Hi Vis Child on Scooter

 

The issue of whether a pedestrian who was not wearing hi vis should be contributory negligent when hit by a car was recently considered in the case of O’Driscoll v Bundred.


Philip Scarles
Philip Scarles
Solicitor - Health & Injury

On 2 February 2017 at about 6.15 pm, Mr O’Driscoll was walking along Broad Walk, Wilmslow, a suburban street. Carrwood Road is a minor road which joins Broad Walk from the north at an acute angle. The width of Carrwood Road at the junction is 37 metres.

Mr O’Driscoll was walking west along the northern pavement of Broad Walk. As he was crossing Carrwood Road, a car travelling west along Broad Walk went past Mr O’Driscoll. