Well what a start to the summer. With the TT in full swing, and no rain forecast, bikers the length and breadth of the country will be boosting the takings of the cafes and chippies of beautiful North Wales; my biking nirvana. I live in earshot of one of the main routes towards the bike friendly Ponderosa cafe on the Horseshoe Pass near Llangollen and can hear my brothers in arms by the thousand passing on a sunny Sunday.
But I also read the local press who took a break from reporting park closures, school closures, pub closures and other troubles of the area to report a depressingly common feature of motorcycle fatalities in the North Wales area. I read every one and weep.
A particular example happened not two miles from me in Penyffordd, where a double biker fatality that involved another four riders sent shock waves across the local biking community. As a motorcycle accident lawyer all my working life I deal with cases like this, and they do affect me greatly and they affect my riding, making me more and more defensive. As a consequence, I have ended up succumbing to the inevitable and bought a GS!
But as bikers we assess the risk/reward ratio and accept our plight should the worst happen due to our own failings. What we cannot accept, however, is when another’s failings cause our downfall. Whilst it may be statistically inevitable that bikers face more chance of being injured through another driver’s fault whilst on the road, that does not mean that when it comes to legal rights they are treated any differently. Again as a lawyer of almost 30 years, let me set the record straight and say that, in the Civil Courts at least, bikers are treated no differently than anyone else. Motorcycle accident cases are heard by educated, experienced judges and generally bikers get a fair crack of the whip.
I should pause here perhaps to acknowledge that this may not be the case in the Criminal Courts. I have represented many bikers involved in serious accidents where they have been prosecuted, whereas the driver has not, in circumstances where there was clear fault on both sides.
I even had a case prosecuted in North Wales where my client, who was an instructor no less, was overtaking a vehicle that, without indication, performed a U-turn right in front of him nearly taking his leg off. Imagine my ire when I received a written explanation from the North Wales CPS that they actually had a policy to only prosecute motorcyclists in such situations to address the “prevalence of bad riding” in North Wales. Yes in North Wales you are more likely to be prosecuted for exactly the same example of careless motoring if you are a biker than a car driver.
Anyway, back to the main thread, and let’s concentrate on situations when a rider is involved in a collision causing damage and injury where there is total or at least partial fault to be cast on another road user.
Most of us don’t want to think about it, but you can be the best rider in the world and some numpty can perform a U-turn in front of you without looking, as happened to a friend of mine twenty years ago.
He was a riding god, and killed just like that.
So it has happened to you or a mate, what should you do? Well you know from lurid headlines of “Compensation Scam” and other Daily Fail diatribe that claiming is wrong isn’t it? Well no it bloody well isn’t. Sorry to get so passionate, but I have dedicated my career to looking after thousands of people just like you who did not want to be injured but have been; by someone’s inattention. Why should they suffer particularly when that other person had the foresight to take out compulsory insurance to pay out in such circumstances? It is our legal right to claim, and whilst I would readily acknowledge that this right has been abused, I will defend the right to claim compensation at all costs and even more so now that this government are proposing to ban claims for soft tissue injuries from RTC’s.
Don’t believe me? Well here it is.
I digress (again), so back on track with my advice as to what to consider in that short time from landing face down to being literally bombarded with approaches offering to look after your claim. Trust me, you will be bombarded as everyone but everyone who gets to know about your accident will have a financial arrangement with a legal practice to get a kick back for passing on your details. Everyone from the recovery driver, the police, somebody at the hospital, the salvage yard, your insurance company…..the list is endless. They will all try to make around £400-600 which is the present “going rate” for passing on your details.
Let me explain why this is utter madness, and if you let it happen to you, then you are losing out not just on money but on proper representation as you will inevitably be getting a poor service based on low profit margins.
So you need to pause, think and then choose how you want to be looked after and this guide is indispensable. Here’s a ‘top ten’ of things to consider BEFORE you make the first call:
1. Do not ring your insurance company…….first.
Insurers deal with thousands upon thousands of accidents every day and know all there is to know about saving few quid here and there and making a quick buck from flogging your details to their tame panel solicitor. The government have tried and tried to ban these referral fees by issuing various regulations forbidding them. In Spain there is a saying amongst lawyers: “Hecha la ley, hecha la trampa”, meaning that as they pass the law they also make the loophole. So referral fees are still paid on at least 90% of cases. In other words it is 90% likely that if you do not choose your own lawyer, a fee will have been paid to get your case.
Think about that for a moment.
That means that at least £400-600 has been taken from the money available to buy you a good legal service from experienced, proper lawyers. It is inevitable that this business model can only lead to lower profit margins and a poorer service to you that is aimed more at recovering that outlay quickly than making sure your case is given the time and attention it deserves.
If you don’t believe me here is a reputable article on how much Admiral insurance made on referral fees….a staggering £6 per vehicle they insure!!!
2. Do not accept an unsolicited offer of assistance.
For much the same reason as above.
I cannot say clearly enough how everyone involved in the aftermath of accidents will be on a referral fee incentive to pass on your details. The only reason they can do this is that most people will only have one accident in their lifetime so have no reason to know anything about it and the people involved in the sector prey on that lack of knowledge. Indeed a whole, completely unnecessary industry has grown up to fill that gap between the accident victim and the lawyer; namely claims companies.
All a claims company can do is pass, or rather sell your details to a solicitor. That’s it. They cannot conduct the case as only a solicitor can do that and get paid for it. They can’t. See, I can’t say it any clearer…if you call a claims company they will merely pass on your details (or pass you through directly to circumvent regulations) to a lawyer who will pay the a fee. That of course leaves the lawyer with less money to run your case so all you get is a poorer service.
3. Appoint your own Lawyer….call a Solicitor.
I accept that I am bound to say that being a lawyer, but think about it, all I want to do is to look after the legal rights to compensation for innocent accident victims and do it in a way that they will be so pleased with my services that if they ever have it happen to a friend or relative they will bring them to me. That way my business prospers in a good old fashioned way of doing a great job. Further, I am regulated to within an inch of my life so have to always act in your best interest. Period!
Contrast that to a claims company, an insurer, or for that matter any “referrer” who will only owe a duty to swell their coffers or pay for better champagne at the shareholders annual meeting. So if only a solicitor can do your case, why not just go straight there? We are not sharks and we do not bite. All of us worth our salt are members of The Association of Personal Injury Lawyers (APIL) and we cannot and will not lie to you. If we do, you have the power to have us struck off.
4. No win no fee is good for you!
It really is.
This system was introduced in the early 2000’s when the government got rid of legal aid for personal injury claims, and to facilitate this, we as lawyers had to become glorified bookmakers. When we speak to clients, from day one we are looking to assess the client’s credibility, look at the evidence that is available and the law that is at play and make an informed decision as to the prospects of success. If we think that our efforts will be rewarded with a win then we will offer to act. If you have driven into a lamp post and want to claim against it (trust me I have had that one) then we will politely decline.
The way it works is this: we will not charge you unless we win.
If we win then we are entitled to be paid for our work. Some of this will come from the other party or their insurance company, but as this government have been lobbied by the insurance industry (41 Conservative MP’s have insurance interests) they have reduced the amount we can recover to below a figure that we could survive on. This can be as low as £500 to conduct a case worth up to £25,000 and I’m sorry but I cannot pay decent, dedicated, educated and experienced staff on that basis.
So whereas previously you would receive 100% of the compensation and damages recovered in the claim, we are now allowed to retain 25% of this towards our costs. This deduction does not apply to all items, for example it is not taken from any future losses or benefits and it can never be exceeded.
Be careful, however, as firms differ in their approach to this deduction. Some will take it across the board whether it is justified or not.
We have seen many firms completely misunderstand this. For example, we as a motorcycle accident company do not take any deduction from the bent metal aspect or the replacement helmet and clothing as we believe this would be counter productive. We would also not be able to sleep at night if we retained money from the cost of medical aids and equipment. I would give up if I had to retain money from an amputee client’s new prosthetic leg towards my costs; leaving them unable to purchase their means of mobility, but others would as they would say the client could apply money from other aspects of compensation.
So as a new client ask the solicitors to set out precisely what will be deducted from where. A good solicitor with nothing to hide will tell you. If they won’t, then as I say, they may have something to hide.
Remember too that this contribution to costs coming from your damages can be taken to effectively reimburse the lawyer for the fees he paid to get your case as described above. Surely it is better if the whole amount available is spent on providing you a service rather than paying for backhanders.
5. Legal Expenses Insurance
In my view one of the greatest, as yet unpunished, mis-selling insurance scandals that would eclipse PPI.
For decades now, we as motorists and riders have received insurance quotes with Legal Expenses Insurance thrown in for thirty quid or so to “protect us” if we have an accident. This is utter nonsense and has merely been a front for the insurer or broker to cream off some profit and ensure that the punter is well and truly hooked to call if they have an accident, giving them the opportunity to flog the case on for profit.
This insurance barely exists at all and the companies involved will just pass on thousands of cases to pet solicitors who would never dream of putting in a bill for a losing case as they would be at risk of having the gravy train not stop at their station. Panel solicitors have consistently outbid each other to secure the work, some going all the way to full prostitution and ownership.
This scandal hasn’t yet broken as it is difficult to say that the customer has lost out. They have still had representation for their claim and have not lost out financially even if I, and others, would question the level of service they received from the pile-it-high sell-it-cheap system.
The scandal may now break, however, as I have seen documentation from solicitors who receive work this way who will still take a 25% deduction from damages as this is buried within the small print.
Again, think about it. You have paid for, or been enticed by having legal expenses insurance within your package. You think that will pay for your legal fees if you need to make a claim. You think that you could instruct any lawyer and their fees would be met in full come what may.
In reality what is likely to happen is that you will ring their number, they will sell you on and pass you to a lawyer who will act on a no win no fee (so they will never pay him anyway!) and will deduct 25% from your damages towards costs regardless.
So what have you insured? Nothing. What do you get in return? Nothing.
The only time this insurance may have some benefit is if your case does not involve injury, just damage, and is a “small claim” of under £10,000 where they may provide some assistance. But this, in my view is on the periphery and almost irrelevant.
6. Repairs. Fully comprehensive or third party? That is the question.
If your bike has been damaged in the accident, you have a choice of how you deal with the repairs. If you have fully comp insurance then your insurance company is contractually obliged to deal with the repairs. They will of course insist on using their repairers and may or may not offer a courtesy bike or car. You will have to pay an excess or have that deducted from any salvage value. It will be important in the subsequent claim for that to be recovered so that any no claims position is reinstated.
If there is any doubt on liability, you should choose the fully comp route as this will inevitably be quicker.
If liability is clear cut, or you want to choose your own repairer, or you do not want to pay an excess, you may choose to go directly against the other party’s insurer on the “you bent it you mend it” basis.
If we are involved we retain control of this aspect by instructing independent engineers (currently around £120-150) to inspect and report so we can discuss with you how to go about repairs. Also this gives control of any salvage if the bike is written off. Some clients want it back and a settlement in lieu of repairs so they can tinker and fix. Some never want to see it again but this way just retains that control.
The decision on which route is best is difficult and has consequences, and if done wrongly can lead to storage, repair and hire charges building up and being irrecoverable in the legal proceedings as you may be criticised for not mitigating your loss….in other words not acting reasonably.
7. Credit Hire.
If you go down the fully comp route your insurers may offer a courtesy bike or car. If you are happy with a CB500 or a Nissan Micra, then fair enough; it will at least keep you mobile.
If you retain control via the third party route then you may be offered a credit hire vehicle. If you accept then, whilst you may have a nice like for like shiny bike to ride or a replacement Ferrari, you may be opening a can of worms that could clog up your claim fatally.
The way the law works is that it is recognised you have been deprived the use of your bike through no fault of your own and if you then just struggled on until it is repaired you could claim compensation for “loss of use”. Courts however have been very miserly in their awards and in the lead case of Hatch v Plant only £10 per day was awarded for a Porsche. However, you can still be found to be “acting reasonably” if you hire another vehicle to keep you going.
