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Changes to the Highway Code in January 2022

The Highway Code has been updated and important changes were introduced from Saturday 29 January 2022. The changes are the result of a public consultation and they apply to England, Scotland and Wales.

The Introduction to the updated Highway Code states that it is designed to improve road safety for the most vulnerable road users, being pedestrians, cyclists and horse riders.

All road users are to be considerate towards one another.

There are eight particular changes to the Highway Code that you need to be aware of:

1. Hierarchy of road users

There is a new “hierarchy of road users”. This puts the most vulnerable road users, including pedestrians, at the top of the hierarchy.

2. People crossing the road at junctions

When people are crossing or waiting to cross at a junction, other road users should give way to them because they have priority.

Drivers and cyclists must give way to people on a zebra crossing and people walking and cycling on a parallel crossing.

3. Walking, cycling or riding in shared spaces

Cyclists and horse-riders should respect the safety of pedestrians in shared spaces but pedestrians should also take care not to obstruct or endanger them.

Cyclists are asked to take care when passing other users, for example, by not passing them too closely or too quickly, slowing down and giving warning of their approach (for example, by ringing their bell), and not passing a horse on the horse’s left.

4. Positioning in the road when cycling

There is updated guidance about the positioning of cyclists in the road.

Cyclists may ride in the centre of their lane on quiet roads, in slower moving traffic, and at the approach to junctions or where a road narrows.

Cyclists should keep at least 0.5 metres from the kerb edge when riding on busy roads.

People cycling in groups should be considerate towards the needs of other road users and allow motorists to overtake them when it is safe to do so.

Cyclists in groups can ride two-abreast.

5. Overtaking when driving or cycling

It is permissible to cross a double-white line, if necessary, in order to overtake a cyclist or horse rider if they are travelling at 10mph or less.

There is updated guidance on safe passing distances and speeds for people driving or riding a motorcycle when overtaking vulnerable road users.

Cyclists may pass slower-moving or stationary traffic on the right or left but should proceed with caution.

6. People cycling at junctions

When turning into or out of a side road, cyclists should give way to pedestrians who are crossing or waiting to cross.

There are new special cycle facilities at some junctions, including small cycle traffic lights at eye-level height which may allow cyclists to move separately from or before other traffic.

There is also new guidance for cyclists where there are no special facilities for them at junctions. The Code recommends that cyclists should behave like other traffic where there are no separate cycling facilities, including positioning themselves in the centre of their chosen lane, where they feel safe to do so.

The Code includes advice for cyclists using junctions where signs and markings tell them to turn right in two stages.

The Code clarifies that cyclists going straight ahead at a junction have priority over traffic waiting to turn into or out of a side road, unless indicated otherwise.

7. People cycling, riding a horse and driving horse-drawn vehicles on roundabouts

Motorists and motorcyclists should give priority to cyclists riding on roundabouts. They should not, for example, attempt to overtake a cyclist within that person’s lane.

Motorists should not cut across cyclists, horse riders or people driving a horse-drawn carriage, who are continuing around the roundabout in the left hand lane.

8. Parking, charging and leaving vehicles

The Code recommends the use of a new technique when a person is leaving a vehicle.

Drivers and passengers should open the door using their hand on the opposite side to the door they are opening. For example, a driver should open their door using their left hand. This makes them turn their head to look over their shoulder behind them. This will help to avoid collisions with cyclists, motorcyclists and pedestrians, who may be approaching from behind the vehicle.

The Code now also includes guidance about using an electric vehicle charge point.

The updated Highway Code will be published in April 2022 but is currently available online.

How to Avoid the Nightmare before Christmas (Injuries, Not the Film)

Hallowe’en is a comparatively more popular holiday across the pond compared to here in the UK. But throughout the years, more and more children in the UK take part in dressing up and participating in ‘trick-or-treating’ around their area. Adults get involve too, by also dressing up and hosting, or attending, parties or going to their local pub, before heading to town to dance the night away.

Sometimes accidents and injuries can occur, unfortunately. Knowing that an injury can happen whist you are dressed up as either a fictional monster or a horrible sight – e.g. a defendant lawyer (ahh!) - is part of the preparation that you should understand, as you may find yourself in litigation over the cause, and you may need services from a personal injury lawyer (me!).

With the weather getting colder and clocks going back an hour, adults and children commonly go out at night when visibility is poor, costume masks that further restrict vision may be worn, and as a lot of people will be out and about to enjoy the holiday, the probability of an accident naturally increases. According to Churchill Car Insurance analysis published by the Department for Transport on 31 October 2017 reveals there is an increased risk of being hit by a car posed to young ‘trick-or-treaters’ on Hallowe’en.

What are the common types of accident that could occur, you say?

Slips, trips and falls

This is probably the most common type of accident on Hallowe’en, mostly due to walking around at night in an unfamiliar costume with people around. Most slips, trips and falls are not that serious and they cause bruising at worst. However, an unexpected fall can lead to a more serious injury, including concussions and fractures. Be mindful of where you are stepping and be cautious of your surroundings.

Road Traffic Accidents

While we would like to think that drivers tend to be alert and attentive on a non-Hallowe’en day, accidents can still occur. Hallowe’en is also a night for partying, which may mean more drivers on the road who should not be behind the wheel. Although drunk driving is a danger all year round, it tends to become more dangerous during holiday seasons such as Hallowe’en; with more children and adults being out at night along the streets and roads. Injuries range from mild to serious, or even fatal. This often happens when children and adults cross the street from one location to another without taking the proper precaution of looking both ways.

Now, Hallowe’en should be an enjoyable holiday for you and all of your family. Injuries can happen at any time and in any place. That is why you need to keep your guard up when you do go out and about. Things may be a little different this year, but one usually finds a way to still have fun.

However, even the best preparation cannot account for all potential situations. So, if you or a family member becomes injured we at Lanyon Bowdler can help. But we’d rather you stay safe. Happy ‘trick-or-treating’!

I Told You So!

In a previous blog https://www.lblaw.co.uk/blog/new-changes-for-those-injured-in-road-traffic-accidents I wrote about a new system which was being introduced which significantly reduced the compensation that those injured in road traffic accidents would receive. It also altered the rules regarding the recovery of legal costs, such that injured people would recover nothing from the insurers in respect of the cost of legal advice, unless their claim was worth more than £5,000.00.

The government’s justification for this, was that the new system was designed in a very straightforward way, so that those who were unfortunate enough to be injured would be able to pursue the claim themselves without legal advice. I explained how the guide which advised people how to do this was 64 pages long and fairly complex, and I said that I thought it was completely unrealistic to expect people to deal with such claims on their own.

On 21 October the Ministry of Justice released statistics regarding the claims which were submitted during the first three months of the new system, which are available here. The most striking statistic is that out of the 45,718 claims submitted, 41,387 were done so by legal representatives on behalf of the injured person and only 4,331 (less than 9.5%) were submitted by the injured person themselves.

This means the system, whose principal objective was said to enable injured people to use it themselves, has failed in this aim. This means that more than 90% of those unfortunate enough to have been injured are now faced with the double insult of receiving less compensation than they would have done previously, and having to make a greater contribution to their legal costs out of this. The only winners in this story, as is often the case when changes to personal injury claims are made, are the insurers.

No Time to Kill (or Get Serious Injuries)

When watching the new Bond film, I found myself wondering whether, as a society, we have any understanding of how vulnerable the human body is. Hollywood certainly doesn’t understand how little force is needed to break a bone. And yes, in case you are wondering, this is a principal reason why I am not a fun person to watch action films with. I will often turn to my fellow audience member after an exhilarating action scene and point out, ‘by the way despite the film pretending the protagonist is fine, they actually have a serious spinal injury and probably a head injury too’. One of my pet peeves is when films treat a knock-out punch as an off-switch, which results in the victim waking up in the next scene with no ill effects, when actually a loss of consciousness following head trauma is indicative of a traumatic brain injury.

Generally speaking humans struggle to accurately assess risks and can underestimate how dangerous common place or everyday activities are. For instance, more people suffer anxiety about flying than driving despite your statistical chance of being in an accident being much higher when travelling in a motor vehicle. I do wonder whether the portrayal of Bond (or other action stars) shrugging off bullet wounds, falling 30 feet plus, or their car flipping over and smashing into walls, adds to how poor our perception is of risk. Do we feel on a subconscious level that if we fell off that ladder, we wouldn’t be too badly hurt? Or in the words of Captain America, that if we died, we would be able to ‘walk it off’.

There is also often a lack of portrayal in most action-heavy films of how traumatising these events would be. Most people who are a victim in an accident or witness an accident are not able to respond with funny quips or puns, but instead find these difficult experiences which take time, and often therapy, to process. Even when films do hint that a character is suffering from PTSD, this is normally disregarded within 20 minutes or so.

Personally I would be keen for films to more realistically portray the consequences of an action scene. I think it would much more exciting to watch a chase scene where if the car crashed into another car, the protagonist would actually be injured rather than just suffering the obligatory limp which is forgotten by the time they cut to the next scene. It would at least save my audience members from me continually pointing out, ‘yeah they just died’.

Click here for The Legal Lounge podcast in which Dawn and I discuss personal injury claims, including those relating to spinal injuries.

For more information or advice, please contact our specialist personal injury team.

Helping the Armed Forces Community - the Time is Now!

The armed forces community should enjoy the same standard of, and access to, health as that received by any other UK citizen in the area they live. Those injured in service, whether physically or mentally, should be cared for in a way, which reflects the nation’s moral obligation to them whilst respecting the individual’s wishes. For those with concerns about their mental health, where symptoms may not present for some time after leaving service, they should be able to access care with health professionals who have an understanding of armed forces culture. Sadly, sometimes, this is not the case and there are a number of ex service personnel who have both mental and physical problems as a consequence of their military service. The government has addressed this by means of the Armed Forces Covenant, which describes how public services broadly should support current serving personnel, military veterans and their families.

The government has a particular responsibility of care towards members of the armed forces. This includes responsibility to maintain an organisation which treats every individual fairly, with dignity and respect. As part of the government’s work to make the UK the best place in the world to be a member of the armed forces, the Minister for Defence, Leo Docherty’s statement made on 22 September 2021 says that he is “committed to ensuring that all veterans who may be struggling are able to access dedicated support”. This statement was made in relation to the increasing numbers of veterans who tragically take their own lives. Read more here.

Mr Docherty continues saying that “The UK government is working to develop a new method for recording and reporting cases of suicide within the veteran community.” This new method identifies statistics of veterans who die by suicide each year in England and Wales. This new work will ensure that the government is meeting its responsibility of care towards the members of the armed forces and to better understand the tragic issue of suicide to implement “future policy and interventions in support of the veteran community”.

While the government undertakes its new method, it is also best to know what help is out there. We as a community can assist by signposting members of the armed forces to various support organisations.

If you know someone who is a member of the armed forces, within your family, friends or acquaintances who are dealing with issues like post-traumatic stress disorder (PTSD), anxiety and depression, there are many organisations out there that provide specialist treatment and support from every service and conflict, focusing on those with complex mental health issues related to their military service. Here are some notable organisations we have referred our armed forces clients to:

In this week's podcast episode we welcome Andrew Preston, a veteran who has to live with PTSD, who shares his story with Louise Howard - listen here.

If you are worried about a member of the armed forces, try to get them to talk to you. Just listening to what someone has to say and taking it seriously can be more helpful. Reaching out to someone could help them know that someone cares, that they are valued, and help them access the support they need. Everyone copes and reacts in their own way, and the time to give them support is now. Not next month, next week or tomorrow, but NOW.

Wingardium Lawyerosa

Lucy Speed and I recently led a workshop with Idsall School and this is what one of their students, Matthew Jones, had to say.

On 6 July, the worlds of law and Harry Potter collided in the Year 12 negotiation workshop task, where we investigated a personal injury case involving Ron Weasley.

We were given a booklet which related our activity to the working world of law, containing law terms such as ‘contributory negligence’ and ‘capacity’, while outlining the boundaries for what the claimant can realistically argue from the defendant - if the injured person has never bothered to buy a car before, they do not now need a flying lamborghini.

The booklet then shifted from the muggle world to the facts of the case: in this universe, Ron Weasley is thirty, alone, living in a two bedroom flat, owns a dog called Fluffy, works as a barman at the Leaky Cauldron and made the reckless decision to travel with Harry Potter.

On the afternoon of Wednesday 24 January 2018, Harry crashed his BMW i8, leaving Ron, who did not put on his seatbelt, with severe head injury, fractured pelvis, broken left wrist, dislocated left shoulder and fractured left ankle - I thought there was a spell for that.

The experts - everybody from Professor Snape to Dean Thomas - gave us more vital information, such as the prices of nearby accommodation, and the cost of a case manager, while Ron’s friends relayed his current condition - sleeping 12 hours a day, and unable to keep money, while Ron said he does not know if anybody would want to be with him now.

After having an hour to read over the booklet, each group took on roles as claimant and defendant to crunch the numbers to get a realistic estimate of how much each part of the case would cost, highlighting the need for numeracy skills and being able to give a confident argument in the world of law, effectively taking skills from opposite ends of the curricula.

My team - the only one containing two defendants and one claimant; and yet the claimant still defeated the defence’s point nearly all of the time - relayed our agreed figures first, including the controversial £0 for a dog walker, since we thought Ron shouldn’t have Fluffy anymore, with the primary goal to be as perceptive as possible into the conditions of the case in our argument.

Subsequent groups perhaps did this better than ours, picking up on obscure details that passed our minds - such as Ron not needing 16 hour care when he’s only awake for 12 hours, while taking the claimant and defendant figures and compromising on a number that followed a logical course of thinking, rather than our approach of choosing either the claimant or defendant figures and hoping one would magically be right.

Overall, every team spoke about a detail of the case others did not get to, implying a sense of individuality in law: in being equally analytical but reaching different, but equally correct, conclusions, while getting a taste of being a lawyer in a case that would probably never happen - a former wizarding chess champion falling victim to a car crash.

Even if some of us do not end up in the field of law, the skills in practice at the workshop are key to nearly all professions - reading carefully, working well with other people, arguing your point succinctly, handling numbers and being a confident speaker.

Thank you very much to Matthew for an informative, entertaining and insightful blog, and to everyone at Idsall School who took part.

As Matthew has outlined, extra curricular activities, such as mock trials and mooting competitions, are an excellent way to develop skills and experience. We regularly run mock trials for local schools.

Please contact us if you are would like to find out more. If you are interested in work experience, please click here.

New Changes for Those Injured in Road Traffic Accidents

Monday 31 May 2021 marks the date when two significant changes come into force regarding compensation for those unfortunate to be injured in a road traffic accident. The first of these relates to the contribution which the defendant or, more usually, their insurers have to pay towards the injured person’s legal costs, and the second relates to how the compensation is calculated for what are commonly described as whiplash injuries.

At the present time, the claim for the injuries has to be worth in excess of £1,000 for the insurers to have to contribute towards the injured person’s legal costs. For the vast majority of cases, that figure will rise to £5,000, a fivefold increase. The bad news does not stop there, because at the same time, a tariff system is being introduced to determine the value of such claims, and this will lead to a significant reduction in the levels of compensation recovered. At the bottom end of the tariff system is a fixed figure of £240 for those people who suffer a whiplash injury, which takes up to three months to settle. Under the current system for valuing injuries, the same person would be entitled to receive up to £2,300, this therefore represents a reduction of almost 90%. For a whiplash claim to be worth more than £5,000 under the new system, the symptoms would have to last for more than two years.

And the Good News?

The practical effect of this on those injured is that it will be uneconomical to instruct a solicitor to deal with the claim in the way they would now, so they will have to deal with it themselves, or make a significant contribution to their legal costs. The only good news is that it only applies to accidents on or after 31 May 2021.

An online portal has been designed, which is meant to assist people to pursue their own claims and a guide of no fewer than 64 pages has been issued. I have been doing this type of work for almost 20 years. I have watched several webinars about the changes as well as attending a full day course last week and I think that I have just about got my head around it all. I think it is completely unrealistic to expect people to deal with these claims on their own.

You might wonder what the justification is for such significant changes and I have been told there are two. The first is to reduce fraudulent claims and the second is to reduce insurance premiums. I have not seen anything within the changes, which will reduce fraud; in fact I heard one barrister explain recently that it will actually make it harder for insurers to fight fraudulent claims. This is because if they allege that the claim is fraudulent but such an allegation is not proved, the injured person would be able to recover the cost of instructing a solicitor and the insurers would also incur their own legal costs. It would therefore be cheaper for insurers to simply settle such claims.

Will I Save on My Insurance?

As to whether it will reduce insurance premiums, I would not recommend holding your breath on that. According to data published by the government, during 2020, due to COVID, the number of personal injury claims following road traffic accidents fell by 47% compared with 2019, yet over the same period, car insurance premiums fell by just 1%. The reforms are based on a promise by insurers to pass on to customers any savings made, but based on these figures, I just cannot see that happening. It is about time that insurers admitted that rising car insurance premiums have very little to do with personal injury claims and the government started thinking about the rights of those who have been injured by someone else’s negligence. The absurdity of the reforms are best explained by asking the following question:

How can it be right that someone who suffers a three month whiplash injury following a road traffic accident receives £240 and has to deal with the claim themselves, yet someone who suffers the exactly the same injury, following, for example, a fall at work, receives up to £2,300 and the assistance of a solicitor? Answers on a postcard please!

For more information please contact our specialist personal injury team.

Personal Injury Time Limit Within Overseas Operations (Service Personnel and Veterans) Act 2021

On 29 April 2021, the Overseas Operations Bill received Royal Asset.
What Does This Mean for Our Service Personnel and Veterans?

Part 1 of the Overseas Operations (Service Personnel and Veterans) Act (OOA 2021) ensures that when judges are deciding whether to prosecute service personnel and veterans of an overseas criminal offence, consideration is taken for the unique context of the alleged offence having occurred abroad.

Part 2 of the OOA 2021 encompasses civil claims, including personal injuries arising from overseas operations. Such claims are now subject to an absolute limitation period of six years from the date of the incident, or six years from knowledge of the incident, meaning that judges are unable to use their discretion to allow claims after this period.

Why Is the OOA 2021 Necessary?

The Ministry of Defence (MOD) asserts that the OOA 2021 is needed to protect military personal and veterans participating in overseas operations following an unprecedented increase in the number of legal claims, in particular regarding past operations in Iraq and Afghanistan. The government claims the OOA 2021 will create certainty and protect service personnel and veterans from the continued threat of repeated investigations and potential prosecution.

The Association of Personal Injury Lawyers (APIL) publicly rejected the foundations of such claims, stating that only the MOD will benefit from such amendments to the law, as the MOD will consequently avoid liability for compensating those injured as a result of their negligence. In fact, it also remains unclear to us, as to why the MOD has chosen to deny its valiant service personnel compensation by introducing a long stop limitation date that civilians (and those our forces are serving) are not subject to. In usual personal injury claims involving occupational liability, the judge usually has discretion to allow out of time claims. This option has been taken away from those injured by overseas operations for reasons that remain unclear and unsupported.

Six years may appear to be a generous amount of time to bring a claim, however APIL has cited two main difficulties with this “arbitrary” time limit:

  • Injured service personnel are often wrongly informed they are unable to pursue a claim or wrongly informed they don’t have a valid claim by those higher in rank.
  • PTSD is a common personal injury that is sustained within the forces and its symptoms can vary enormously. Some members may be unable to talk about what has happened to them even six years following a diagnosis.

Should we be denying justice to our servicemen and servicewomen because they are not able to talk about the devastating events that caused their psychological injuries in the near future? Should we be denying justice to our servicemen and servicewomen because they were wrongly manipulated or belittled into believing that their injuries were not caused by any negligence? It is also of note that a large proportion of claims are for noise-induced hearing loss, something which may not become immediately obvious and could remain latent and undiagnosed for decades.

Proposal of Amendment to Original Bill

The House of Lords appeared to recognise these issues and proposed an amendment to the original bill, calling to exclude “actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that [Part 2] imposes in respect of actions relating to overseas operations.” This amendment recognised the importance of those who put their life on the line by serving their country overseas. Although, some have argued it did not go far enough and indirectly created a two-tier system in which civilian employees or families of deceased personnel may have been unable to make claims.

The potentially discriminatory impact of the two-tier system became a moot point as the House of Commons rejected the Lords amendment in its entirety by a majority of 357 to 268. Part 2 applies in the same way “to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals” and the government states that “service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.”

During the debate in the House of Commons of the above amendment, it was argued by MP Leo Docherty that approximately 94% of the claims brought against operations in Iraq and Afghanistan were brought within the six year time limit. However, MP John Healey cited findings that if the bill had been enforced since 2007, then 195 troops would have been caught and prevented from pursuing a successful claim.

Regardless of statistics, we contend that no single person prepared to put their lives on the line for their country should be denied from seeking compensation and justice for their injuries sustained as a result of doing so. We can therefore see no justification for our armed forces having less protection for personal injuries than those they are fighting to protect. For more information, please contact our personal injury team.

Personal Injury Time Limit within the Overseas Operations (Service Personnel and Veterans) Act 2021

On 29 April 2021, the Overseas Operations Bill received Royal Asset.

What Does This Mean for Our Service Personnel and Veterans?

Part 1 of the Overseas Operations (Service Personnel and Veterans) Act (OOA 2021), ensures that when judges are deciding whether to prosecute service personnel and veterans of an overseas criminal offence, consideration is taken for the unique context of the alleged offence having occurred abroad.

Part 2 of the OOA 2021 encompasses civil claims, including personal injuries arising from overseas operations. Such claims are now subject to an absolute limitation period of six years from the date of the incident, or six years from knowledge of the incident, meaning that judges are unable to use their discretion to allow claims after this period.

Why Is the OOA 2021 Necessary?

The Ministry of Defence (MOD) asserts that the OOA 2021 is needed to protect military personal and veterans participating in overseas operations following an unprecedented increase in the number of legal claims, in particular regarding past operations in Iraq and Afghanistan. The government claims the OOA 2021 will create certainty and protect service personnel and veterans from the continued threat of repeated investigations and potential prosecution.

The Association of Personal Injury Lawyers (APIL) publicly rejected the foundations of such claims, stating that only the MOD will benefit from such amendments to the law, as the MOD will consequently avoid liability for compensating those injured as a result of their negligence. In fact, it also remains unclear to us, as to why the MOD has chosen to deny its valiant service personnel compensation by introducing a long stop limitation date that civilians (and those our forces are serving) are not subject to. In usual personal injury claims involving occupational liability, the judge usually has discretion to allow out of time claims. This option has been taken away from those injured by overseas operations for reasons that remain unclear and unsupported.

Six years may appear to be a generous amount of time to bring a claim, however APIL has cited two main difficulties with this “arbitrary” time limit:

  • Injured service personnel are often wrongly informed they are unable to pursue a claim or wrongly informed they don’t have a valid claim by those higher in rank.
  • PTSD is a common personal injury that is sustained within the forces and its symptoms can vary enormously. Some members may be unable to talk about what has happened to them even six years following a diagnosis.

Should we be denying justice to our servicemen and servicewomen because they are not able to talk about the devastating events that caused their psychological injuries in the near future? Should we be denying justice to our servicemen and servicewomen because they were wrongly manipulated or belittled into believing that their injuries were not caused by any negligence? It is also of note that a large proportion of claims are for noise-induced hearing loss, something which may not become immediately obvious and could remain latent and undiagnosed for decades.

Proposal of Amendment to Original Bill

The House of Lords appeared to recognise these issues and proposed an amendment to the original bill, calling to exclude “actions brought against the Crown by serving or former service personnel from the limitations on courts’ discretion that [Part 2] imposes in respect of actions relating to overseas operations.” This amendment recognised the importance of those who put their life on the line by serving their country overseas. Although, some have argued it did not go far enough and indirectly created a two-tier system in which civilian employees or families of deceased personnel may have been unable to make claims.

The potentially discriminatory impact of the two-tier system became a moot point as the House of Commons rejected the Lords amendment in its entirety by a majority of 357 to 268. Part 2 applies in the same way “to all claimants bringing claims connected with overseas operations against the MOD, whether they are military personnel, civil servants, contractors or local nationals” and the government states that “service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.”

During the debate in the House of Commons of the above amendment, it was argued by MP Leo Docherty that approximately 94% of the claims brought against operations in Iraq and Afghanistan were brought within the six year time limit. However, MP John Healey cited findings that if the bill had been enforced since 2007, then 195 troops would have been caught and prevented from pursuing a successful claim.

Regardless of statistics, we contend that no single person prepared to put their lives on the line for their country should be denied from seeking compensation and justice for their injuries sustained as a result of doing so. We can therefore see no justification for our armed forces having less protection for personal injuries than those they are fighting to protect. For more information, please contact our personal injury team.

Spinal Cord Injury Awareness Day 21 May 2021

#SCIAD21 is reflecting on the impact of the pandemic and looking at stories of adversity, strength and survival.

Following on from last week’s Mental Health Awareness Week, I thought it would be helpful to focus on the issue of mental health and how this impacts upon spinal cord injury. The pandemic has brought its own challenges, which coupled with an injury clearly has significant bearings upon individual mental health, not only in relation to treatment and support available, but to coping strategies too, both in newly injured spinal patients and those continuing with their spinal injury journey.

My own practice includes clients across the spectrum. In terms of age I have adolescents right up to the recent, sad case of an 80 year old involved in a life-changing, catastrophic road traffic accident. I am privileged to act for these clients, who have come through their individual challenges showing an unprecedented strength of character, as well as physical resources. Mental health support is so important both in relation to the consequences of the trauma of the accident, as well as dealing with the subsequent issues that can flow from the injury on a lifetime basis.

A client’s mental health can be influenced by many things, whether it is an encouraging smile from medical staff (more difficult from under a mask in the current pandemic), a cheery word or an acknowledgement of concern from the legal team, as well as professional mental health awareness therapies together with the knowledge that such things as bowel and bladder management, tissue viability and vocational, education and employment issues are being dealt with. This also includes support from and to the wider family and friends coping with the ramifications of traumatic spinal cord injury. Regaining independence and mobility, and working towards those goals that arise at all stages of the journey are fundamentally important. Good mental health is a building block to coping with all steps of that journey. Communication is the key, whether it is with medical or legal professionals, case managers or treating practitioners.

At all times good emotional health is a significant contributor to overall wellbeing, physical recovery and coping mechanisms.

Often we see many aspects of psychological challenge whether it is anger, frustration, tearfulness and this too can have a significant knock-on effect on relationships, both at work and at home. Add to that the usual plethora of emotional daily life changes, whether it is hormonal changes, puberty or menopause, family changes with having children, family relationship changes. Financial or social related issues of every scenario created within the family dynamics. Sometimes there may be a breakdown in a relationship or the focus of a new challenge, possibly work or community independence and often there may be a reluctance to talk about issues due to embarrassment, isolation or mental health taboos. These are all difficult enough, particularly when compounded with an injury that is then brought into the mix. Often chronic pain is a common feature of spinal cord injury with more than half the individuals experiencing some form of neuropathic pain, which again can have a negative impact upon both physical and psychological health. However, having a spinal cord injury does not mean that general health can only be assessed in terms of physical injury and the psychological wellbeing of our clients is paramount. The last 12 months and the impact of the pandemic have been difficult in terms of getting clients’ medical appointments and, in particular, counselling with what normally would have been face-to-face support. Having strategies in place to help with the emotional wellbeing has been paramount.

In addition to the usual headings in a spinal injury schedule of loss including loss of earnings, mobility, accommodation, case management, occupational therapy, tissue viability, bowel and bladder management to name but a few, counselling, relaxation, diet, sporting opportunities, holistic therapies and outdoor pursuits have become even more important.

I have recently read the Karen Darke article in the April 2021 issue of the Forward Focus Spinal Injuries Association magazine and note that her comment, “My world was not limited by being in a wheelchair. Our ability to do anything is a state of mind not a state of body”.

The challenges of the pandemic have made spinal cord injury limitations even more challenging, however we are constantly inspired and humbled by the stories of adversity, strength and survival of many who have overcome these obstacles. Whilst the pandemic has made things even more challenging. it has emphasised the need to strengthen the opportunity to not only focus upon physical fitness and motivation which can give rich, rewarding and fulfilling experiences, but also the need to ensure that the mental health building blocks and opportunities were well and truly established in the first place and to ensure that once restrictions are lifted those opportunities can be further embraced.

Climbing Out was formed in 2010 by Kelda Wood, who was profoundly affected by the dramatic effect that the outdoors had on her own physical and mental recovery after a serious injury. Kelda provided a motivational speech when she attended our staff conference, stating her aim was to challenge and inspire young people in helping them gain belief in themselves and develop the confidence to realise their full potential. The programmes that she offers through Climbing Out are fully funded and available to young people of 16 to 30, but for the pandemic two of my spinal injured clients were due to be assessed to attend Climbing Out. The pandemic has pushed their ability to do this back a little, however the focus is still both on the physical and psychological challenges and improving mental health wellbeing continues to be a driving force.

For more information, please contact a member of Lanyon Bowdler’s personal injury team.

Shropshire Fire & Rescue Service Still Battling Large Blaze at Telford Recycling Plant

On Monday 26 April 2020, thick grey smoke could be seen billowing in the sky across Telford as a major fire broke out in the recycling centre on Greenway Polymers site in Wellington. Plastic waste and machinery caught fire at the plant sending disruption not only to nearby residents but to schools, businesses and M54 users.

It is now days later and the waste is still burning. Shropshire Fire Services are working tirelessly to control the fire and at the height of the fire over 60 firefighters were tackling the flames. Due to the complexity of the materials on fire, the fire services believe it could take around 7-10 days to resolve, with a clean-up operation potentially taking months.

It is thought that the recycling plant will now be demolished for safety reasons with the structure being dismantled to allow crews full access to the area.

Public Health England has given the following advisory message:

Any smoke can irritate airways, skin and eyes and cause coughing, wheezing breathlessness and chest pain. Chemicals in smoke can also worsen health problems like asthma and heart conditions so people should carry their medication if they are in areas affected by the smoke. Chemicals in the smoke can worsen existing health problems like asthma. People with asthma should carry their inhaler. If symptoms occur, people should seek medical advice or call NHS 111.

Fire officers have recommended that people stay away from the area and that nearby residents and businesses in close proximity continue to keep their doors and windows shut until the smoke has dispersed. Many have also been warned of the hazards of the ash in addition to the smoke.

An investigation has started to identify the cause of the fire and the environment agency is monitoring the air quality around the site as well as the water quality downstream of the fire.

If you have any of the above symptoms or experience a worsening of an existing condition, we firstly recommend that you seek medical advice or call 111. Secondly, if you go on to develop chest, heart or lung problems as a result of the toxic fumes from the fire and you would like advice, then please contact our specialist personal injury team for more information.

It is important to get advice as soon as possible and in any event within a maximum of three years from when you become aware of any problem.

Proposed Reforms in Relation to Changes to the Small Claims Court Limit

In 2017 the government announced proposed reforms in relation to changes to the small claims court limit in personal injury claims from £1,000 to £5,000 in relation to road traffic accident claims, and £2,000 in other personal injury claims. The idea behind the reforms means that claimants who suffer injuries deemed to be worth less than £5,000 in a road traffic accident and less than £2,000 for other personal injury claims will need to make their claim without legal representation as they will not be able to recover any legal costs.

The original date for implementation of April 2019 has now been postponed on three occasions with the latest expected date of implementation of 6 April 2021. However, with only three months left to go there is still little information available as to how exactly the system will work, as the Ministry of Justice have still not published the rules and procedures.

The world is dealing with COVID-19, which has impacted everyone in some form, the delay of publication of the rules cannot solely be down to the pandemic. The proposals for the reforms date back to 2017 and if the implementation date is to go ahead, early publication of the rules and procedures is critical. I have always had serious concerns in relation to the proposed changes, because of the impact being unrepresented by a lawyer may have on injury victims.

There are many aspects of the reforms that have not been thought through and an unintended consequence may be to drive claimants into the arms of claims managers. What is clear is that there appears to be a big issue in relation to what happens if the value of a claimant’s claim cannot be agreed. There is supposed to be a system to avoid the need for the claimant to have to go through the small claims court, but it does not appear that at this stage, a workable solution has been found. The system has only recently been reformed, and that is working well so surely there is no need for any further reform. The fact that so many issues still need resolving, over three years since the reforms were proposed is an indication that things should be left as they are.

It is not surprising that the insurance industry is now calling for the Ministry of Justice to publish the rules, because, of course, they want claimants to be unrepresented in bringing their claims. If the reforms are not to be scrapped, I would like to see the government take their time in considering the reforms, to ensure personal injury victims are not deprived of access to justice. The delays in publication of the rules are not benefiting anyone.

I am also concerned some claimants may be waiting for the reforms to come into force before commencing their personal injury claim, as they may believe it is better for them to deal with their claim directly with an insurer, without legal representation, as this will mean more damages for them on conclusion of the claim. However, this will not necessarily be the case. The insurance industry does not want claimants to be legally represented, because they know a claimant will usually be advised by their legal team to obtain medical evidence in support of their claim. This will ensure that the injuries suffered, and their outcome, are fully investigated which can often lead to an increase in the value of a claim. The legal team will also advise the claimant against consideration of any offers which are made before any medical evidence is obtained. This can be frustrating for the insurers as they want to settle the claims as soon as possible for the lowest amount possible. Most importantly most clients will have no idea as to the likely award that would be made by a court, and there is a serious risk of insurers taking advantage of unrepresented claimants.

I am also concerned that some potential claimants may be waiting to start their claims because of the COVID-19 pandemic. These claimants should not wait. The current proposed date is 6 April 2021 and that will soon come around and there is every chance COVID-19 will still be prevalent at that time.

We can offer clients over the telephone or on a virtual platform such as WhatsApp or Zoom. I have started several new cases using virtual platforms as a way to provide appropriate advice and this has worked well.

The role of the legal team is more than just obtaining the correct compensation for the victim of a personal injury claim. It is also about ensuring clients have the appropriate rehabilitation to provide them with the best possible outcome in relation to their injuries sustained. And to help those with serious life changing injuries have all the right information with respect to their entitlement to benefits, and organisations, in their area, which can provide them with help and support, and to support them when going through the legal process. Having this team approach means it allows a claimant to focus on the most important thing, which is recovering from their injuries.

I would encourage anyone with a potential claim not to delay and to seek advice as soon as possible. The tariffs under the reforms mean damages for whiplash cases will be much less than they are now, and it is still not clear whether or not this will only apply to an accident after the implementation date, so it is better to start a claim as soon as possible. COVID-19 does not appear to be going away any time soon and whilst it is not clear whether the current reform date of 6 April 2021 will be met, changes are likely at some point in the future.

For more information please contact our personal injury team.

The Rugby Brain Injury Claims

It was recently reported that a large group of ex-rugby players, some of whom are only relatively recently retired, are bringing claims against rugby governing bodies following the shocking news that they have been diagnosed with a form of early onset dementia and probable chronic traumatic encephalopathy. Those bringing the action claim that their diagnoses have arisen from negligent mismanagement related to repeated head injuries and concussions sustained throughout their careers. A number of current and former players have since publically shared their own concerning experiences, including World Cup winner Kat Merchant, who recently told the BBC that at the age of 35 she suffers ongoing symptoms of concussion and has a lower cognitive capacity than previously.

What Should Be Considered?

These cases will doubtlessly be complex and multi-factorial, but, in order to be successful, the claimants will essentially have to prove that they were owed a duty of care by the defendants before proving that the defendants breached the relevant standard of care that applied throughout their playing careers. They will then have to show that their diagnoses were more than likely caused by such a breach or breaches by the defendants. Another key factor to be considered will be the degree of risk to which a player will have consented to by taking part in a high impact sport such as rugby, whilst any court decision would likely seek to avoid adversely impacting and hindering a desirable activity. Rugby is a sport enjoyed by millions across the world and brings many benefits such as physical fitness, discipline and social interaction and any court judgment will likely, as a matter of public policy, be cautious not to detract from these benefits.

It is unusual to see such high-profile and widespread litigation arising in a sporting context, although the above claims are not without some sort of precedent. In 2011, a class action lawsuit was brought against the NFL by a group of former American football players, leading to the creation of a fund specifically for players with such claims which, to date, has paid out over eight million dollars. The litigation also prompted a raft of changes to improve safety surrounding concussions. It is unclear how the claims brought in the rugby context will progress, but the claimants have already set out a list of “15 commandments” to improve safety surrounding head injuries in the game. Such requests include a limit to contact training and improved education on the issue of concussion.

Which Other Sports Have Been Impacted?

Whilst the progress of the litigation is something that lies in the hands of the relevant parties and potentially the court, it is worth noting the impact that these claims have already had by way of the significant publicity the story has generated and the number of players that have subsequently shared their story. It has also shone a light on other sports. Despite its significantly higher profile, football often appears to be playing catch up in its implementation and application of safety surrounding head injuries, something highlighted by Alan Shearer in his 2017 documentary ‘Dementia, Football and Me’. This was starkly evident when Arsenal defender David Luiz recently played on for 40 minutes after suffering a head injury before eventually being substituted. The impact was so severe it caused a fractured skull to his opponent, Wolves striker Raul Jimenez, requiring emergency surgery.

Whilst the circumstances of the claimants that have ignited the litigation in rugby are tragic, the increased publicity has prompted further debate and put significant pressure on sporting governing bodies to ensure that the sports they govern are as safe as they reasonably can be. This increased awareness of the risks of concussion can also benefit wider society, with the NFL litigation leading to considerable progress in the medical sector’s understanding of chronic traumatic encephalopathy. Such benefits can apply beyond the high-profile sporting sphere and, whilst the priority of most personal injury claimants is to obtain a settlement that seeks to improve their quality of life following their injury, we often see claimants who want to ensure that lessons are learned and that other people don’t suffer in the way they did. Such benefits are often just as important to our clients as the settlement itself and are benefits that can be salvaged from desperately sad situations, such as those the rugby claimants have found themselves in.

The Father Christmas Risk Assessment

I regularly represent HGV drivers after they have been injured, while out driving or more often when collecting or delivering loads. Christmas is normally the busiest time of the year for HGV drivers and it struck me recently that the role of a HGV driver is not that far removed from the role of Father Christmas, whose main job is delivering goods to children.

I often have to advise HGV drivers regarding the duties owed to them by their employers under the various regulations, so for a bit of Christmas fun I thought I would look at the risks faced by Father Christmas at work. To make things more straightforward I have assumed that Father Christmas is employed.

