barcan Woodward acted for the Claimant) provided a resounding endorsement to the use of ASHE SOC 6115 at its relevant centile as the most appropriate measure by which Periodical Payments for future care and case management should be indexed to secure adequate inflation proofing.

However, the NHS Litigation Authority obtained permission to appeal to the House of Lords on certain limited grounds. After considering further the arguments put forward by the Claimants they then abandoned that appeal.

One of the agreed terms of the withdrawal of the appeal to the House of Lords was that the 3 cases be remitted to the High Court to determine the final form of Order that should apply in each case and which would form a model to be used in all future NHS cases.

The 3 remitted cases came before Mackay J (the first instance Judge in RH,) on 30th July 2008 and he handed down two Judgments on 31st July 2008, one specific to the 3 remitted cases and the other dealing with the Model Order which was proposed by the parties after considerable discussion between them and input from Richard Cropper (Independent Financial Advisor), Dr Victoria Wass (Labour Economist) and Prof. Gerald Makepeace (Statistician) instructed on behalf of the Claimants.

In his Judgment, Mackay J endorsed in forceful terms the use of this model in all future Periodical Payment cases against NHS Defendants. He found that the model properly addressed certain potential difficulties with ASHE and in particular the fact that:

  • Each year the Office for National Statistics (ONS)  publish 2 sets of data, a first release hourly rate and subsequently a revised hourly rate
  • The ONS publish dual estimates when an occupation is reclassified or, unless the difference is insignificant, following a change in their methodology resulting   in discontinuity of data.

While making it clear that he did not purport to dictate to his fellow Judges, Mackay J said that he believed that the Model Schedule to the order should be followed in all future NHSLA cases unless there was a good reason not to do so and he sounded a warning that parties could be at risk of adverse costs orders in these circumstances if they sought to devise their own versions.

He also recommended that parties in non NHS personal injury cases give careful thought to adopting those parts of the Model that were not NHS specific and encouraged dialogue between all interested parties.

If you would like to read the model order click here

For more information contact Richard Barcan - rab@barcanwoodward.co.uk  or phone on - 0117 925 8080

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New Fight for Barcan Woodward Client

"…Lawyers for the NHS are fighting a compensation order made on behalf of a Bristol boy who was left severely disabled following errors during his birth.
The seven-year-old boy, who cannot be named for legal reasons, developed cerebral palsy after he was starved of oxygen during labour at St Michael‘s Hospital, and last month his family was granted damages that will work out at around £4.7 million.

Now the law team that acts for health trusts is appealing against the way payments would be made to the family…." (Bristol Evening Post 21st February 2008)

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Barcan Woodward support Action Medical Research Charity

The pioneering research funded by Action Medical Research has resulted in many important breakthroughs, such as the recent development of a new form of treatment for those suffering from epilepsy and a new device to track the heart rate of the unborn child while in the mother‘s womb.

Research carried out in Bristol includes finding answers to osteoporosis, MRSA, hydrocephalus, feeding problems in premature babies and developing a seat for severely disabled children.

Action Medical Research is a national charity, which is dedicated to building a healthier future for everyone. The charity has been supporting and funding medical breakthroughs for more than 50 years and its life-saving work benefits babies, children and adults.

For further details about the Charity or the event please click on the link below:

http://www.action.org.uk/get_involved/action100/action100_news.php

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Bristol boy wins Court of Appeal Damages Test Case - Victory for another Barcan Woodward Client.

Bristol, 17th January 2008:  

A 7yr old Bristol boy with severe cerebral palsy as a result of admitted medical negligence at the time of his birth has today won a landmark test case which will have a dramatic effect on the quality of his life and that of every other critically injured victim of negligence from now on.

The boy (who can not be named for legal reasons) won damages conventionally worth £4.7 million back in February 2007 after United Bristol Healthcare NHS Trust had eventually admitted negligence some time after his mother made a claim on his behalf. However, under new powers given to the Court it was decided that part of his money should be paid in a lump sum and the rest by annual payments for the rest of his life.

The huge advantage of having part of the money by way of “periodical payments” is that there is no risk of it running out if he lives beyond his statistical estimated life expectancy. However, this only applies if the annual payments are properly inflation proofed. At a Trial in the High Court in London last  summer the Judge decided that the proper way to inflation proof the annual  payments was by linking them to the increase in wages, rather than the RPI  (an index of the prices of goods in the shops).

However the Health Trust disagreed and appealed to the Court of Appeal on a  number of grounds saying that the annual payments should be linked to the RPI.

Today the Court of Appeal in London have ruled that the Judge was quite right and that an earnings index should be used.

This ruling has enormous implications. Had it not been made, the probability is that the money would not have been enough to provide the huge amount of care that he is going to need for the rest of his life.  In this particular case it was estimated that over his estimated lifespan, depending on the annual rate of inflation, the money could have fallen short by over £1.2 million. 

The boy‘s family can now be secure in the knowledge that the money should be sufficient to look after him properly for the rest of his life and the ruling will apply to all other people with large compensation claims.

The Court of Appeal has refused permission to the NHS to take the case to the House of Lords 

For further information, call Richard Barcan on 0117 925 8080 or email  rab@barcanwoodward.co.uk

Issued by  Barcan WoodAward, Solicitors, King William House, 13 Queen Square, Bristol BS1 4NT,

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Whiplash Injury results in damages of £1.85 million

Believed highest award recovered in England for whiplash injury.We recovered £1.85 million for our client in this case, who was 44 years old at the time of her road traffic accident. 

Her injuries caused intrusive neck and back pain, vestibular dysfunction causing nausea, dizziness and cognitive problems, and fatigue.

The Claimant consulted us after she was dissatisfied at the way the firm she had originally instructed were handling her claim. We took it over and carried out a detailed investigation of what the Claimant‘s personal injuries were and how this had affected her life.

Once all the information was to hand we arranged a meeting with the Defendant‘s legal team and we were able to negotiate a settlement for our client.  In this case, as is usually the case, we could settle the matter without the client having to go to court.

Call us now 0117 925 8080

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