The courts however have dealt with many cases where they have set out markers to control the recovery of credit hire charges, which by their nature are often multiples of the “airport” rate of spot hire.
You must therefore be able to show that you needed a replacement, that the rate charged was reasonable, and that it was only hired for a reasonable period. If you take the offer of that shiny Ferrari whilst having a garage full of vehicles you may be left going to court having disclosed all your financial information including bank statements and wage slips, to recover the six figure hire account on behalf of the hire company. This even happens to England International footballers like Darren Bent, who credit hired a DB9 as he wore the no 9 shirt at the time but got dragged along to the Court of Appeal to recover the charges.
So credit hire replacement vehicles can be good, but be careful and don’t just accept what the credit hire company says. Have this decision independently reviewed by your solicitor.
8. What losses can I claim?
The easy answer is that you can recover whatever financial loss flows from the accident. So we have already dealt with repairs and hire but in the bike world we have helmets and leathers.
Any bike lawyer should be able to virtually guarantee to recover 100% of the cost of a replacement helmet on the basis that it must be replaced as a matter of safety. Insurers will always argue for a deduction for betterment, or new for old, with regards to other clothing and accessories, and if the gear is dated or nearing the end of its useful life then this may have to be accepted.
Other financial losses include loss of earnings, medical equipment, travel, physio or other treatments, and the often missed care and services. Here if a partner, relative or friend provides you with gratuitous care during your convalescence then we can recover a discounted commercial rate within your claim. I always take a blank pad with me when visiting seriously injured clients at home at the start of their case so they can compile a care diary setting out who is doing what, when, and for how long.
In any event, if you want to claim it keep the evidence or write it down.
If you have been injured, the law dictates that you can claim compensation in the form of a sum of money to reflect your “pain suffering and loss of amenity”. Technically this is called general damages and the assessment of how much your claim is worth is based on comparing your medical report to previous awards made in court. To help this process, the Judicial College (yes Judges have a college) have summarised previous awards into categories and pulled them together in the snappily titled Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases.
Yours for only £19, this book is on all judges’ benches and sets out ranges of award for various injuries. By the way all the websites that have an “Injury Calculator” function are merely a funky way of presenting this book. It is the legal equivalent of “snake oil”.
In other words, if you believe anyone can accurately value your case before receiving a full and final medical report then I would like to talk to you about some magic beans I have for sale.
Conversely, any numpty doing a modicum of research or spending that £19 could give you a ball park range, so you are not really getting any value from scrolling over a cartoon of a man with pop ups telling you “Whiplash gets you £3,6o0 for a 12 month injury”.
My advice is just to relax and let your injuries settle, then have a medical examination by a reputable doctor and allow your lawyers to then advise you precisely as to the range of awards that are likely for your injury. Remember of course that if no settlement is reached then the award would be assessed by a judge and it is an imprecise science so the best anyone could do would be identify a range of possible awards.
Yep that’s my final tip. All I ask is that you start your claim properly.
It will, if done well, take time for your injuries to settle and for good lawyers to give you precise and accurate advice. So pause and research and think about who you want to look after you. It never ceases to amaze me when we are asked to take over a case that has, in our words, become “distressed”, where often seriously injured bikers are being handled by nefarious firms having landed there through even more nefarious means. I have had catastrophic cases involving amputations and life changing injuries taken to the brink of being destroyed or under-settled because they are in the wrong hands.
At the end of the day, once the accident has happened it is your choice and I urge you to take as much care about the decision about who deals with your case as you would in looking for the best deal on a new telly.
Because of the no win no fee system, you are a powerful buyer and can choose the lawyer that is best for you, not just the first out of the blocks who is prepared to pay the most to get your name.
Lampkin & Co Solicitors
Office address: Newgate House, Broughton Mills Road, Broughton, Chester, CH4 0BY. Telephone: 01244 525725. Vat registration number 736 401 842.