His employer should, first of all, carry out a risk assessment of all the tasks he does, which would undoubtedly identify the risk of injury due to the amount of manual handling he would have to do, so the Manual Handling Operations Regulations would need to be considered. The employer clearly cannot avoid Father Christmas having to lift anything, so they would have to take steps to reduce the risk of injury to the lowest level possible. Providing him with smaller sacks to carry the presents in would be a good start, so that he is not lifting too much weight at any one time.

Health and Safety Impact on Sleigh Riding

The sleigh would have to be considered in light of the Provision and Use of Work Equipment Regulations, which require it to be constructed or adapted as to be suitable for the purpose for which it is used or provided. When selecting it, the employer has to have regard to the working conditions and to the risks to the health and safety of Father Christmas while using it. I suspect that to comply with the regulations a fair few modifications to his current sleigh will be required.

The employer would certainly have to consider the Work at Height Regulations and would have great difficulty in complying with them, as access to buildings via chimneys is clearly not safe. Should it be a white Christmas, or an icy one, Father Christmas would certainly be at risk of slipping and falling, so the Workplace (Health, Safety and Welfare) Regulations would also have to be considered.

Travelling at high speeds around the world in very cold conditions would also bring the Personal Protective Equipment at Work Regulations into play, and I doubt that a red jacket and black wellies would be considered appropriate PPE.

If Father Christmas is to be able to deliver all of the presents on time he will not have time to have much of a break, so his employer would be well advised to ask him to opt out of the Working Time Regulations.

Who knew that the job of Father Christmas was so hazardous?

The Importance of Music in Rehabilitation

For most of us music plays a part in our daily lives; whether listening to the radio during our daily commute, playing an instrument as a hobby or even in our profession. If someone had said ‘music therapy’ to me prior to working at Lanyon Bowdler, I would have probably associated it with listening to different songs depending on a person’s mood. There is, however, far more to it than one might think.

What Is Music Therapy?

The BAMT (British Association for Music Therapy) describes music therapy as ‘an established psychological clinical intervention, which is delivered by… music therapists to help people whose lives have been affected by injury, illness or disability through supporting their psychological, emotional, cognitive, physical, communicative and social needs.’

When asked about the type of therapies a person may require if they have difficulties with their mobility, speech or even their cognition, music is usually unlikely to be one of the common answers. Traditionally, people conclude that the individual may require physiotherapy, or speech and language therapy, and it is unlikely someone would consider music as being able to assist these problems. However, music can be as versatile in how it is used as a therapy tool, as it is diverse in genres. Music therapy can be utilised as a complimentary therapy, standalone therapy or as a precursor to enable fuller engagement in other types of therapies.

How Does Music Therapy Work?

Music therapy can assist both children and adults with an acquired brain injury (ABI), traumatic brain injury (TBI) or other cognitive difficulties. Brain injuries change lives and inevitably have a large impact on the individual and those caring for them. Music therapy can be used to assist individuals suffering with a wide array of difficulties stemming from a brain injury, such as; aphasia, limb movements, gait and balance issues, speech and language, personality changes and much more through varying stages of rehabilitation.

There are many sub-types of music therapies, which enable sessions to target the areas which most impact the client’s daily life. The sessions can be tailored to focus on emotional, social, functional or neuro-rehabilitation goals. They can help develop confidence, awareness, independence and communication skills, which are so important in rehabilitation.

We were extremely fortunate to receive a training session recently from Chroma, a national company providing bespoke music rehabilitation to clients across the country. If you would like more detailed information surrounding music therapy, or their services, please click here.

How Are We Involved?

Our Court of Protection department regularly works alongside a wide range of therapy providers such as music therapists, who provide ad hoc services or are members of multidisciplinary teams for our professional deputyship clients.

As an all-service law firm our professional deputies in our Court of Protection department work closely with our Personal Injury and Clinical Negligence departments to ensure our clients are able to access services and therapies seamlessly throughout their claims, upon settlement and thereafter, as we recognise the importance of rehabilitation. If you would like more information in regards to our professional deputies and how we may be able to help you please call 01743 280280 and ask to speak to a member of our Court of Protection department.

A Day in the Life of Me

Having worked as a personal injury lawyer for nearly 12 months prior to the COVID-19 crisis, the guidance from the government to work from home where possible was daunting for me. I previously had the option to work remotely, but only utilised it if something urgent cropped up, so the idea of fully working from home was a whole new world to me. I have my own caseload to monitor, but also work within a team and am reliant on my team members for direction with tasks on their files. I must admit I was worried that I would not have enough to fill my days whilst working from home. Boy, was I wrong!

Every day is different in my role, so when I was asked to write about a day in my life, I obviously needed to concentrate on work duties but, if you have read my previous blog, you will be aware that my “day” duties begin much earlier than below, and also go on a lot longer than close of business.

So, a day in the (work from home) life of Laura Moulton post-COVID-19 starts very differently from a day in the (office) life.

9am: My work day begins.

Coffee ready – computer on. I begin by checking emails as most lawyers will, as these are the current source of communication for all aspects of our jobs. I consult my calendar to ensure that I am aware of what the day holds. We are still continuing with training, albeit virtually, and so there may be a webinar later in the day. I may also have a department/team meeting for which I need to prepare.

I then concentrate on my tasks for the day. These vary and can include opening new matters and preparing the initial client care paperwork, preparing funding paperwork and also any telephone notes not yet typed up. Any tasks relating to my supervisors’ files can involve requesting medical records, drafting witness statements, arranging conferences with counsel and experts, setting up zoom examinations for clients/experts, producing court bundles (often at short notice given the court’s backlog). There are so many other tasks that could be part of my working day, let’s just say with guidance from my supervisors, if I have capacity I will assist!

10:30am: A call comes in from a colleague in my team, she needs help with finding something on a file (it is likely that I will recall it coming in from my time as a secretary on that particular file and will have filed it!). If time allows we also use that call to catch up – one of the downsides to working from home is not seeing and speaking to those you would normally see daily.

11am: An email comes in from a colleague, “are you free to help”. Everyone who knows me, knows I will not say no. These types of emails will often be requests to help with computer programmes (I am a super user for our document management system), or simple queries such as how do I access a disc. If the request for help is from my team, it is most likely a request to assist with something such as updating a list of documents, requesting medical records, preparing letters of instruction to experts.

12noon: On a Friday, I meet with my supervisors via zoom. This is an opportunity for me to discuss any potential new enquiries I have met/spoken to since our last meeting. We discuss any possible issues that may arise with the particular enquiry, whether the injuries are of a value necessary for a personal injury claim, and also whether the value is of a higher value and perhaps should be passed to a colleague.

12-1pm: 1pm: Time for fuel! Having my husband at home has benefits although my waistline does not appreciate the sausage sandwiches, which are so easily accessible. It does ensure though that I take a break from the screen and think about something other than work for a little while. To be honest we tend to just sit and watch Bargain Hunt and guess whether the red or the blues will make a profit! Simple distraction!

4.30pm: A new client enquiry comes in. Within our department we take new enquiries on a triage system – I am third in that system. There are days where my other team members are either off or unavailable and so I will receive the call or email to speak with a new enquiry. We take brief details to be passed to our head of department, who allocates it to the appropriate person. Allocation takes place based on the experience of the lawyer and also the geographical location of the enquiry.

5pm: Our end of business is 5.15pm, so I tend to spend the last 15 minutes, looking over my timesheet for the day to ensure anything missed is time-recorded and also looking at my task list to ensure everything urgent has been dealt with and anything that needs carrying over is reset. I also check my calendar for the next day to ensure I am ready for what is in store tomorrow.

5.15pm: My “night” duties begin!

Seven Months on and I'm Still Juggling the Balls!

Unbelievably five months ago I wrote about the challenges faced working and adapting to “lockdown” because of COVID-19 and now we are somehow in October, and whilst currently we are avoiding “lockdown” we are still adapting to a new working world!

The challenge in the early months of COVID-19 was balancing work with home, whilst having everyone around, and ensuring the needs of clients could be met. A challenge I initially thought would be for a couple of weeks but, which quickly, turned into a couple of months. However, I coped and the new working way evolved. I started work earlier, I home schooled, I carried out motherly duties, hairdressing duties, housekeeper duties and progressed my cases as far as I could, with the courts granting stays on cases where steps to progress just could not be taken. Even defendant insurers were being reasonable!

Then came the next challenge…..the end of lockdown. Hooray! I thought, things will go back to normal…children in school, husband back to work, dad moved back to his own home and I can go back to work to progress my clients’ cases with them getting medical examinations and rehabilitation.

I waited, with excitement, for the ‘announcement’ from the managing partner for the date to return to the office. I was ready….I had seen my hairdresser so no longer looked like captain cavemen, my nails were done and I had bought a new pair of shoes. Yep I was ready!!

But, in the announcement the managing partner said he was not in a rush to get us all back to our desks, that we needed to wait to see what the impact on the virus would be when the schools re-opened, along with the bars and restaurants. Whilst I was disappointed I still thought it would be okay, I believed we’d know in a month or so that all was going to be fine and we’d go back to normal!

The services our firm offers are vast and often clients need their legal advice without delay. The plan to remain in the status quo, with some staff working at home and some staff working in the office, meant the cases could continue to be progressed. Should the worst happen, with someone working in the office receiving a positive test for COVID, those who’d been at home could swap places, meaning the vital services for our clients would continue.

Another few weeks on and the challenge continues. Unfortunately, COVID-19 does not appear to be going anywhere any time soon and so the business, and its people, have had to adapt to a new working world, but we have successfully found a way to do it. Clients are having rehabilitation such as counselling just through a virtual platform rather than a face to face, they can have their medical examinations for the reports required to progress their legal case, even if they too are on the virtual platform, their cases can be progressed and settled, virtual platforms can be used for court hearings, settlement meetings and meetings with barristers. I now have my own office in the spare room where my dad used to be, so when my boss rings he no longer can hear the washing machine in the background!

So seven months on and yes I’ve still got this! I still work at home but, can see clients either in person by appointment or virtually, at a time when it is convenient for them, even if it is outside “normal” office hours, whatever they used to be! I can deal with the court process so deadlines can be met and cases can still be settled. Whilst I personally very much hope the new virtual world will not take over completely, and there will be some return in the future to the old normal working world of one to one contact, it is a way of life that does work.

Whatever the new “normal” may turn out to be, one thing is for sure, I have got this! We are more adaptable than we think and I have a lovely new pair of shoes to wear!!

Law Amended so Co-habitees Can Claim Bereavement Damages

When a close relative dies in circumstances where a civil action can be brought, the law is governed by the Fatal Accidents Act 1976. This Act specifies the categories of relatives who can bring claims for bereavement damages and loss of financial dependency. The statute already allowed co-habitees to bring claims for financial dependency, however bereavement damages were only permitted for a surviving husband or wife or civil partner.

In the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others the Claimant Ms Smith and Mr Bulloch lived in the same household as man and wife for a period of 11 years prior to his death. They never married and it was accepted by the court that the relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.

Mr Bulloch died as a result of the admitted negligence of the Defendant Hospital Trusts. Because the Fatal Accidents Act did not cover a claim for bereavement damages for a co-habitee the Secretary of State for Justice was joined as a Defendant on the basis that the government had failed to enact law that was compatible with the European Convention on Human Rights. As a result of Ms Smith’s case the Judge found that the Fatal Accidents Act was incompatible with the European Convention by excluding two years plus co-habitees. However the Judge was unable to award damages leaving Ms Smith with a claim to the European Court of Human Rights.

I have long been a critic of the amount of the award of bereavement damages which is currently fixed by law at £15,120. The award falls towards the upper end of the bracket for simple fractures of the forearm. I am pleased, however, to note that following the Smith decision, parliament has just passed legislation, which will mean that co-habitees will be able to claim bereavement damages for claims arising from deaths from 6 October 2020.

It is necessary for the co-habitee partner to prove that they:

  • were living with the deceased in the same household immediately before the date of death; and
  • had been living with the deceased in the same household for at least two years before that date; and
  • were living during the whole of that period as the wife or husband or civil partner of the deceased.

Cases involving co-habiting partners can be complicated if there have been periods apart and each case also needs to be carefully considered on its facts. I hope that this change in law will assist bereaved partners to at least have some recognition of their bereavement in those circumstances.

If you need advice, please contact our personal injury team.

Injury Prevention Week 17-21 August 2020

As Lanyon Bowdler is an Association of Personal Injury Lawyers (APIL) accredited firm, I was pleased to hear that APIL had decided to expand their Injury Prevention awareness campaign to a full week, 17 - 21 August. With schools going back in the coming weeks across the country due to the easing of lockdown, I have carefully been thinking about road safety, in particular concerning children.

All of these considerations gave me pause for thought. I have been involved in many cases over my years in the personal injury department at Lanyon Bowdler and have seen many child pedestrians injured by drivers not paying attention or driving too fast.

The Highway Code Rule 204 states that: “The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders. It is particularly important to be aware of children, older and disabled people, and learner and inexperienced drivers and riders”.

Children are especially at risk during school pick up and leaving times, given their uniforms are generally of dark colour making them less visible when walking to or from school. A child is certainly less likely to be seen immediately by a driver than an adult would be.

Accidents involving pedestrians can cause injuries ranging from something minor to something more serious, leaving them with permanent physical and/or cognitive impairments and on occasion can be fatal. The Department for Transport conducted a review on child casualties in 2015 and concluded that children under 16 are the most vulnerable road users. This is due to them not being experienced and as well educated about using the road as most adults.

The charity, Brake, has also carried out research and in 2018 found that of 456 pedestrian deaths that year in the UK, 48 were children.

When faced with a personal injury claim, a Court will usually take the view that a vehicle is a lethal weapon, putting a high burden upon any driver when considering any reason they may put forward such as “they came from nowhere”. A Judge is often likely to take this as evidence that the driver was not sufficiently paying attention.

Even if a driver is found to be at fault insurers often allege contributory negligence against the pedestrian. Courts have to take into account the degree of blameworthiness and the contribution the negligence makes to the accident and injuries. A Court will assess the facts of each case to determine apportionment of liability between the parties. This is not easy to do between a child and a driver. This is where the burden is greater upon a driver of a “lethal weapon”.

Children are not adults and may not have the same level of self-control as an adult in dangerous situations. Case law indicates the level of contributory negligence increases as they get older.

Since no two cases are the same, this can be where the difficulty arises. Even though a Judge may find the defendant negligent for not keeping a proper lookout, they will also take into account the child’s age and actions, and apportion some blame to them as the Judge may be of the opinion that the child should have been aware of the dangers of crossing the road.

With the easing of lockdown I would urge parents to spend time during the remainder of the holidays in ensuring their precious little ones are up to speed on road safety by learning or being reminded of the Green Cross Code. I certainly will be. Prevention is better than cure as they say!

Brain Injury & the Impact of Coronavirus - Finding Support in Challenging Times

From the beginning of the coronavirus pandemic there has been drastic social change at an incredibly fast pace. Everyone, without exception, has faced their own struggles and it is clear that we are all still learning how to adapt to the ‘new normal’. There are certain groups of people however who are experiencing greater hardship than others. Amongst those are individuals with an acquired brain injury.

In response to the government’s guidance on managing the spread of coronavirus, many individuals made the decision to self-isolate and those, who are clinically extremely vulnerable, were advised to shield. Whilst these measures were put in place for the safety of all involved, self-isolation can have a detrimental effect on a person’s mental and physical wellbeing. Being confined to your home for long periods of time can cause feelings of loneliness, anxiety and frustration. In addition, the need to adjust behaviours and adhere to new rules and regulations can be a challenge.

For individuals who rely on practical or social support from carers and friends, the loss of assistance with essential activities such as shopping and cooking, placed them at a greater risk than the remainder of the population. It has been, and continues to be, a time of anxiety for them and their families.

According to a new study published by the charity Headway, more than half of brain injury survivors have lost access to rehabilitation services as a result of lockdown measures. The study showed that 64% of those living with the long-term effects of a brain injury reported a deterioration in their mental health as a result of the measures implemented to control the spread of coronavirus.

Headway UK provides a valuable source of up to date information and advice for individuals with an acquired brain injury and their families. Although a number of Headway groups and branches have had to suspend many of their face-to-face services in accordance with the government’s advice, they are going to great lengths to ensure that help remains available to those who rely on their services.

Headway’s helpline is open to anyone who requires support or information relating to brain injury and can offer reassurance and a friendly voice. These resources can be found online at Headway.org.uk.

How Many Balls Can you Juggle?

This was a question I asked myself when the government had no choice but to “lockdown” our country to protect us all from the COVID -19 virus – something that we will hopefully never have to experience in our lifetimes again.

Prior to the announcement Lanyon Bowdler had already started making plans about how we could ensure our clients needs could be met, and their legal requirements dealt with in the event our offices would need to close. One of the first objectives was to ensure as many staff as possible had remote access to allow them to work from home as though they were in the office. Friday 20 March was the big test day – the day when we were all to work from home and test to see if the system could cope – so glad I was not part of the IT team that day!

The system coped and so we were all ready to go when the lockdown announcement was made on 23 March. But what about the other issues we were all going to have to face? I confess this was a struggle for me – I like working, I like my work family who I spend the majority of my week with, and I enjoy working with clients and getting them the results they deserve. Suddenly I had to work at home, my daughter’s school had to close, my son and husband were furloughed and I had moved my Dad in, as he lives alone and I was worried about him – not to mention three dogs who were completely confused about how the quiet house they are used to having to themselves was suddenly full of five people, and who really did not have a clue about what was going on. It’s okay I thought, I’ve got this, it’s only for a couple of weeks!

So it begins…logging on early in the morning, before everyone gets up, wearing pyjamas and thinking that it is actually quite nice not to have to worry about combing your hair, putting your make up on (although I do brush my teeth!), reading through emails that may have been sent the evening before and setting what the days work will be, and ensuring that the files can be progressed as far as possible.

But then it starts, the issues of not working in your normal environment! Your family slowly appearing making their breakfast in the kitchen whilst you are on the telephone to a client, playing music on their phones without their headphones, asking you questions “what can I have to eat” “look at this piece of work I have done for school”, “Mum what’s the answer to this question” (thank god for Google!), or just being in your eye line, knowing that they are bored and they want you to try and entertain them whilst you are working on your computer, the dogs barking because a pigeon dared to wander into the garden whilst you are reading a complex document, the washing machine going on to its spin cycle just as your boss calls to check in and then… the worst of all….wanting to use the bathroom, but being worried that if you are away from your desk and someone calls they won’t believe that you are actually working!

I confess the first few weeks were stressful. Suddenly I am working in a bubble at home with only virtual contact with the outside world, I am a mother, a professional, a teacher, a cook, a cleaner, a counsellor, a doctor and even a hairdresser! I’m all of these things, but not actually feeling like myself.

So when it became apparent that the “couple of weeks” were more likely going to be a few months I took stock and realised that I can actually juggle all of these balls. I can be the teacher to support my daughter, the tea can be cooked at the end of the working day as it normally would be, the floors can be moped at the end of the day (even if its at 9pm in the evening), I can be positive in unprecedented times and it’s okay to use the bathroom even though you are working at home!

So 10 weeks or so in and I’ve got this. I can work at home and still do a good job for my clients and they can call and email me whenever they need to, I can still speak to new clients who need help, cases can be moved forwards and rehabilitation can be arranged, even if it has to be virtual and cases can still be settled. I can support my daughter with her schooling and I can keep house all at the same time. And best of all we have got less time in lockdown to go than we have already done.

Should I Drive if I am Concerned about my Eyesight?

