Robin – Pre-medical settlement

Robin jogged across the main road between stationary vehicles stuck in traffic.  When he got to the centre line of the road, he should have looked both ways.  If he had looked to his right, he would have seen the car driven by the Defendant, who impatiently had pulled out of the stationary traffic, into the oncoming lane so that he could turn right further on.  Robin was knocked down by the car and indeed knocked out momentarily. 



Running between stationary traffic and knocked down

The loss of consciousness in his case wiped out any recollection of the accident.  Head injuries, even if minor, as this one was,  can give rise to amnesia about events leading up to the accident. 

His main injury, however, was a fracture of the lower leg which caused him a fair amount of pain and discomfort, particularly as it was not initially  diagnosed at the hospital. 

Although Robin could only give us a rough indication of where it had taken place, fortunately he came to us within a month after the accident.  As this had occurred on a main road, we were able to approach the council to search their CCTV images.  The accident had indeed been captured on film, showing the vehicle pulling out into the oncoming lane (there was no oncoming traffic) and running into Robin, throwing him up into the air. 

There was no doubt that the car driver was mainly to blame or, as lawyers would say, “primarily liable” for the accident.  Nor was there doubt that Robin would be held partly to blame – “contributorily negligent”.  He had crossed in front of a stationary lorry at a jog without checking whether the road was clear beyond it.  The degree of contributory negligence is always a battleground between claimant and defendant and requires a lawyer’s skill to assess the likely percentage which a Judge would find at trial.  The defendant’s insurer will always look for a high reduction whereas our job as claimant lawyers is to protect the client’s damages as much as possible and to argue for as low a percentage of contributory negligence as is realistic.  In this case, the defendant’s insurer threatened that they would deny liability altogether as their insured was “there to be seen”.  This was unrealistic bluster in our view. 

They coupled this empty threat with an offer of £15,000 in full settlement of his claim.  The offer was made “without prejudice” which means that we could not produce it in court.  It was made just before Christmas and was time limited. 

We will never advise acceptance of an offer without sight of a medical report, unless the circumstances are very straightforward and the victim has recovered fully from their injury.  A claimant who accepts an offer in full settlement does not get a “second bite of the cherry” if their anticipated recovery does not take place or is delayed.  However, the decision is always the client’s, not the lawyer’s.

Robin, who had not suffered any loss of earnings arising from the accident, decided for his own reasons that he wanted to accept.  He had not expected to recover the sum the insurer was willing to pay. 

The insurer also paid our costs in full. 

There are three points worth noting in this story.  The first is that insurance companies may make offers without sight of medical evidence by looking at what they anticipate is the likely overall cost of the claim.  This was a proper offer made by a reputable insurer and there was no question of the claim being fraudulent.  But claimant lawyers don’t like “pre-medical offers” because it often puts the claimant into a difficult position of having to reach a decision on a time limited offer before a prognosis on their injury can be given.  Insurers often complain that claims, particularly for whiplash, are fraudulent but it does not stop them making pre-medical offers to get rid of them!

The second point is that because Robin came to experienced lawyers on time, we were able to preserve the evidence of the accident (councils usually do not keep CCTV images for more than a month).  The images of the accident were distant from the camera, but we were able to get them blown up and have stills made of the exact point of impact.  There is no evidence as compelling as photographic evidence if you can get it. 

The third point is that without expert lawyers, Robin may have been persuaded to accept a much lower figure or a higher proportion of contributory negligence.  Under Coalition Government proposals, the costs of representing someone like Robin and settling his case before proceedings were issued will be cut by about 80%. That will make it impossible to represent such accident victims economically. The government does not want to see injury victims properly represented at the expense of insurance companies.  The claimant’s legal costs are to be cut, but the defendant’s insurers can spend what they like on lawyers to face down a claim.  These proposals will become law in April 2013, unless they are stopped.