In my role as a personal injury solicitor I specialise in assisting HGV drivers following accidents they have had while driving or while loading and unloading. Existing and previous clients will often call me with general legal queries they may have, and I am happy to assist wherever I can. One called recently about a story in the press, you have no doubt heard about, and what the correct thing to do is, if you are concerned about whether your eyesight is good enough to drive on a long journey.

The first thing I would advise to do in normal circumstances would be to arrange an eye test. As that is unlikely to be possible in the current climate I would suggest that if at all possible you should see if there was anyone else available, possibly your partner to drive instead of you. If this is not possible, I would advise strongly against driving a vehicle to test whether your vision was good enough, and certainly not on a 60 mile round trip; your vision is either good enough to drive or its not, and if it is not, you are putting your own and other’s lives at risk by driving.

The answer, as with most things driving related, lies in the Highway Code, which states that to drive you must be able to read a number plate from a distance of 20 metres. This can be done wearing glasses or contact lenses. So, if you can read a number plate, in daylight, from this distance, your vision is considered good enough to drive. This of course is done at the start of your driving test. I think we would all agree that this is a much safer option than driving 60 miles to test your vision.

Bereavement Damages Update

When a person dies as a result of negligence either following an accident or clinical negligence, a limited group of people are entitled to compensation under the Fatal Accidents Act 1976.

The bereavement award is currently limited to £12,980. Whilst no amount of compensation can make up for the loss of a loved one, it is a very low level award. The bereavement award of £12,980 was set in 2013 and has not been increased since. There have been calls for the government to review the award and to consider a substantial increase. However, the Ministry of Justice has rejected calls for a full consultation on bereavement damages stating that the award will be increased to reflect inflation since the previous increase in April 2013.

Defending its decision not to carry out a full review, the Ministry of Justice has stated that bereavement damages “are and were only ever intended to be a token payment to a limited group of people”.

The exact increase in the amount of bereavement damages that will be awarded under the Fatal Accidents Act in England and Wales is yet to be confirmed.

If you have any queries about a fatal injury claim please contact our specialist personal injury department.

Update - Proposed Reforms in Relation to Changes to the Small Claims Court Limit in Personal Injury Claims

In 2017 the government announced proposed reforms in relation to changes to the small claims court limit in personal injury claims from £1000 to £5000 in relation to road traffic accident claims and £2000 in other personal injury claims. In cases caught by this limit legal costs of assisting the claimant will not be recoverable from insurers. The proposed implementation date was April 2020. However the Ministry of Justice has announced the date is to be delayed until August 2020, having already been delayed from the original date of 2019.

I am not surprised that the implementation is being delayed again, as there is still little information available as to how exactly the system will work and how the unrepresented claimant will be expected to access it.

As the insurance industry wants claimants to be unrepresented in bringing their claims, any announcement of a further delay will be frustrating news.

I have always had concerns in relation to the proposed changes and the impact that they may have on claimants. In any personal injury claim a claimant has to prove negligence on the part of the defendant and causation with respect to their injuries in order to be successful with their claim and often there are complexities in respect of both of these hurdles. A claimant whose claim falls under the new limits proposed will find themselves faced with a professionally represented defendant insurer either without the support of legal advice and assistance or having to pay for it reducing their damages. Without any expert advice or assistance this may result in the chances of success being diminished or being under compensated.

The government needs to take their time in considering the reforms to ensure that personal injury victims are not deprived of access to justice under the reforms. The only way that the concerns can be alleviated is for the concerns around access to justice to be properly addressed and the precise rules to be made clear. If the government needs more time to do this, then so be it.

I would encourage anyone with a potential claim to start the process as soon as possible, before the changes bite and deprive claimants of recovering the cost of legal advice.

Proposed Reforms in Relation to Changes to the Small Claims Court Limit in Personal Injury Claims

In 2017 the government announced proposed reforms regarding changes to the small claims court limit in personal injury claims from £1000 to £5000 in relation to road traffic accident claims and £2000 in other personal injury claims. The reforms were to be put into place in April 2019. The Ministry of Justice then announced in May 2018 that the reforms had been delayed to ensure that concerns around access to justice were properly addressed; the latest news is that the reforms are set to take effect from April 2020.

How will the proposed reforms impact claimants?

I remain concerned whether or not all of the access to justice issues have been addressed. The proposed reforms mean that claimants who suffer injuries deemed to be worth less than £5000 in a road traffic accident and less than £2000 for other personal injury claims will not be able to recover legal costs. The injured claimant has to prove negligence on the part of the defendant and causation with respect to their injuries in order to be successful in their claim and in all types of personal injury claims there can be complexities in respect of both of these hurdles. A claimant, whose claim which falls under the new limits proposed, will find themselves faced with a professionally represented defendant insurer without the support of legal advice and assistance. Without any expert advice or assistance, this may result in the chances of success being diminished.

Why has there been a delay?

Part of the reason for the delay was to allow the courts service to develop an online claims system for use by a claimant but, even with the reforms, only now two months away, there is little information available as to how exactly the system will work and how the unrepresented claimant will be expected to access it.

I have been operating the Rapid Claims portal system for road traffic accident claims since 2010, and since 2013 for employers and public liability claims. Whilst the system is working well, it still requires legal skill and knowledge.

I am concerned that many personal injury victims will be deprived of access to justice under the reforms and these concerns are not helped by the lack of information available in relation to the precise rules.

The best advice that can be given at this stage to any person who has been injured and is thinking about pursuing a claim is to do so as soon as possible and certainly before April 2020.

If you are considering pursuing a personal injury claim, contact Lanyon Bowdler’s specialist personal injury team who will be happy to assist you.

Personal Injury and the Armed Forces

To serve in the Armed Forces is an honour and a privilege for many, but it can also be one of the most dangerous and demanding careers a person can undertake. As a result of the physical and mental demands of serving in the Armed Forces, injuries at work for military personnel are more common than most other industries. In this blog, I will set out the various ways in which we at Lanyon Bowdler can help injured personnel get the compensation they deserve.

Whilst working in the first seat of my training contract with the personal injury department, I met Louise Howard, the firm’s specialist solicitor in military law. Over the past few months I have been assisting Louise with various military cases, which has included meeting a number of former personnel who were looking for advice on whether they were entitled to compensation for injuries that they suffered during their time in service.

I have also been attending the local Armed Forces Operations Hub meetings, which take place on the first and third Monday of every month at Palmers’ Café in Shrewsbury. The group is made up of representatives from numerous charities and support groups including Help for Heroes, the local council, Combat Stress, Walking with the Wounded and West Mercia Police. These meetings allow for retired and serving personnel and their families to get together and network, as well as providing support and advice for those who need it.

How the personal injury department can help

In terms of the support we can provide at Lanyon Bowdler for injuries suffered in the Armed Forces, there are two main areas of claim which we can assist with:

1. Negligence cases against the Ministry of Defence (MoD) as an employer and as a provider of medical services, including physical and psychiatric injury.

The Ministry of Defence is bound by the same rules as any other employer and is therefore responsible for providing a safe working environment, underpinned by sound employment procedures, for all of its employees. Whilst it is accepted that serving in hostile situations brings a greater element of risk than your typical office job, there are still legal requirements which the MoD need to follow in order to mitigate the risk of injury as far as they are possible.

If they fall below these requirements, it may be possible for an injured service person to bring a negligence claim against them.

2. Assistance with Armed Forces Compensation Scheme claims, both initial applications, requests for review and tribunal appeals.

The Armed Forces Compensation Scheme (AFCS) provides compensation for injury, illness or death caused whilst serving in the Armed Forces, other than in combat. A person claiming under the scheme has no obligation to establish fault, meaning that if the injury was caused by serving in the Armed Forces, and the requisite eligibility criteria are met, then that person is entitled to make an AFCS claim.

Other support

As a firm we are able to offer a range of support for military personnel through our extensive legal expertise. This can include the drafting of wills through our private client team, the buying and selling of homes through our residential property team and dealing with relationship and child arrangement issues through our family law team to name just a few. For more information on any of these matters, please feel free to contact us at Lanyon Bowdler and you will be put through to a member of the appropriate department who will be able to advise you from there.

Relationships after Brain Injury

Relationships are a very important and intimate part of life. They give us a sense of security and wellbeing, and contribute towards our sense of self-identity. It is often our closest relationships that provide the vital emotional and practical support needed when hardships are faced, such as when a brain injury occurs.

For some people, the emotional, behavioural, physical and cognitive changes after brain injury can have an impact on existing and future relationships. There are a number of ways in which this can happen and a number of different outcomes. Some relationships may strengthen, whereas others may become strained over time or even completely break down.

Continuing support from friends can help the survivor feel more positive

Brain injury can cause changes in the way a person thinks, feels and behaves and can also affect their physical ability. This can sometimes affect the relationships they have with their friends. Many people will not know what a brain injury is and how it can impact someone, and therefore may not be able to understand how and why their friend has changed.

Friends might also assume that once the survivor is out of hospital, they will be ‘back to normal’. However, for many survivors the emotional, cognitive and behavioural effects only become noticeable once they have returned home. The survivor might need time to adjust to their new circumstances, and friends might need to adjust accordingly as well. Learning about the effects of brain injury and identifying ways of offering support can help friends during this period of adjustment.

Continuing support and care from friends can also help the survivor to feel more positive about themselves and their circumstances, which can have a positive impact on their overall recovery and general wellbeing. In turn, this can have a positive impact on the friendship and it can become possible to move forward creating new memories together.

Ways to support your friend

1. Learn about brain injury

  • Read about brain injury and speak to your friend about what they are personally experiencing.
  • Remember that brain injury symptoms can fluctuate on a day-to-day basis, so while your friend may appear to be well and functioning on one day, they might struggle the next.
  • Learn about different coping strategies to help your friend with managing the effects of their injury.

2. Encourage your friend to seek support

  • Encourage your friend to contact their nearest Headway group or branch for support in their local area.
  • If you suspect your friend is feeling depressed, gently encourage them to talk about how they are feeling and to seek support, either from yourself, other friends or professional services.
  • If your friend is experiencing ongoing problems from their injury which are affecting their quality of life, encourage them to seek support from their GP or local adult social care team.

3. Look out for your friend

  • Ask after your friend and offer to help out where needed. At the same time, respect their independence and do not assume that they cannot do things by themselves, as many survivors learn ways of adapting to their injury over time.
  • If you are concerned that your friend lacks insight, and you notice anything which causes you to be concerned for their safety, consider speaking to their partner or other family members.
  • If appropriate, attend rehabilitation sessions with your friend and ask the rehabilitation team if there are any activities that you can help your friend with.

4. Offer practical support

  • If your friend has young children, offer to occasionally look after them for a few hours.
  • Offer to help with tasks such as grocery shopping, travelling, cooking or form-filling.
  • When buying gifts for your friend, consider practical things that can help them on a regular basis, such as a journal or personal organiser if they have memory problems.

5. Out and about

  • Fatigue can be a particular issue during or after outings. Try to therefore keep outings short, and encourage your friend to rest beforehand and afterwards.
  • If your friend struggles in busy, noisy environments, consider going somewhere quieter or visiting one another’s house.
  • While you cannot tell your friend whether or not they can drink, do remind them that alcohol can worsen the effects of their injury, especially behavioural effects.
  • Ask your friend whether they would like you to explain that they have had a brain injury to others when you are out.
  • Try to set a particular day and time for activities you do together on a regular basis, as this can be helpful if your friend has memory problems or difficulties with organising and planning.
  • Try not to take offence if your friend cancels on a plan at the last minute or does not socialise as much as they did before the injury.
  • Try to include your friend in activities that you do as a group. You could explore new or modified activities that are safe and enjoyable for everyone, including the survivor.

If you need support with a brain injury claim, please contact Lanyon Bowdler’s team of brain injury specialists who are experienced at handling serious cases.

The Movement Centre - Loss of NHS Funding

The Movement Centre is a UK charity and specialist treatment centre. They support children living with movement disabilities and their families.

They provide a specialist therapy called Targeted Training to help children gain movement control. Targeted Training therapy can enable children to develop new skills and become far more independent.

Through a course of Targeted Training therapy children can gain head control, so they can interact with their family; it can help children develop the skills to sit unaided, so that they can play with their friends. For some children it can enable them to walk!

For more information about the Movement Centre visit their website.

Sadly, The Movement Centre has recently lost all NHS funding. Last year NHS funding paid for 20 out 74 patients’ treatment. Funding from the NHS has been in decline over many years, but the complete withdrawal can hit a charity hard. Read the full story in the Shropshire Star here.

Fortunately, The Movement Centre is working harder than ever at fundraising to ensure they can keep funding treatment for children with movement difficulties. There are so many success stories, some of which you can see by visiting their website or their social media pages.

As a Corporate Partner of The Movement Centre, Lanyon Bowdler is committed to continuing to assist them. The Movement Centre is also one of the charities that we have personally supported having completed fundraising events such as a skydive, a chocolate ban and the fastest zip wire, along with taking part in events run by The Movement Centre such as their annual 5k and virtual walk. There are a number of activities to participate in.

Now more than ever, The Movement Centre needs public support in order to raise the money to continue the amazing work that they do. Current chair of Trustees, David Vicary has set up an emergency fund via a Just Giving page to try and raise some of the money lost from the NHS cuts. He will also be running the Lake Vyrnwy Half Marathon this September in aid of The Movement Centre. To donate to The Movement Centre emergency fund please follow this link: https://www.justgiving.com/fundraising/davidvicary

You can also hold your own fundraising events or take part in any of the events run by The Movement Centre which can be found on their website. They are grateful for any support that can be given.

Lanyon Bowdler Scoops Top Prize for Best Military Window Display

During the lead up to Armed Forces Day, Shropshire Council encouraged businesses in Shrewsbury to decorate their windows with a military theme for a chance to win a tour of RAF Shawbury for up to 12 staff members.

As members of the Armed Forces Covenant, I was really enthused for us to take part and engaged local artist Sali Nixon to come to paint the windows of our Shrewsbury head office. Find more information and photos in Louise Howard’s blog.

I had been inspired by Sali’s work which I had seen on my previous visits to The Movement Centre, who are one of our supported charities and are based in Oswestry. The Movement Centre provides specialist treatment to support children and their families, across the UK who are living with movement disabilities.

On 31 July 2019 we were delighted to receive a visit from Warrant Officer Nick Williams of RAF Shawbury, bearing the good news of our winning entry. Nick was able to meet and congratulate some of the team at Lanyon Bowdler and got to witness first-hand, Sali’s fantastic artwork.

We very much look forward to enjoying our prize and visiting RAF Shawbury in the near future.

Photo from left to right; Sophie Davies, Brian Evans, Dawn Humphries, Nick Williams, Sali Nixon and Sean McCarthy.

Lanyon Bowdler is a leading law firm in Shropshire, Herefordshire and North Wales, and have a team of specialist lawyers with experience of complex military cases. If you have been injured whilst serving with the Armed Forces, and think you may be entitled to compensation, contact our team of personal injury solicitors.

The Discount Rate

On 15 July 2019 the Lord Chancellor announced a new discount rate of -0.25% for all personal injury and clinical negligence claims. The Association of British Insurers (ABI) was swift in its criticism of the rate and renewed existing arguments that the new rate would lead to a rise in insurance premiums and pressure on public services such as the NHS, which would have knock on effects on the taxpayer.

The aim of compensation

As we have explained in previous blogs, the aim of compensation in a clinical negligence case is to put a claimant in as close to the position that they would have been in, but for the negligence. This is not always possible, for example in a case where a child has suffered a brain injury in the form of cerebral palsy, the compensation is used to ensure that they are able to achieve their full potential during their lifetime, by ensuring that they can afford the care and support they need for life.

What is the discount rate?

Generally, all compensation payments consist of at least some element of a lump sum, which is awarded for past and future losses. However, the future loss element is discounted at the point of payment to reflect the fact that the compensation could be invested by the claimant and they could actually make money on it. If it were not discounted, this could be unfair since in reality the claimant could be overcompensated for their loss. The idea of discounting is therefore that when the claimant invests their money, the only money they will make is the amount of compensation that was deducted when they received it.

Until 2017, the discount rate was set at 2.5%; the assumption being that interest could be earned at that rate. For example, if a man aged 37 at the time of the negligence sustained a loss of £30,000 a year that would continue until he reached the age of 65, the discount rate would be applied and his claim would be for £606,300. We would not simply multiply his loss by the 28 year period and then claim back £840,000 because the law assumed he would earn a good rate of interest during that 28 years.

Why was it unfair?

Unsurprisingly, defendant insurers and the NHS were happy with this arrangement as they did not have to pay out as much in compensation as the claimant deserved. They happily ignored the fact that, in reality, it is almost impossible for a claimant to earn the necessary rate of interest to make up the shortfall in their compensation. This meant that claimants were being undercompensated.

In 2017, the government recognised this and implemented a new discount rate of -0.75%. This meant the loss of earnings claim in the above scenario changed to £935,100. It recognised that claimants would not be able to earn interest on their compensation. It also provided an advance top-up of their compensation to reflect the fact that over time the value of their money would actually go down as the cost of living goes up (inflation), as a further safeguard against under compensation.

However, defendants were unhappy with this as it meant they had to pay out more in compensation. They argued that claimants were now being overcompensated and that this would increase the burden on taxpayers where the NHS was paying and insurance premiums where insurers had to pay out.

The government accepted that a closer review was required and set the groundwork for this in the Civil Liability Bill 2018. It was then a waiting game as to what the new rate would be.

The new discount rate

In the wake of massive cuts in legal aid and other changes in the way in which clinical negligence claims are funded (which it is fair to say did not go the claimant’s way), claimant solicitors were not optimistic about what the new rate would be.

However, the new discount rate of -0.25% announced by the Lord Chancellor on 15 July 2019 was welcomed as it still reflected a fair and balanced approach to the calculation of compensation. The ABI however is not happy and has denounced the rate as unfair. They argue that higher compensation pay outs will mean higher premiums and taxes, but appear not to appreciate that the gentleman above would now only receive £870,000 for his lost earnings, which is less than before the rate changed and is much more in keeping with his actual loss.

Amidst all of the figures which fly about in the context of negligence claims, it is to be applauded that the government has recognised that there are real victims behind the figures in the media, who deserve just compensation for their injuries. It is hoped that this recognition will continue when the discount rate is reviewed again in five years’ time.

In the meantime, it is unfortunate that out of something positive has come more scaremongering and criticism of claimants and their solicitors. We agree that insurers and the NHS should not have to pay out huge sums in compensation, but not because of the cost of it. We agree because cases of negligence should not be happening and this is why we campaign for lessons to be learned from mistakes that have been made to prevent the same from happening to someone else in the future.

Criminal Injuries Compensation Scheme Abolishment of “Same Roof Rule”

In 1964 the Criminal Injuries Compensation Scheme was introduced to compensate innocent victims for crimes of violence. However, victims of violent crimes, which took place before 1979, were unable to apply for compensation under the Criminal Injuries Compensation Scheme if they lived with their attacker as members of the same family at the time of the incident.

Recently, the “same roof rule” was successfully challenged in the Court of Appeal and therefore parliament subsequently removed this rule from the scheme.

As a result, victims of violent crimes which took place before 1979, even if they were the victim of an assault by someone with whom they were living, can now apply for compensation to the Criminal Injuries Compensation Authority. The new legislation, which abolished the so called “same roof rule” for victims of violent crime, came into force on 13 June 2019. Victims will have two years from that date to apply, although the CICA may be able to extend this two year limit in certain circumstances.

If you were the victim of a violent crime but were previously prevented from making an application for compensation and now wish to apply, you can contact a member of our personal injury team who will be happy to help you. Even if you have previously claimed and your application for compensation was rejected because of the “same roof rule”, you can now resubmit your claim to the CICA.

Any claim should be submitted or resubmitted as soon as possible.

Serious Injury Guide

I was delighted to have the opportunity to attend the Serious Injury Guide stakeholder workshop following Lanyon Bowdler’s signatory to the same. The Serious Injury Guide is a best practice guide designed to assist litigants conducting personal injury cases. It particularly applies to complex injury cases where the potential value of the claim is over £250,000 and is likely to involve a claim with an element of future continuing loss.

The attention is to help parties resolve issues whilst putting the claimant at the centre of the process. It aims to meet the reasonable needs of an injured claimant and helps the parties to work together, to resolve the case by co-operation and narrowing the issues.

The Main Objectives of the Guide are to:

  • Resolve liability as quickly as possible

  • Provide the claimant with early access to rehabilitation to maximise their recovery

  • Resolve costs in an appropriate and proportionate manner

  • Resolve the whole claim within an appropriate agreed time frame and;

  • Encourage an environment of mutual trust, transparency and collaboration

Claimants are encouraged to give early notification within 14 days of the claim to the defendant and their insurers, particularly where liability can be conceded.

Interestingly, a full formal letter of claim is not expected in the first instance; just an initial view for the purposes of understanding the nature of the claim, the severity of the injuries and to ensure that the case is allocated to the appropriate level of file handler.

Having made first contact the defendants should acknowledge a notification letter. Then within 28 days there is encouragement for the insurer to contact the solicitors. It is important to establish lines of communication and to consider the following:

  • Liability

  • Update on injuries

  • Rehabilitation

  • Potential defendants and;

  • Agreement as to when further discussions will be held

What helps Efficient Case Progression?

Case planning or pathway meetings enable there to be constructive collaboration and dialogue, which allows efficient case progression with an agreed action plan. It not only looks at liability issues, but also focuses on rehabilitation quantum evidence and overall settlement. Where possible, a longstop date for a joint settlement meeting is provided.

In terms of liability, there is a commitment for the defendant to finalise liability investigations within a maximum of six months from the date of first notification. It is not possible to identify barriers that stop liability and see whether those issues can be resolved at an early time, or to look at alternative dispute resolution or mediation in place of a trial. There is a commitment to obtaining an early interim payment of both payments on account for the claimant, and payment of disbursements in addition to base costs relating to liability once resolved. This helps clients in commercially funding their claims, which in complex cases can take a considerable time to settle.

In my experience, obtaining early rehabilitation for clients is effective by the appointment of an independent clinical case manager who can assist with the client’s needs. This coupled with a willingness to make early and continuing interim payments, help put the claimant in a better position in terms of their rehabilitation.

There is commitment by both parties to obtain and disclose liability reports, police reports and accident report documents. On the cases that I have dealt with, we have arranged for there to be ongoing, rolling disclosure of medical notes, records and documents relating to past loss. Case management and treatment records should also be included to provide the defendants with the possibility of reviewing the claim in early course - even if medical reports have not yet been obtained. Collaboration and case planning, early interim payments, maximising rehabilitation, identifying early issues of dispute and providing a flexible approach to resolution, avoid the need for a contentious background to litigation. What’s more, regular updates between the parties and increased communication are key.

If there are multiple defendants, the identity of a co-ordinating party will try to avoid the duplication of correspondence. There is also a continued expectation that the defendants will agree to a co-ordinating defendant as soon as possible. For me, it is most important that regular ongoing dialogue takes place between the parties, until the next stage required in the case. Any material change of circumstances should be notified immediately e.g. loss of capacity, significant material deterioration, change in care regime costs and risk of loss of employment.

Early rehabilitation

For the claimant, the most important point (and the overriding aim of the guide) is to have access to early rehabilitation at the earliest practical possibility. It also includes a consultation with the claimant, the claimant’s family and looking for early intervention, rehab or medical treatment that would improve the present or long term situation. The defendants should reply promptly to any request for rehabilitation within 21 days. If either party feels that the opposing handler is not acting in accordance with the spirit of the guide, the first step must be to exhaust attempts to resolve points of concern. Alternatively, there is an escalation procedure and parties are expected to adhere to the objectives.

Ongoing dialogue is fundamental to the process and the guide covers early neutral evaluation, joint settlement meetings, mediation, arbitration or a stocktake/cooling off period, before the parties re-engage. On a commercial basis the offer of rolling costs, payment of disbursements and full interim payments assist all parties in terms of providing better service - all of which help to make the litigation process a much easier experience. For more information about the guide, please click here.

Lanyon Bowlder are one of Shropshire & Herefordshire's Leading Serious Injury Claim Solicitors Firms, If you or a loved one have been injured, talk to our team today.

Local Artist Decorates our Windows for Shropshire Council's Competition for Armed Forces' Celebrations

As a signatory of the Armed Forces Community Covenant we are always looking for ways to demonstrate our support to the armed forces community. When Shropshire Council announced a competition for local businesses to decorate their windows for armed forces celebrations, we were keen to be involved.

We invited local artist, Sali Nixon, to our Shrewsbury office on 3 July to decorate windows in order to take part in Shropshire Council’s competition. Sali created the window displays in the sunshine and did a fantastic job. The silhouette images are displayed on the entrance doors at our head office in Shrewsbury and on meeting room windows, incorporating images of service personnel.

Lanyon Bowdler is proud to have signed the Armed Forces Covenant, a scheme which pledges to help support serving and retired armed forces personnel and their families. As a full service law firm we have been able to demonstrate our commitment to the armed forces community by offering a full range of legal services and employment opportunities.

I also participate in a local operations group, which is a fantastic group brought together by Shropshire Council. The group meets once a month and case manages veteran’s needs post service. It is a great opportunity to bring together support for military personnel, both in terms of the public, private and charity sectors. This has now grown to encompass an outreach event twice a month at Palmers Café in Shrewsbury, where service personnel, veterans and their families can access help and support. The outreach event occurs on the first and third Monday of every month, more details here.

Winners of the best display will be announced in the next week or two, and we have members of staff already vying for the chance to tour the base at Shawbury, to fire a rifle or pistol on one of the ranges, and to have a close up look at a helicopter and a red hawk.

Working Full Time and Studying for a Law Degree

If someone had said to me, five years from now you will complete your law degree whilst holding down a full time job and bringing up three young children with my husband, I would have laughed and said no chance. I honestly did not expect to get through the first year let alone five years.

It turns out however, with a fully supportive husband and employer I am now thankfully at the end and on course to obtain a high 2:2. On 1 March, I actually found out I gained a 2:1, I am over the moon to have achieved this and not to have taken any resits!

Good background

Having worked for Neil Lorimer, the head of the personal injury department, since 2010, working on high level injury claims where clients have suffered serious multiple injuries including brain injury, spinal injury and amputees, this has given me a good background on aspects needed in a good lawyer.

Since 2016 I have worked for Debbie Humphries as her legal assistant. This has furthered my knowledge and experience in dealing with clients, barristers and experts. Each case is unique and requires clear communication with clients to enable them to understand the legal process they are going through, and also with barristers and experts where organising conferences or instructions.

My role consists of duties such as obtaining and collating documents for a claimants claim such as medical records, police reports and other relevant documents. I also meet with witnesses and prepare witness statements, as well as preparing draft instructions to counsel and experts together with collating the relevant documents for them. These tasks require me to consider the facts of each case, setting out a descriptive background detailing the issues to be considered. All of these duties have given me experience to pull from when completing assignments and exams, as I have been able to put myself in the shoes of a lawyer advising clients.

Along with other aspects of my role I have found that being a full time worker in a law firm, whilst studying a law degree, has been invaluable. Each and every one of my work colleagues have been pestered for their views on whatever subject I happen to have been studying at the time. Similarly every trainee solicitor passing through the department, when completing the seat with personal injury, has been helpful in giving their advice on both subjects I was studying and also on training contracts and, more importantly, the interviews for a training contract. They all have my undoubted thanks.

Plan and organise time

Working whilst studying a law degree has taught me to plan and organise my time. Remembering to allow time to be with my family and time to relax, but also planning in study time around exams to coincide with work.

I would thoroughly advise anyone thinking of studying whilst working, it can be done! If you are lucky enough to be working in a law firm whilst studying, use this to your advantage and speak with your colleagues, you will find that many of them are more than happy to help and advise. Lanyon Bowdler has been instrumental in aiding me to achieve my goal and have given me the flexibility to work and study whilst also having the balance with family life.

European Law Rescues Victim of Uninsured Driver

The High Court recently ruled, in the case of Lewis v Tindale and MIB, that the catastrophically injured victim of an uninsured driver, injured in an accident on private land, should be compensated by the Motor Insurers Bureau (MIB). The MIB are a body who compensate victims of uninsured or untraced drivers under the terms of legal agreements.

Whilst looking for somewhere to fish the claimant was found on farmland owned by the first defendant. The first defendant chased the claimant across several fields in his 4x4. Eventually the first defendant drove through a fence and, in consequence, ran the claimant over. This caused a catastrophic spinal cord injury and left the claimant tetraplegic. The first defendant did not have insurance, and the claim was also brought against the MIB. The MIB denied liability and argued that because they were only liable to compensate for accidents “on a road or other public place” and not on private land they were not liable. In 2014 the European Court of Justice had ruled in the case of VNUK that EU Law required accidents on private land, caused by vehicles, to be covered. It was not clear, however, how the decision of the European Court could be enforced through the English Courts.

An important finding was made that the MIB was an emanation of the state and that the European Directive which makes motor insurance compulsory, can be relied upon directly against the MIB. The Court found, applying the principles of the case of VNUK, that the MIB was required to compensate Mr Lewis under the European Directive.

European Law has benefited an innocent victim of a road traffic accident, who would otherwise have gone uncompensated for his life-changing injuries, and is an example of a law that will need to be carefully considered as part of the withdrawal from the EU. There are countless other laws which require due consideration.

Visit to Worcestershire Headway

Princess Anne recently visited Worcestershire Headway, a charity that helps people who have suffered brain injuries, and I was fortunate enough to be invited along. The event was meant to have been in March, but was postponed due to the ‘Beast from the East’, and was to mark the opening of a new kitchen.

The Princess Royal was shown around the building and met many of their clients, as well as those who help to raise funds for Headway. She took the time to speak with many of them individually about their stories and how they had been helped by Headway.

I spent time talking to several of the volunteers who go in each week to help the clients. They put on practical classes such as cooking, art and woodwork and many of the items made by clients were on display; a bird house, which had been made by one of the clients, was given to Princess Anne as a gift.

A few weeks before Princess Anne’s visit, I was shown around their premises by Kathryn Davies, the Chief Executive of Headway Worcestershire. It was fascinating to hear about the work they do and to meet some of their clients, many of which have been using the service for a number of years.

As is the case with many charities their funding has been cut significantly in the last few years and they now rely heavily on their own fundraising efforts. The visit from Princess Anne was a real boost to their profile and should help to raise awareness of the wonderful work that they do.

The Armed Forces Covenant in Shropshire: Supporting our Armed Forces

Earlier this year we were delighted to sign the Armed Forces Covenant at RAF Shawbury to demonstrate the firm’s commitment to help those who have served our country. As a leading law firm in Shropshire, we are proud to offer our services to the Operations Group for the Armed Forces Community Covenant in a county that goes beyond and above to support those that have served.

*Image courtesy of the Ministry of Defence more here

The Armed Forces Covenant is a promise between the nation, government and armed forces themselves to help members of the armed forces community by making sure they have the same access to government and commercial services as well as access to products that other citizens have. This includes services such as help in finding a home, starting a new career and financial assistance. The Covenant is there to help any member of the armed forces including family members, reservists and the bereaved. As of this year, there are 2000 signatories to the Covenant including businesses of all sizes, charities, communities, local councils, central government and cadet forces who all honour their commitment to help and support the armed forces.

Lanyon Bowdler: Our Pledge

As a full service firm, we know that armed forces personnel can be confronted with issues that can affect their day to day life. We are proud to offer our services to manage and help those who need our help most by offering our specialist advice. Signing the Armed Forces Covenant lets us give practical help back to those who have served their country and to their families.

Shropshire Council: Their Commitment

Shropshire Council has been leading the way in how practical support can be put in place for veterans within Shropshire and beyond. Since May 2017 the council have been leading an operations group that brings together members of Shropshire council, SSAFA, Help for Heroes, Combat Stress, Royal British Legion, local military regiments, Enable, Walking with the Wounded, Confide, Veterans UK, representatives from West Mercia Constabulary, Probation Service and Lanyon Bowdler.

We are incredibly proud to be part of this dedicated group that meets each month. Through the group we offer legal support and practical advice to veterans and service personnel. Involvement has also meant that we can ensure that we signpost and refer existing veteran clients to the correct support and offer a more holistic service to such clients.
Shropshire Council’s initiative in setting up the operation group and bringing together support for veterans is a first and has been very successful. The Operations group enables those that support the armed forces to work together to ensure the right support is put in place for veterans. The council are very pleased to be able to take this further with the creation of a hub within Shrewsbury town centre where veterans can access the broad range of support offered by the operations group. Lanyon Bowdler will be offering access to a legal advice at the hub each month.

The Next Step

Shropshire Council will shortly be finalising plans for the location of the hub, once up and running this will provide a one stop shop for anyone seeking further information and support from Shropshire Council and other local signatories to the Covenant, such as Lanyon Bowdler. The Council are now looking for two friendly and hospitable individuals with good communication skills to head up the hub as an Armed Forces Covenant Project Support Officer and an Armed Forces Veterans Co-ordinator. Their roles will include promotion and awareness of the hub’s services as well as developing and delivering high customer service.

Details of the roles can be found here: https://bit.ly/1SAIgZ5

We look forward to working with the individuals recruited for the roles and continuing to support the Armed Forces within Shropshire.

Sexual Abuse Is Never Acceptable

In England and Wales there are 85,000 female rape victims and 12,000 male victims every year; shockingly only 15% of those victims can face reporting their abuse to the police (figures based on statistics from Rape Crisis England and Wales 2016-17). There were 202,666 help line calls to Rape Crisis Centres for the year 2016-17, amounting to 4,000 per week which is a 16% increase on the figures for 2015-16. In addition 42% were adult survivors of child sexual abuse and, where the age was known, 2651 were aged 15 years or under.

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Warning signs ignored

Unfortunately abuse continues to be heard on the news on a regular basis and more so recently, with the staggering figures of over 1,000 girls allegedly being abused over a 40 year period in Telford. I have read the recent report on the level of abuse in Telford; I found the results to be extremely shocking and disappointing. The report suggests people in power were aware but failed to act or chose not to see the warning signs, which if found to be true is absolutely disgusting and outrageous.

As a senior litigation assistant I know more than most about the immense courage and strength it takes for a victim to firstly, face up to what has happened to them and to then come forward and speak. Often, as the recent reports seem to suggest, the victims become trapped in a cycle of abuse, groomed with gifts or threats of harm to their family members, which means they may endure many years of suffering in silence. The recent reports into the abuse in Telford suggest that some victims had attempted to come forward, but they were not believed or supported. If they find such courage and then are not believed or supported, I question how the circle can ever be broken.

Mistakes need to be identified

I believe a stand needs to be taken to show that any type of sexual abuse, rape or assault, on a child or otherwise, is a crime that will be punished. The Telford and Wrekin Councillor should unite around plans to hear victims of child sexual abuse as part of a national inquiry.

Questions need answers in particular; how had this been happening for such a prolonged period of time? Why were some of the girls allowed, sometimes on repeated occasions, to be administered with the morning after pill without questions or investigations? How could they have abortions and not be supported in such a way that they could speak out about their situations?

These are serious questions which require serious responses. For many of the victims it is too late for blame but the mistakes need to be identified to ensure that this can never happen again. It will also encourage current victims to come forward.

Support for victims is needed

Abuse cannot be fixed like a broken bone, and suffering for the victim continues long after the abuse has stopped. It can impact on all areas of a victim’s life, affecting their ability to trust people, form relationships and even being capable of holding down employment.

It is everyone’s responsibility to look out for vulnerable people in our community, but this has to be supported with the bodies in power such as the police. It is never right for anyone, of any age, race, colour or religion to be forced into any sort of sexual act.

It’s important the victims of abuse are offered the support they need, not only in getting justice for what they have been through, but through the appropriate organisations who are able to offer the emotional and practical support they are going to need to get their lives back on track. Victim Support and AXIS Counselling Service have experience in helping victims and can offer practical support.

Surviving Spinal Injury – The Journey

After the success of the Brain Injury Conference in 2016, Lanyon Bowdler hosted another event entitled Surviving Spinal Injury – The Journey which was held at the Robert Jones and Agnes Hunt Hospital, Oswestry.

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Arriving to refreshments, the day of informative talks started off with a welcome from host, and partner at Lanyon Bowdler, Dawn Humphries followed by a brief a history of the development of spinal injury services in from Professor Waigh El-Masri. One of Professor El-Masri’s many achievements was to found and set up Transhouse which is an organisation that offers transitional housing for patients with spinal cord injuries (SCI) and provides them with the skills they need to live a more independent life after being in hospital. We were lucky enough to hear from Transhouse’s CEO Fae Dromgool later in the day.

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A moving talk was given by David Chapple, Trustee of Horatio’s Garden. Mr Chapple set up the charity, which creates beautiful and accessible gardens in NHS spinal centres across the country, in memory of his son Horatio. The RJAH look forward to having a garden designed by the charity at the hospital.
The morning programme took on a clinical angle regarding spinal injuries with talks from Dr Clive Bezzina, who spoke about rehabilitation, Mr Naveen Kumar gave a most thorough and in-depth talk on the management of spinal cord injuries. Mr Aheed Osman provided a very detailed presentation on the recent advances in SCI management, covering worldwide research projects.

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Michelle Bunyan provided an informative overview of case management and how it requires a specialist approach when a client has a spinal injury. Jonathan Fogerty, Trustee of the charity SPIRIT spoke about the charity’s international reach which aims to improve the treatment and care of those with SCI, having sustained a SCI himself in his teenage years.

After lunch, host and associate at Lanyon Bowdler, Emma Broomfield welcomed Fae Dromgool from Transhouse to start the afternoon of talks.

Attendees were captivated by the story of Yu Guo who is also a former patient of the RJAH and whose case was successfully won by Lanyon Bowdler’s Dawn Humphries and No5 Chambers’ barrister Chris Bright QC. After a complicated case involving a dancing move, Dawn and Chris secured her a settlement to provide for her future care. Yu Guo took the time to thank Dawn and Chris for all their hard work and expressed how pleased she was with the way they conducted her case.

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Attendees were further treated to a talk from another former RJAH patient, guest speaker Darren Edwards. After being involved in a serious fall on 6 August 2016, whilst rock climbing in North Wales, Darren was left paralysed from the chest down. He shared his journey from being airlifted to Stoke hospital, to founding the charity Strength Through Adversity, which aims to provide opportunities for disabled people in Shropshire to take part in sporting activities.

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A day of enlightening, educational and at times both emotional and entertaining talks, was rounded off by a Q&A chaired by Mr Chowdhury.

I think I can say on behalf of all who attended that the day was a great success and provided an important insight into the legal, medical and practical help that exists for those with spinal injuries. A particular highlight was the demonstration of a robotic walking aid and an insight into how these can assist those with spinal injuries by Stephen Ruffle of ReWalk Robotics.

London Landmarks Half Marathon

I was delighted and privileged to be able to take part in the inaugural London Landmarks Half Marathon on Sunday 25 March 2018, fundraising in aid of Horatio’s Gardens as a supporting event following on from our enormously successful Spinal Injuries conference, held at the Midlands Spinal Injuries Unit at the Robert Jones and Agnes Hunt Hospital in Oswestry.

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As an enthusiastic runner it was well within my abilities, with the right amount of training in place, to do the distance and comfortably enjoy the day. However, fate conspired against me, with bouts of more snow than I have ever known, a sprained back and glass in my foot, all of which scuppered my training plans somewhat and left me rather less prepared than any sane person would wish.

So a little worried, and very well bandaged up, I proudly put on my Horatios’ vest. (I was also very relieved that the streets of the Metropolis were not still thick with snow.) As I limped down from Buckingham Palace and down the Mall, I was very apprehensive and a wee bit nervous, but was soon engulfed into the swathes of excited runners. Over 10,000 of us lined up at the start, and I have to say the organisation and support from the crowd were phenomenal.

The whole of central London was closed to traffic for the race. The streets were literally lined with so many many supporters, bands, charities and event organisers dressed in bowler hats, as suffragettes, gladiators, Victorians all highlighting the history of the London, together with a random man riding a pink unicorn, ( who finished well ahead of me!). It was just incredible to be running in such a terrifically joyous enthusiastic atmosphere.

Despite wondering if I could actually complete the course, I passed Trafalgar, St Pauls, the Royal Courts of Justice (as a lawyer I had to take a selfie here), the Tower of London, then back up The Embankment, before cornering with a sprint finish to Downing Street, all with tremulous applause who needs to do a full marathon?!!

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Finish it I did, I was inspired by the challenges some of my spinal injured clients face on a daily basis with such strength and fortitude!! Not my fastest run but certainly the most rewarding and memorable event I have ever done.

I am really delighted that so many people sponsored me, thank you all so much, those funds will go to such a worthy cause.

It was a fantastic experience and I am truly honoured to have done it in Hortatio’s memory, here is one final photo of me proudly showing off my medal.

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Occupational Stress at Work - A Star Wars Story

When The Force Awakens was due to come out, I posted a blog about whether Han Solo could bring a successful personal injury case following the events of Star Wars: The Empire Strikes Back.

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Since that blog I have now qualified as a solicitor in our personal injury department and couldn’t let the latest Star Wars film pass without a new blog. I thought that this time I would focus on whether Finn could bring a claim against the First Order, for the stress caused to him as part of his employment as a stormtrooper.

Please note that for my analysis below, I have assumed English Law would apply, that Finn would be considered an employee of the First Order (although we are never told about control and whether they receive a salary, sick leave, holiday etc) and that Finn had no pre-existing psychiatric history prior to the events of The Force Awakens. I have also assumed the First Order would be considered a genuine employer as opposed to a criminal enterprise.

Occupational stress

This can be a particularly difficult area of law as while there are some principles that govern this type of claim, the issues that arise in the different claims are often varied and a lot of the law is case specific.

It is accepted however that every employer has a duty to provide a safe place and safe system of work. The normal principles of duty, breach, foreseeability and causation will apply i.e.

  1. Does the employer have a duty of care?

  2. Has that duty been breached?

  3. Did that breach cause the claimant to suffer loss/damage? If so, was that loss or damage a reasonably foreseeable consequence of the breach?

We will assume that the First Order had a duty of care in their role of the employer of Finn. The next and more difficult question is whether the duty has been breached.

Breach – A disturbance in the force

Employers are only held to be in breach of their duties if they have failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, together with the justifications for running the risk. Employers are required to conduct a suitable and sufficient risk assessment, including identifying the risk of stress arising from the work activity.

The work activity we are looking at here is attacking and slaughtering innocent villagers in order to further the advance of the First Order. I am confident that any reasonable risk assessment would identify this work activity is likely to be stressful. The risk of significant psychological damage arising from engaging in this activity is likely to be high. The First Order would subsequently have had a duty to take reasonable steps to prevent their employee from succumbing to the effects of this stressful work activity.

Reasonable steps can include the following:

  1. Changing or adapting the work activity to reduce the level of stress

  2. (This is unlikely to be an option as the First Order’s main work activity seems to be killing people. However, an interesting point to note is that Finn’s work responsibilities appear to have changed as he refers to previously working in sanitation at the First Order Base. This would mean we would need to see why his role was changed to one of active combat, and whether adequate risk assessments and employee evaluations took place prior to changing his role. It also potentially would have been an option to move Finn to a non-combat role once it was identified the stress of combat was causing him to suffer psychological injury)

  3. Have an effective grievance procedure through which the employee can raise concerns about the work activity and the stress it is causing them.

  4. Respond appropriately to concerns raised by the employee e.g. allowing time off to recover, or referring to Occupational Health. It also can help an employer if they can show that they offered a confidential advice service, with referral, to appropriate counselling or treatment services.

Based on the information we are provided with in the film, none of these safeguards appear to be in place. It is unclear what, if any, steps have been taken by the First Order to avoid or minimise the effects of stress on their employees, or even to identify symptoms of stress in the first place.

Causation and foreseeability – I have a bad feeling about this…

If Finn was to pass the tests in relation to duty and breach, he would then have to show that he suffered a psychiatric injury which was caused by the First Order’s breach and that this was a reasonably foreseeable consequence of the breach.

Generally speaking an employer is entitled to assume its employee can withstand the normal pressures of their job unless aware of some particular problem or vulnerability. In this situation, I think there would be a good chance of showing that psychiatric harm, arising from the stress of being forced to kill strangers, was a reasonably foreseeable consequence of the activity. Finn would need to show the First Order should have foreseen the risk of him specifically suffering this harm (rather than it being a risk to the workforce in general). This might be difficult, as we would need to show that Finn’s behaviour was such that the First Order should have been alerted to the risk of him specifically suffering psychiatric harm.

Finn would have difficulty showing his workload was more than would be normal for that job, or that unreasonable demands were put on him when compared to colleagues in comparable roles. As far as we know, all stormtroopers are required to shoot people when commanded to, and Finn was not treated differently. We could potentially look into whether there were indications that other stormtroopers were suffering from harmful levels of stress, (indicating this was a problem within the First Order’s organisation). If stress-related illnesses were prevalent among stormtroopers then this would be good evidence that psychiatric injury was a reasonably foreseeable consequence of the work. We would ideally want to see the employment records of all stormtroopers which would be a logistical and practical challenge, although these records should be disclosable by the employer in a redacted form which hides the other employees’ identities.

We would also need to know whether Finn has ever alerted his superiors to the stress he is suffering. On the face of it, this seems unlikely as the first time he appears to suffer a stress reaction is while on Jakku. He then returns to the base and is confronted by his superior but does not tell them that anything is wrong. He quickly decides to leave his employment after that confrontation. Assuming these are all the relevant facts and there were no previous incidents, it would be very difficult for Finn to establish that the First Order knew or should have known he was suffering from stress. His employer was under no obligation to interrogate him following his return from Jakku. There was no reason for them to conclude he was suffering from stress (again assuming there is no previous history that we are unaware of). It may be however that Finn could establish Kylo Ren had actual knowledge of his psychiatric injuries. Kylo appears to notice Finn has a significant reaction while on Jakku, and when later told that one of his employees has had a breakdown, released a prisoner and absconded with company property, immediately identifies that Finn is the most likely perpetrator. This is compelling evidence that the First Order was aware of the impact of the work on Finn.

Finn’s failure to report stress would also need to be considered within the work context Finn operated in. The First Order seems to be a rather hostile work place, where those who disagree with their superiors are likely to be throttled and where their current leader (Kylo Ren) regularly has violent tantrums in the work place. It is consequently understandable that Finn would not report his symptoms of stress, or complain about the work demanded of him out of fear of punishment. This evidence would also help to show that in breach of their duty as an employer, the First Order has not ensured that there was a suitable grievance procedure for Finn to use in order to deal with his stressful work activities.

Armed forces

A further complication Finn would encounter in bringing his claim is that the First Order is no ordinary employer. He is effectively employed as a member of the armed forces (albeit an evil armed forces). Assuming this would be analogous to the Ministry of Defence (MOD), the First Order could argue that they have the defence of combat immunity for any and all injuries sustained by their employees in combat situations. As Finn’s psychiatric injury arose from the battle at Jakku, he would not be able to claim for this injury.

However, like the MOD, the First Order is not just an employer, but also a provider of medical services. Finn could consequently bring a claim for the failure to adequately diagnose and treat his psychiatric injury. He would need to show, however, that the symptoms of stress were made known to the First Order and/or that there was not a proper system available for him to use, in order to complain and make it known that the situation was unacceptable and causing him psychological harm.

Do bring a claim or do not?

As discussed in the paragraph above, no claim can be brought for injuries specifically caused in combat. However, the ineffective systems the First Order had in place, to allow the proper reporting of stress-induced illness, could give rise to a claim for failure to adequately diagnose and treat Finn’s psychiatric injury.

Liability for Abuse Caused by Foster Parents

Judgment has been given by the highest court in the land, the Supreme Court, in the case of Armes v Nottinghamshire County Council [2017 UKS C60].

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Miss Armes was placed into foster care by the Council with Mr & Mrs A and Mr & Mrs B during the 1980s. She was physically and emotionally abused by Mrs A and sexually abused by Mr B.

Vicarious Liability

She brought a claim for damages for the injuries including psychiatric injury which she received and consequential losses. It was accepted between the parties that the Local Authority were not negligent in the selection or supervision of the foster parents and that the abuse could not have been foreseen. The claimant argued however that the Council was nevertheless liable for the abuse, on the basis that they were vicariously liable for the wrong doing of the foster parents.

Vicarious liability usually arises in an employment context. If a fellow employee of a claimant is driving a vehicle and drives that vehicle negligently, the employer is nonetheless liable for its employee’s negligence and the injured claimant can bring the claim against the employer. This principle is known as vicarious liability and is well established law.

The claim was dismissed by both the High Court and the Court of Appeal. However, in a landmark Judgment the Supreme Court allowed the appeal, finding that the Council was vicariously liable for the abuse committed by the foster parents. An important part of the claimant’s case was that a decision taken by a Council during her childhood not by her, but by the Council, as between whether to place her in a local authority children’s home, or into the care of foster parents would be the difference between whether or not she was entitled to compensation without proving fault on the part of the local authority.

Had, for example, the claimant suffered the same abuse as she did suffer from the foster parents, in the hands of an employee employed by a children’s home, she would have been entitled to be compensated as the local authority would be vicariously liable for the acts of the employee carrying out the abuse. Until the Supreme Court’s Judgment the claimant, or those in a similar position, were prevented from any remedy from the local authority simply because the relevant abuse had been carried out by foster parents into whose care the Council had placed her.

The Council were vicarious liable for the acts of the foster parents in the Armes case for the following reasons:-

Integration and Business Activity

The local authority carried out the recruitment, selection and training of foster parents, paid their expenses and supervised the fostering. In those circumstances the foster parents were not carrying on an independent business of their own, and it was impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried out for the benefit of the local authority.

Creation of Risk

The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children, in circumstances where close control cannot be exercised by the local authority. This renders the children particularly vulnerable to abuse.

Control

The local authority exercise a significant degree of control over the foster parents: it exercises power of approval, inspection, supervision and removal. Micro-management or a high degree of control, are not necessary for the imposition of vicarious liability.

Ability to Pay Damages

Most foster parents have insufficient means to meet a substantial award of damages whilst local authorities can more easily compensate the victims of abuse.

There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at a much greater cost.

The decision of the Supreme Court now gives parity for victims, whether their abuse was caused by a council care home employee or by a local authority appointed foster parent.

Act Now - Changes to Personal Injury Claims

The Government is proposing to make substantial changes to claims made for personal injuries suffered in road traffic accidents. The changes are bad news for claimants.

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At present, if the personal injury element of the claim is worth £1,000 or more, the defendant’s insurers must make a contribution to the legal costs incurred by the claimant. This means that claimants are able to retain the majority (typically at least 75%) of the compensation they recover.

What are the Changes?

It is proposed that this figure, known as the small claims limit, will increase to £5,000. In claims worth less than £5,000, claimants will have to make a much larger contribution to their own legal costs, which will mean them receiving less compensation.

To put some perspective on this, at present, a typical whiplash injury lasting four weeks is worth around £1,000, whereas for the claim to be worth £5,000, the symptoms would have to last for 18 months to two years.

However, things get worse because at the same time as changing the small claims limit, it is also proposed that a tariff system be introduced which will set prescribed compensation figures for injuries lasting up to two years. This tariff system will leave claimants considerably worse off, as under the proposals claimants with injuries lasting for three months will receive just £225.

Why are the Changes being Introduced?

The Government has stated that the main aim of the proposals is to reduce the cost of claims to insurers, and therefore save motorists money through lower car insurance premiums. The changes will undoubtedly save insurers money, but whether this will be passed onto motorists in another matter altogether.

In 2013 substantial changes to personal injury claims were introduced which undeniably saved the insurers millions of pounds each year. The table below, published by the Association of Personal Injury Lawyers, based on information provided by the Association of British Insurers, shows how the cost of personal injury claims to insurers has reduced by 13% since then. It also shows that despite this drop, the average cost of insurance premiums has increased by 8%. It therefore seems unlikely that motorists will see any reduction in their premiums.

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When will this happen and how can I avoid it applying to my case?

It is planned that these changes will be implemented in October 2018. That might seem a long time away, but they could well impact on cases started prior to then, as the £5,000 limit could well apply to all claims issued at Court after that date. This could mean that a case may have been running for a substantial period of time based on the current rules, but if Court proceedings are issued after October 2018, and the claim is worth less than £5,000, the defendant would not have to pay anything towards the claimant’s legal costs, leaving the claimant considerably worse off.

It is also possible that the tariff system for valuing claims will apply to all cases started after the implementation date. The advice is therefore very clear – if you have had an accident and have been putting off starting a claim, do so now, otherwise you may be caught out by the new rules.

Holiday Sickness

As a personal injury solicitor one of the areas I specialise in is holiday accident claims.

I noted with interest recently the press release and guidance notes from the Solicitors Regulation Authority with regards to holiday sickness claims. The SRA states the Association of British Travel Agents reports that there is a 500% increase in compensation claims for holiday sickness since 2013. They are investigating more than a dozen firms in connection with holiday claims, including potential improper links with claims management companies and payment for referral of holiday sickness claims.

No ban on cold calling

It comes as quite a surprise therefore that the government will not legislate to prevent cold calling for personal injury claims as a whole. Recently the House of Lords gave all party support to ban cold calling by claims management companies; Conservative MP Baroness Altmann had attempted to include a ban in the Financial Guidance and Claims Bill. Incomprehensively Baroness Buscombe told peers (as per the recent APIL press release) “legislation for a ban on cold calling at this stage is not the right thing to do”.

I am having difficulty understanding this, cold calling is universally disliked and at a time when the insurance industry, and the government, had expressed concern over fraudulent claimants, and particularly the increase in holiday sickness claims (generated through cold calling), it makes no sense to me to not address this through a ban on cold calling.

SRA guidance

The SRA guidance goes some way to redress the balance warning firms of risk factors in holiday sickness claims which include:

  • the claim is made some time after the alleged incident

  • there were no reports of the claims to the hotel

  • there was no extensive sickness amongst others in the same accommodation

  • the claim comes from or involves people generating claims in the resort

  • the client’s contemporaneous report of holiday was positive

  • the client drank or ate excessively

However, unfortunately where people are cold called and approached about this there is going to be an increase in claims. I have already assisted a number of clients with claims, which other firms generated through cold calls, after they felt bullied and rushed through a process to initiate a claim without any full explanation of the process. Those clients described receiving a cold call and being told in no uncertain terms that they will receive compensation before the full facts of the case was known. This is incredibly damaging to those who have genuinely suffered illness abroad, not just holiday sickness claims but all types of accident claims.

Take advice from a reputable firm

This firm does not generate work through case management companies and the genuine claimant will have no difficulties in terms of the SRA guidance points. Where cold calling continues to exist I would encourage claimants to take proper advice from a reputable firm when pursuing any such claims.

Mental Health, Pain and Reality

‘Of course it is happening inside your head Harry, but why on earth should that mean that it is not real?’

This is one of my favourite quotes from one of my favourite book series. As one might expect from an author who has spoken at length about her own struggles with mental health, it offers insight into one of the biggest challenges faced by those who suffer from mental illnesses such as depression, anxiety, chronic pain and fatigue, which originate in or are exacerbated by the mind.

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Recognise the signs

Many seem to believe that things that happen ‘inside your head’ are somehow less real than those that occur outside the head. As a result of this there is an unfortunate narrative that suggests those who suffer from issues such as depression and anxiety should really be able to just shake it off. They should be able to ‘turn that frown upside down’ if they only try.

Some of our own clients also face these challenges. Whether they originate from a psychological condition or from an acquired brain injury managing a mental health condition is not easy and I know this from my own interactions with them. Just because an injury or condition has no external symptoms doesn’t mean that it is somehow less challenging.

Feeling pain

An example of this is pain. Many people feel pain for all kinds of reasons during their lifetime, including both emotional and physical pain. There are some situations that are globally acknowledged to be painful, such as, having your leg cut off or losing a loved one. There are also outward signs that someone is in pain (screaming, crying etc), but again it can be hard for an observer to really discern how much pain the person is in.

I, for instance, have been known to scream if I stub my toe. It is very painful to me but I doubt others would make the same fuss. Equally, I know some people who can be incredibly stoic and reserved when they are in pain. We all react differently and the outward signs of pain, depression or emotional disturbance are not always obvious to those around us. Everyone who is in pain (whether physical or emotional) relies on others to recognise the signs that they are in pain, and also to believe them when they report how much pain they are in.

Acceptance is positive

It is not just outsiders that can disregard symptoms which have originated in, or are worsened by, the mind. Sometimes the sufferers themselves can be very resistant to the notion their symptoms may originate from this source. They worry that if this were to be the case then they could be told their depression, their pain, their tiredness etc is not real and simply something they are making up.

Often the act of recognising the psychological element of a condition can be extremely helpful. This enables the development of strategies which can then be employed to help reduce the symptoms. For instance, if you understand that stress is worsening your chronic pain condition then you can take steps to reduce stress as much as possible. Similarly if you know you are not just sad but are actually suffering from clinical depression, then this might motivate you to seek therapy which could ultimately lead to a good recovery.

The future

It is very encouraging that more people seem happy to talk about mental health, and there appears to be a growing acknowledgement that seeking support when you need it is a sign of strength rather than an admission of weakness. As characterised by recent comments from Prince Harry about his own battles with mental health. I hope this increasing awareness will continue, so that we can work towards a culture where no one will be scared to reveal they need support for fear they may be told they just need to get over it.

However, at the same time as we are experiencing the start of a culture shift, we are seeing a huge lack of support for Mental Health Services. Official figures have revealed that between 2010 and 2015, NHS spending on children’s mental health services fell by nearly £50 million.

A recent survey carried out by the Association of Child Psychotherapists, British Association for Counselling & Psychotherapy, British Psychoanalytic Council and the UK Council for Psychotherapy revealed concerning results with 84% of the 3,000 counsellors, therapists and psychoanalysts claiming it has become more difficult for children to access the help they need, with more severe levels of illness required before help can be accessed.

Worryingly 67% said that waiting times had increased over the last five years and 33% say their workplace was facing downsizing or closure.

I sincerely hope, that going forward, the government will put reorganising the mental health provision in the UK as a high priority.

Where There's Blame There's a Claim

Channel 5 showed their first episode last night of “Where there’s blame, there’s a claim” and I hope the programmes will show a fair and balanced approach to the issue of personal injury claims.

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Odd rotten apple

There is often a stigma attached to someone pursuing a personal injury claim, with people thinking that the injured party is “doing it for the money” and the compensation is like a lottery win. However, this is simply not true. Of course there will be the odd “rotten apple” trying to pursue fraudulent claims, as illustrated by the so called “Crash for Cash” of Derby, which was also featured in last night’s programme, but generally fraudulent claims are in the minority and procedures are in place to flush those claims out.

Checks for previous claims 

In order for a claim to be successful a claimant has to prove that negligence has occurred and that the negligence has caused injuries. This would involve a medical report confirming the extent of the injuries sustained. In road traffic accident claims, the issue with fraud is being tackled with the use of an ASKCUE search, which searches against a claimant to see if they have had previous claims. In addition there is a set pro forma for medical experts to follow in preparation of their medical reports.

The programme included a claim that had been made by a young lady for injuries she sustained during a negligently applied eye brow wax, a gentleman who sued the police for the injuries sustained during a wrongful arrest and two riders who were involved on the horrific “Smiler” crash at Alton Towers. The injuries sustained between the featured claimants were of varying degrees but the programme showed that any level of injury has an impact on the injured person.

Cost to NHS

The episode also illustrated that in significant injury claims, for example the young lady who lost a limb in the Smiler accident, the financial impact on the NHS in the provision of desperately needed medical treatment. The costs of the amputee’s prosthesis were between £60,000 - £70,000 on each occasion, with the need for a replacement artificial limb once every 10 years. This is a drain on the NHS and if those injuries were caused by someone else’s negligence, where there is insurance available, it can only be right that those costs are covered by the insurer as part of a personal injury claim.

No amount of money will ever be able to compensate the young lady on the Smiler, she has had to make dramatic life adjustments as a result of the injuries she sustained, and her life will never be the same again.

I hope the programme will continue to illustrate why innocent people, who have been injured through no fault of their own, have the right to pursue a claim for compensation.

Give Mental Health the Funding it Needs

On average, one in four people will experience a mental health problem each year. Mixed anxiety and depression is the most common mental disorder in the UK, and whether as a result of bereavement, financial worries or relationship issues, that’s around 16 million people affected in the UK every year.

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Funding

Despite the prevalence of mental health issues and arguments to the contrary, mental health problems appear to be low down on the list of priorities, and certainly not parity to physical health issues. The charity Mind reported that local authorities spend on average, less than one percent of their public health budgets on mental health. This means that in 2016-2017, when the Government’s budget for local authorities’ public health expenditure was £3.32m, less than £30,000 was spent on mental health. It seems unsurprising then that only two out of more than 50 mental health trusts in England have received outstanding ratings by the Care Quality Commission, given the apparent lack of resources.

In January of this year, Prime Minister Theresa May had pledged to tackle the stigma surrounding mental health with the implementation of new initiatives for schools and employers to provide mental health support. However, only around £23,000 per parliamentary constituency was promised in support of these plans and critics remain sceptical about the Government’s attempt to improve mental health services without a significant amount of extra funding to match. And, whilst money certainly isn’t everything and we should not underestimate the power of raising awareness, the level of funding allocated to mental health provision remains an unresolved part of the agenda.

Royal discussions

Mental health is not just a current topic of conversation for politicians though. In a recent interview with the Daily Telegraph, Prince Harry revealed his own struggles with his mental health following the death of his mother Diana, Princess of Wales in 1997.He spoke openly about the negative impact that burying his emotions for almost 20 years and refusing to process his grief had on his mental health.

Together with the Duke and Duchess of Cambridge, Prince Harry was seen at the recent London Marathon promoting the Heads Together mental health campaign, which was the marathon’s charity of the year. The Heads Together project is a partnership between several charities and their hope is that others suffering from mental health issues will feel encouraged to talk about them and break the stigma that unfortunately still surrounds such issues.

Raising awareness is the first step to normalising conversations about mental health and the Telegraph reported that since Prince Harry’s interview, mental health charities had double the amount of people contacting them the following week seeking help and information.

Minds matter

And it’s not just the Royal family getting involved in the conversation. Stars such as Tom Hardy, David Tennant and Olivia Coleman have taken to social media to support the #1in4 selfie campaign as part of the BBC’s Minds Matter season to encourage people to normalise conversations about mental health.

It’s difficult to stress just how important raising awareness can be. It’s the first step to opening up a national dialogue for mental health discussions and dispelling the stigma so often associated with it. With the snap general election looming, an increase in mental health coverage could prompt party candidates to make it a part of their manifestos and give it the funding it undeniably needs.

PIP - Costing An Arm & A Leg

In 2013, the government launched Personal Independence Payment (PIP) to replace Disability Living Allowance (DLA) for individuals between 16 and 64 who require financial assistance to help with the extra costs caused by long-term ill health or disability.

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In certain circumstances, payments can be made to assist with mobility. Individuals are assessed to establish whether they qualify for either the standard or enhanced rate (previously the lower or higher rate, under DLA) for their mobility needs.

Whilst the rates have remained the same between DLA and PIP, the eligibility criteria have changed, resulting in over 50,000 people losing their specially adapted vehicles. This has cost numerous individuals their jobs and their independence. Due to the change in the criteria, the effect has been particularly detrimental to those who have suffered a lower limb amputation.

Motability Scheme

Individuals can spend their mobility allowance as they wish to best accommodate their needs. For example, someone who travels only short distances may spend their allowance on taxis, whilst others who travel further, such as to their place of work, may require their own (often specially-adapted) transport.

The Motability Scheme allows disabled people to lease a new car, scooter or powered wheelchair for three years by exchanging their mobility allowance if they receive either the higher rate mobility component of DLA or the enhanced rate mobility component of PIP. Anyone who is ineligible for the enhanced rate will not be able to get a vehicle.

Change in criteria

Under PIP, only those who can stand and then move less than 20m will qualify for the enhanced rate. The PIP Assessment Guide states that ‘‘Standing’ means to stand upright with at least one biological foot on the ground with or without suitable aids and appliances’. Aids and appliances may include walking sticks, crutches and even prostheses. Previously, an individual who could move no further than 50m would qualify for the higher rate under DLA.

The consequences of this change have been severe for many. To put it in real terms, consider an individual who is able to move, with aids, around their house and to their car but requires a wheelchair once at their destination. Previously, someone in this situation would have qualified for the higher rate and, subsequently, the Motability Scheme but is unlikely to be eligible under PIP.

If that wasn’t enough, there is also now a requirement under PIP that a claimant’s health condition or impairment must have been present for at least three months at the time of their assessment and be expected to last for at least a further nine months.

Why are the changes such a problem for lower limb amputees?

The best way to demonstrate the true effect of the changes is by way of an example.

Suppose you are unfortunate and find yourself in a road traffic accident. Up until that point, you were healthy and had no disabilities – you visited family, socialised with friends and worked Monday to Friday. Life was very 2 point 4. As a result of the accident, your right foot is amputated.

It takes no stretch of the imagination to begin to understand the difficulties you will face getting around. In the early stages, you may not be allowed to use crutches and will rely on a wheelchair to move about. Your leg will need to heal before you can be fitted for a prosthetic limb and, even then, the process can take some time. During this period, how will you get out of the house, visit friends and relatives, take your children to school? What about grocery shopping or even going to work?

Under DLA, you would have qualified for the higher rate mobility payments, being unable to walk further than 50m. You could have applied to the Motability Scheme to lease a specially adapted vehicle during your recovery and lived your life as independently as possible.

Even if you are initially unable to move further than 20m, you will probably struggle to satisfy the PIP time requirements to claim any benefit. Three months before the accident, you had no disability. In nine months’ time, it is most likely that you will have a prosthetic limb or at least be competent to get around using crutches and move more than 20m. You will not qualify for the enhanced rate mobility payments under PIP and you will be barred from the Motability Scheme. You will have no specially adapted transport and you will therefore be unable to go out. If you have been affected by the loss of a limb you could be entitled to Amputation Compensation and should contact our Serious injury Laywers

Is this fair?

It is imperative that people who suffer from a lower limb amputation do not lose their independence. Being confined to one’s house will not aid any recovery and preventing someone from getting to work, and potentially losing their job, benefits no one.

The media will often espouse the view that people take advantage of disability benefits and the system needs reforming so that only those who really need help receive it.

Following the 2013 reforms and introduction of PIP, someone who has suffered such a life-changing event as losing part of their leg is apparently no longer deserving of this help. Does society really begrudge an individual, in such a devastating situation, the best opportunity to recover, maintain their independence and lead a normal life?

PIP - Costing An Arm & A Legs

In 2013, the government launched Personal Independence Payment (PIP) to replace Disability Living Allowance (DLA) for individuals between 16 and 64 who require financial assistance to help with the extra costs caused by long-term ill health or disability.

In certain circumstances, payments can be made to assist with mobility. Individuals are assessed to establish whether they qualify for either the standard or enhanced rate (previously the lower or higher rate, under DLA) for their mobility needs.

Whilst the rates have remained the same between DLA and PIP, the eligibility criteria have changed, resulting in over 50,000 people losing their specially adapted vehicles. This has cost numerous individuals their jobs and their independence. Due to the change in the criteria, the effect has been particularly detrimental to those who have suffered a lower limb amputation.

Motability Scheme

Individuals can spend their mobility allowance as they wish to best accommodate their needs. For example, someone who travels only short distances may spend their allowance on taxis, whilst others who travel further, such as to their place of work, may require their own (often specially-adapted) transport.

The Motability Scheme allows disabled people to lease a new car, scooter or powered wheelchair for three years by exchanging their mobility allowance if they receive either the higher rate mobility component of DLA or the enhanced rate mobility component of PIP. Anyone who is ineligible for the enhanced rate will not be able to get a vehicle.

Change in criteria

Under PIP, only those who can stand and then move less than 20m will qualify for the enhanced rate. The PIP Assessment Guide states that ‘‘Standing’ means to stand upright with at least one biological foot on the ground with or without suitable aids and appliances’. Aids and appliances may include walking sticks, crutches and even prostheses. Previously, an individual who could move no further than 50m would qualify for the higher rate under DLA.

The consequences of this change have been severe for many. To put it in real terms, consider an individual who is able to move, with aids, around their house and to their car but requires a wheelchair once at their destination. Previously, someone in this situation would have qualified for the higher rate and, subsequently, the Motability Scheme but is unlikely to be eligible under PIP.

If that wasn’t enough, there is also now a requirement under PIP that a claimant’s health condition or impairment must have been present for at least three months at the time of their assessment and be expected to last for at least a further nine months.

Why are the changes such a problem for lower limb amputees?

The best way to demonstrate the true effect of the changes is by way of an example.

Suppose you are unfortunate and find yourself in a road traffic accident. Up until that point, you were healthy and had no disabilities – you visited family, socialised with friends and worked Monday to Friday. Life was very 2 point 4. As a result of the accident, your right foot is amputated.

It takes no stretch of the imagination to begin to understand the difficulties you will face getting around. In the early stages, you may not be allowed to use crutches and will rely on a wheelchair to move about. Your leg will need to heal before you can be fitted for a prosthetic limb and, even then, the process can take some time. During this period, how will you get out of the house, visit friends and relatives, take your children to school? What about grocery shopping or even going to work?

Under DLA, you would have qualified for the higher rate mobility payments, being unable to walk further than 50m. You could have applied to the Motability Scheme to lease a specially adapted vehicle during your recovery and lived your life as independently as possible.

Even if you are initially unable to move further than 20m, you will probably struggle to satisfy the PIP time requirements to claim any benefit. Three months before the accident, you had no disability. In nine months’ time, it is most likely that you will have a prosthetic limb or at least be competent to get around using crutches and move more than 20m. You will not qualify for the enhanced rate mobility payments under PIP and you will be barred from the Motability Scheme. You will have no specially adapted transport and you will therefore be unable to go out.

Is this fair?

It is imperative that people who suffer from a lower limb amputation do not lose their independence. Being confined to one’s house will not aid any recovery and preventing someone from getting to work, and potentially losing their job, benefits no one.

The media will often espouse the view that people take advantage of disability benefits and the system needs reforming so that only those who really need help receive it.

Following the 2013 reforms and introduction of PIP, someone who has suffered such a life-changing event as losing part of their leg is apparently no longer deserving of this help. Does society really begrudge an individual, in such a devastating situation, the best opportunity to recover, maintain their independence and lead a normal life?

Goodbye to the Law

This is a farewell blog as on 2 December I am leaving Lanyon Bowdler after 10 years of working for the firm. I wanted to take this opportunity to thank my bosses and colleagues for the experiences and opportunities and to share with you some of my memories.

My dream was becoming a reality

I had wanted to be a lawyer for as long as I could remember and after four long years of legal study at university, I yearned to be back in the mighty Shropshire. Training contracts were few and far between in the county and in my opinion; there was only one worth having! I was interviewed by Garry Richards and John Merry and was delighted when Lanyon Bowdler offered me a job. Finally, the dream of becoming a solicitor was to become a reality.

I received a letter to say that I would start my training in the personal injury department under the wing of Neil Lorimer. At first I wasn’t convinced that it was the area of law for me but that soon changed. In my first 12 months, I travelled far and wide for inquests and court hearings, attended conferences with some of the best QCs in the country and was involved in the settlement of a multi-million pound brain injury case. I was hooked!

A mutual love of numbers

Around two months into my training contract Neil asked me to have a go at drafting a Schedule of Loss on one of his big cases. I spent weeks pouring over the files of documents; adding in all of the invoices, reading ‘Facts and Figures’ and getting my head around multipliers for the first time and I loved it. Since then, drafting Schedules of Loss has become something of a speciality. The biggest schedule totalled more than £10m!

And so it was our mutual love of numbers (and Manchester United!) that got Neil and I off to such a good start. Upon qualification, I accepted a role in the personal injury department, working along side Neil and assisting him with his high value claims, as well as operating a case load of my own. I have been very fortunate to be able to work on top quality cases from day one.

Love a good courtroom drama

Neil also introduced me to cross-border litigation, and the Grenoble Coach Crash cases presented me with an amazing opportunity to learn the ropes in this very specialised area of law. We acted for over 20 Claimants, including one with a serious brain injury, in a group action. I have never forgotten the Claimants from those cases, many of whom were children at the time and I have stayed in touch with some. It was this case that first brought me to the Royal Courts of Justice in London. Our barrister Bernard Doherty, gave me a tour of the courts. That was a very special day for me. Thank you Bernard!

Another highlight was the week Neil and I spent at trial at the High Court in Birmingham on a lower limb amputee case with Johnny Jones (now QC) and the late Ralph Lewis QC. I was in awe at the brilliance of Ralph’s advocacy and enjoyed the backroom banter. I love a good courtroom drama and this was the best I had ever seen. We had a fantastic result and it was an experience that will stay with me forever.

More recently we settled a 1960s birth injury case. It was one of the most legally complicated cases I have ever worked on and it settled for £1m. The Claimant and his family were the most deserving of clients. They keep in touch with the firm and it’s lovely to see what a difference the money is making to their lives.

I’ve also married and had two children in the time I’ve been at Lanyon Bowdler. I have worked part time since having my daughters and I am very grateful to Lanyon Bowdler for allowing me to work in a way that met my family’s needs, but also allowed me to continue to develop as a lawyer. It is difficult for modern mums to strike the right work/life balance but Lanyon Bowdler have always done their best to support me with this and for that I am very grateful.

My own business Music Heroes

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And so a new opportunity has presented itself and I am saying goodbye to the legal profession to pursue something very different. I am also a musician and I am going to be running my own business; “Music Heroes”, providing instrumental tuition to primary school aged children. I am a classically trained pianist but also play the violin, guitar and ukulele. Being able to play a musical instrument is a wonderful gift that has far reaching benefits both in terms of academic achievement and also mental wellbeing.

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The Music Heroes ethos is to make instrumental tuition fun; learning and play songs that you know and love. Watch this space…..!

So this is it….Thank you to Lanyon Bowdler for the memories. I will miss you. Thank you Neil Lorimer for putting up with me for 10 years and teaching me everything I know. I wish you and the firm every success for the future.

 

Rio 2016 Paralympic Champion Professor Guttmann

I was privileged to run in the Spitfire 10k Commemoration of the Battle of Britain race on Sunday at RAF Cosford.

Each runner had the name of one of the servicemen killed in action pinned to their back. It was a humbling experience, to be running in the memory of so many ex-service men and women who had given their lives.

Whilst running I had time to reflect on this. As a solicitor with a special interest in both spinal injuries and military claims, it made me think how closely sport, injury and the Military Services are interrelated.

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Innovative approach to treatment

In June this year, Lanyon Bowdler sponsored the 50th anniversary of the Guttmann lecture, hosted by the Midlands Spinal Injuries centre at the Robert Jones and Agnes Hunt Hospital. I was honoured to be an attending delegate sitting amidst the country’s leading spinal and rehabilitation experts.

Whilst running it had poignantly reminded me of those war veterans who were not commemorated, those that had returned, but had done so with shattered lives, either from devastating physical injuries or emotionally scarred from Post-Traumatic Stress disorder. How, thanks to the innovative approach to treatment and rehabilitation through sport advocated by Professor “Poppa” Guttmann; he had given hope, inspiration and direction to spinal patients recovering from war injuries by way of physio and rehabilitation, and more inspiringly had been the instrumental founder and pioneer of today’s Paralympics Games.

60 patients were saved

By way of background, Professor Sir Ludwig Guttmann, a German born Jew, was an internally renowned neurologist but was forced to flee Nazi Germany just before the second world war. Following violent attacks on Jewish people and properties, he had been banned from practicing medicine professionally. During Kristallnacht on 9 November 1938, Guttmann ordered his staff to admit anyone into the hospital without question. The following day he justified his decision on a case-by-case basis with the Gestapo. Out of 64 admissions, 60 patients were saved from arrest and deportation to concentration camps.

National Spinal Injuries Clinic at Stoke Mandeville Hospital

After coming to Britain with his family, he continued his spinal injury research at the Radcliffe Infirmary. In September 1943 the British government asked Dr Guttmann to establish the National Spinal Injuries Centre at Stoke Mandeville Hospital. Initially he hated what he found at the Spinal Unit.

Patients care in those days was merely palliative. Most prognoses were terminal. Paralyzed patients, including many of the returning ex-service men suffering from horrific injuries, were consigned to their beds and incarcerated in plaster. Eighty per cent of patients died within three years, from bed sores, urinary tract infections and other complications. Morale amongst staff was low.

Left able to walk after 26 years

Dr Guttman transformed the place. He would not accept a fatalistic care regime, challenged the negativity in both staff and encouraged patients to fight back. Crucially he introduced the idea of physiotherapy as a medical treatment. He was a huge advocate of using sport as a way of building muscle strength and combatting depression. He turned to the military and hired an Army physical trainer to come in encouraging/insisting the patients train using weights, play table tennis and take up archery. By making them move, providing encouragement, giving hope and support through singled dogged determination, it transformed patients.

One World War one veteran, who had been lying flat on his back for 26 years, came to the Unit to try one of their new wheelchairs. Six months later, he left able to walk with the aid of just a stick.

First Stoke Mandeville Games

Dr Guttmann organised the first Stoke Mandeville Games for disabled persons on 28 July 1948, there were just 15 ex-servicemen competing in a wheelchair archery competition, coincidentally the same day saw the start of the London 1948 Summer Olympics.

Dr Guttmann used the term “paraplegic games” for national games he held in order to encourage his patients to take part. This came to be known as the "Paralympics." By 1952, more than 130 international competitors had entered the Stoke Mandeville Games.

Rio 2016

Today, Equestrian rider Lee Pearson is Great Britain's flag bearer for the opening ceremony of the Rio 2016 Paralympic Games. This is a proudly fitting testament to the inspiration and foresight of one individual, carried on by the dreams and determination of others, namely the 264 team GB participants, international representatives from all over the world, as well as the innumerable other patients who, over the decades have, and continue to benefit from his innovative treatment philosophies and practises.

When is a Tractor Not a Tractor?

The European Court of Justice (ECJ) delivered an extremely significant decision in the case of Damijan Vnuk v Zavarovalnica Triglav (2014), regarding the issue whether a vehicle used on private land should be insured against civil liability, and concerning the use of vehicles as per Article 3(1) of the First Motor Insurance Directive, which is an EU Directive.

The facts of the case will sound uncomfortably familiar to those who use vehicles on private property. Mr Vnuk suffered an injury after being knocked off a ladder whilst working on a farm. The accident was caused by a tractor with a trailer reversing in the farm courtyard. The initial position of the Slovenian domestic courts was that a compulsory insurance policy on the tractor, from which Mr Vnuk was trying to claim compensation, would not offer protection when a tractor was used as an agricultural machine on private land. Mr Vnuk was, however, of the view that 'use of the vehicle' should not be limited only to journeys on public roads.

The Slovenian Supreme Court raised a question with the ECJ, enquiring whether “the use of vehicles” phrase should be limited only to road traffic accidents.

Landmark Ruling

The ECJ, in its landmark ruling, held that the term “use of vehicle” indeed extends to a vehicle being used “as a means of transport or as machines, in any area, both public and private, in which risks inherent in the use of vehicles may arise, whether those vehicles are moving or not”. Furthermore, it covers any use which is consistent with the normal function of that vehicle.

The ECJ also considered the term “vehicle” which, in the First Motor Insurance Directive, is defined as “any motor vehicle intended to travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled”. The ECJ ruled that the definition of the vehicle is not connected to the use of the vehicle, and therefore a tractor with a trailer fulfils that definition, even if it is used as an agricultural machine.

Bringing the Law Back Home

The implications in the case of Vnuk are significant as it appears some provisions of domestic legislation, being the Road Traffic Act 1988, are in fact in breach of the First Motor Insurance Directive. Firstly, the duty to take out third party motor insurance is limited to the “use of a motor vehicle on a road or other public place”. Secondly, the term “motor vehicle” is defined as “a mechanically propelled vehicle intended or adapted for use on roads”.

The amendments to the Road Traffic Act 1988 are yet to be seen. The Road Traffic Act 1988 excludes some vehicles from the obligation to take out third party insurance, for example some local authority owned vehicles, and the Act may in future be amended to exclude other types of vehicles, as this is allowed under the European law.

However, at this point in time, owners of agricultural vehicles, forklifts, ride-on-lawnmowers, golf buggies and go-karts could find themselves potentially liable for injuries caused on private land but not covered by their insurance. Legal representatives of those injured in accidents involving vehicles on private land, will be citing the case of Vnuk which is directly applicable in the UK, in support of their clients' claims and may consider bringing a legal action against the British Government for a failure to implement EU law properly.

Accidents Abroad Seminar and Legal Update

The following account of the day is written by Gayle Kinsey who is a solicitor within the accident abroad team.

Personal Injury solicitors at Lanyon Bowdler have been successfully pursuing claims on behalf of Claimants injured whilst abroad for over 20 years. French coach crashes, rail disasters, aviation claims and road traffic accidents in all corners of the globe are examples of cases where the team have been instructed. A general rise in the number of people travelling abroad, whether for business or pleasure, has seen a consequential rise in the number of accidents and claims. Lanyon Bowdler now has a specialist team of accident abroad solicitors who can offer expert advice on these often complex claims.

Over the years, Lanyon Bowdler has developed relationships with foreign lawyers and barristers without whom it would not be possible to conduct claims such as these. A seminar was held at the Malmaison Hotel in central Birmingham on 6 March 2015 giving those experts the opportunity to present to accident abroad lawyers and other interested professionals.

The event was the first of its kind organised by Lanyon Bowdler Solicitors and was introduced by Neil Lorimer, award winning personal injury solicitor specialising in catastrophic brain injury and amputations. Neil is a partner with the firm and head the accidents abroad team. Neil welcomed the speakers and delegates including Wolfgang Resch the CEO of PEOPIL.

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Jurisdiction – Lucy Wyles

The first of the speakers was Lucy Wyles, barrister at 2 Temple Gardens. Lucy set out the basic rules concerning jurisdiction, i.e. the law used to determine the country in which the claim will be pursued through the courts. She looked at rules contained within Brussels I bis Regulation (1215/2012) which is applicable from 10 January 2015, as well as the traditional common law which applies to those jurisdictions not covered by the Brussels Regulations, such as Mexico and the USA.

The basic rule under the Brussels Regulation is that the Defendant is served in the jurisdiction where he is domiciled. The courts permission will be required where service is outside of the jurisdiction. Lucy set out important exceptions to the general rule that applies in matters of tort under Article 7(2), which states a Defendant can be sued in the place where the “harmful event” occurred; the harmful event normally being the accident itself, and not any indirect damage such as loss of earnings or subsequent medical deterioration which could conceivably take place in a different country to that where the accident occurred. Importantly this is different to the “jurisdictional gateway” which applies under the common law whereby it is possible to sue in the English/Welsh courts as long as some damage was sustained there. The “forum conveniens” rule which applies under the common law is far wider than that contained in the Brussels Regulation.

Lucy set out the details of an interesting case heard by the European Court of Justice in which it was held a hotel which took online bookings with customers in a different country was deemed to be “directing commercial activity within a member state of the consumer’s domicile”, and thus a claim could be pursued by the consumer in his home court.

Other topics covered by Lucy included adding parties domiciled in different jurisdictions to proceedings and direct actions against insurers, now commonplace in road traffic accidents following the case of Odenbreit, and now contained within Rome II at Article 18.

Applicable Law – Bernard Doherty

Bernard Doherty has acted as counsel in many of Lanyon Bowdler’s cross-border cases. He is the lead author of “Accidents Abroad: International Personal Injury Claims which is an essential text for anyone practising this area of law.

Bernard’s presentation on applicable law and, in particular, “Applying Foreign Law to Claims in Tort” flowed nicely from Lucy Wyle’s discussion on jurisdiction. When a cross border case is before the English courts, the judge must determine whether some foreign law should be applied rather than English law. Rome II will apply to events giving rise to damage in member states after 11 January 2009. To the limited number of on-going cases where the accident occurred before that date, the Private International Law (Miscellaneous Provision) Act 1995 (“the 1995 Act”) applies. The common law will also apply on some rare occasions where the Rome II exclusions apply such as in the case of certain acts of the State which only a State rather than a private individual can carry out.

Irrespective of whether the 1995 Act or Rome II applies, there is what Mr Doherty refers to as a “fairly universal rule” which is that rules of evidence and procedure will always be governed by the law of the forum. However, the substance/procedure dividing line may be drawn in different places depending upon which applies.

Under the 1995 Act matters relating to remedy including the assessment of damages are considered procedural. This is where the key difference with Rome II lies as article 15(c) states that the “existence, the nature and the assessment of damage or the remedy claimed are all to be governed by the substantive applicable law”.

Mr Doherty explained the importance of the Court of Appeal decision in Wall v Mutuelle de Poitiers. As with many continental jurisdictions, the French courts assess damages using a single expert. The Defendant French insurer argued that an English judge should try to reach the same result as a French court and, therefore, use the French single expert approach to obtaining evidence. The Claimant argued that expert evidence was a matter of procedure and so to be dealt with according to the law of the forum ie English law and thus experts in a number of specialist disciplines should be instructed. The Claimant was successful in this argument. The Defendant did succeed on its argument that the secondary law such as conventions and damages guidelines should be applied by the English court.

The argument, that the aim of Rome II was to harmonise outcome of cases across member states, was rejected. However, dicta in the more recent case of Cox v Ergo Versicherung would suggest that this argument is still “up for grabs” to use Mr Doherty’s expression. No doubt, the ECJ will have the final say!

Antoinette Collignon

Antoinette Collignon is a partner of Dutch law firm “Legaltree”. She is also co-founder of the Pan-European Organisation for Personal Injury Lawyers (PEOPIL) and the first Dutch (as well as first female) president from 2009 until 2013. Antoinette’s relationship with Lanyon Bowdler began in 2004 when she acted as co-counsel in a case involving three young men who were tragically killed in a car accident in Holland. The administrators of the estates, on behalf of the dependent partners and children of the deceased, pursued Law Reform (Miscellaneous Provisions) Act 1934 Fatal Accident Act 1976 claims.

Antoinette provided a very helpful overview of the types of personal injury systems that exist across Europe. These vary from liability systems like those in England and Wales to no fault systems. In Holland, in traffic accidents involving pedestrians and bikers there is a cap of 50% on any contributory negligence. So even where a pedestrian or biker is 90% to blame for his injuries, he will get 50% of the value of his claim.

Antoinette stressed the importance of selecting an appropriate co-counsel and provided some excellent tips in this regard. With 400 members across the world, PEOPIL is an ideal place to look for a foreign lawyer.

Antoinette concluded with an overview of the Hague Convention on the law applicable to road traffic accidents . Twenty two countries are signatories to the convention though not the UK. Where those countries are also EU member states, the Hague Convention will prevail over Rome II.

Jon Sutton

Next up was Spanish lawyer, Jon Sutton of Spanish law firm De Cotta Law. Jon is the head of the international personal injury litigation team at De Cotta Law. He assists private clients and UK law firms with claims for accidents which occur in Spain. Jon is dual qualified in England and Spain and is a very useful contact if conversing in Spanish is not a forte!

Claims arising out of accidents in Spain are a common feature in accident abroad work; largely due to the popularity of Spain and surrounding islands as holiday destinations. Spanish personal injury law and procedure in the Spanish courts is very different to the system we know under English law and Jon explained some of the crucial differences that English lawyers should be aware of.

It will rarely be advisable to pursue a personal injury claim through the Spanish Courts (there is no recoverability of costs under Spanish law). Where it is possible to pursue a claim through the English courts, the Spanish law relating to limitation, liability and now under Rome II, the assessment of damages will apply. There is a 12 month limitation period under Spanish law. Jon explained how this could be extended by “Burofax” but warned against English lawyers trying to do this themselves. The “Burofax” must be in Spanish and meet certain strict criteria.

In Spain, damages are assessed according to the Baremo Tables which Jon likened to the English CICA tariff. He stressed the importance of clearly instructing English medical experts in a way that their reports can be used to quantify damages using the Baremo Tables.

Paul Rosson

Finally, Paul Rosson of Frenkel Topping considered the matter of periodical payments and the issues that may arise in a case against a foreign insurer. Before ordering an award by way of periodical payments, the court must be satisfied that the continuity of payments is reasonably secure (CPR 41.9(2)(a)). One test of a “reasonably secure” payment is defined in the Damages Act 1996, namely that it is protected by a scheme under section 213 of the Financial Services and Markets Act 2000 (compensation). In the UK, the scheme is the Financial Services Compensation Scheme. Members of the European Economic Association (EEA) must have an equivalent FSCS scheme in their home state.

Paul considered the Spanish “Consorcio de Compensacion De Seguros” scheme, the Dutch “Waarborgsfonds Motorverkeer” scheme and the Californian “Insurance Guarantee Association2.

Paul concluded by considering taxation and currency risk and alternative options to periodical payments should continuity of payments not be deemed as reasonably secure. This is a complex issue and financial advice will be crucial to confirm or deny the security of continuity of payments and determine the optimum solution for settlement.

The Afternoon Session

Following lunch, the panel gave consideration to a case study; discussing the issues which arise during the life of an accident abroad case.

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The case study was based on a fictional car accident in Spain involving Claimants and potential Defendants from Shropshire, Holland, Spain and California.

The afternoon was a more informal opportunity to apply the helpful points raised by the speakers in the morning to a set of facts, and this was well received by delegates. Chaired by Mr Doherty, the speakers discussed the issues that arise during the life of an accident abroad case, right from the first considered decision of where to bring the claim, against which Defendant, through to whether a periodical payment is an option to be pursued against a foreign insurer. This was a great opportunity for the delegates to raise questions of the experienced speakers and led to a “stimulating” and “useful” discussion as described by delegates.

A former client of Lanyon Bowdler who had been injured in a car accident in Spain contributed to the discussion considering with delegates the view point of a Claimant injured abroad. He confirmed that for him it was important to be able to bring a case in his home country. With Lanyon Bowdler’s expert guidance, assisted by Jon Sutton and Bernard Doherty, he had been able to pursue damages in the English courts and recover legal costs.

Lanyon Bowdler has received great feedback from delegates stating “the format of the day worked extremely well, with the opportunity to apply the morning’s learning to the problem”, Delegates found the day to be “hugely educational” and a “great opportunity to network”.

Farm Vehicles and Mud on the Road - Farmers Must be Aware of the Law

Following a wet summer and difficult harvest we just need to be careful when driving.  Of equal importance is the need for the farmers to know the law regarding mud on the road and to ensure users are safe. 

Farmers and vehicle operators who deposit mud on the road maybe potentially liable for a range of offences under the Highways Act.  Section 148 makes it an offence to deposit mud on the highway and interrupt the use of other road users.  Section 149 gives the Highway Authority the power to clean the road and recover its expenses from the person causing the obstruction.  Section 161 of the Highways Act makes it an offence for anyone to deposit anything whatsoever on the highway which will cause a user to be injured or endangered.  A civil claim may also follow any personal injury, damage or loss as a result of mud on the road.

I would therefore urge farmers to ensure they keep their own farm roads and minor roads clear wherever possible, to keep to low speeds, particularly when travelling short distances to retain mud on the vehicle.  A written record of decisions on whether or not to deploy signs and clean the roads, farm roads and other minor roads where available, check availability of hire equipment.  Farmers must do everything possible to prevent mud deposited on the road, which includes cleaning vehicles before leaving fields.  If there is a danger of mud being accidently deposited on the roads they must use slippery road signs with a mud on road sub-plate to alert other road users, check local highway authorities.

It is very important to clean the road in the working day and always at the end of a working day and ensure that labour and equipment is available and suitable for this task.

In particular, farmers should be aware that where a contractor is used they must enter into proper agreements to ensure who is responsible for the mud on the road, lineage and cleaning etc, to make sure public liability insurance is in place to safeguard against any such claims being brought. 

Wheelchair Awareness Day

I was horrified to read that paralympian Anne Wafula Strike took the drastic decision to undergo surgery to have a suprapubic catheter fitted (for which she had no medical need) because she had had such bad experiences trying to access working disabled toilets. On one occasion she ended up having to wet herself on a train journey because the disabled toilet was out of order. She describes how finding disabled toilets, which would accommodate her needs, was a daily struggle. Such an experience is humiliating and facing these kinds of issues daily can significantly restrict the quality of life that the disabled should be able to enjoy.

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My colleague Dawn Humphries and I had an eye opening experience at a Wheelchair Awareness Day in Birmingham hosted by No 5 Barristers Chambers, which was held with input from the Back Up Trust, (a UK charity helping individuals who have suffered a devastating spinal cord injury rebuild their independence), solicitor and wheelchair user Raquel Siganporia (Trustee of the Spinal Injuries Association) and paralympian Steve Brown, Captain of the London 2012 GB Wheelchair Rugby team.

Basic wheelchair skills

As well as some inspirational talks from their key speakers, and insight into the experience of wheelchair users, Dawn and I were taught some basic wheelchair skills by Back Up. We then completed a basic challenge which included manoeuvring through a slalom, reversing and parking – not too bad on a flat surface with nothing else to worry us!

We were then let loose on the streets in the City Centre to try and complete seven real life challenges. These included trying to access a disabled toilet, visiting a cashpoint and purchasing a drink from a café.

It was a real eye opener and incredibly hard work to propel yourself on what appeared to be a flat pavement, every slight surface change was gruelling. We were further thwarted by a lift that didn’t work and fire doors so heavy they could barely be opened from a sitting position!

Lack of accessible facilities

As for trying to access the disabled toilet, this proved one of the biggest challenges of all. Although Birmingham Central Library is a modern state of the art building, in which you would have hoped full consideration had been given to providing accessible facilities, this sadly did not prove to be the case.

There was no disabled toilet on the ground floor, and as mentioned above the lift initially didn’t work and we were faced with the heavy fire doors. Having finally manoeuvred through the doorway we were faced with a sign on the disabled toilet to say it was ‘out of use’. At this point I began to understand where Anne Wafula Strike was coming from.

Dawn and I encountered similar difficulties when trying to perform the other challenges getting a real glimpse of an insight into how so many day to day tasks can present a huge challenge if you are a wheelchair user.

This can end up limiting the options that should be available, but Raquel Siganporia challenged us to rethink and raise our expectations for those who have to use wheelchairs.

There is clearly still a huge way to go in ensuring that accessibility and quality of life for wheelchair users is as good as it can be.

Right equipment

The day also highlighted what a difference it can make having the right equipment. Claire Ashton, an Occupational Therapist with huge experience in this area highlighted how high quality, well fitted wheelchair and postural management support can make all the difference for individuals who have a spinal injury. This also reduces the risk of other medical complications such as pressure sores, chest infections and urinary infections.

Wheelchair rugby leaves us battered and bruised

In the afternoon we met Steve Brown, who used to be Team GB wheelchair rugby captain, who now hosts Countryfile, works with Prince Harry at the Invictus Games and presents as a sports commentator. Steve gave us an incredible insight into how a spinal injury, although catastrophically life altering, can also be a catalyst for amazing life opportunities.

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We then took a coach to the university sports hall and soon realised we were in for trouble, when faced with not only a sea of wheelchair rugby chairs, but also people getting changed into sports gear. What followed was a terrifyingly intensive two hour knockout heat of full on, no holds barred, rugby combat, coached by Team GB champions, which was absolutely not for the faint hearted. They were ruthless and we both had the bruises to show for it and are thankful that compulsory games are no longer part of our weekly routine!

We made some good networking contacts, were exhausted, but came away with a far greater insight into some of the challenges and skills of wheelchair living.

The day made a lasting impression on our understanding of what is clearly a massive challenge to those with spinal injuries and their families. It has underlined the importance of helping those with spinal injuries to have the support and equipment to maximise their quality of life.

Many thanks to No 5 Barristers Chambers for letting us use their photos in the above blog. To view the great video from the day, visit:

https://www.youtube.com/watch?v=maH5V0G9kBQ&feature=youtu.be

Latest News

14 Sep 2018

Wheelchair Awareness Day

I was horrified to read that paralympian Anne Wafula Strike took the drastic decision to undergo surgery to have a su...

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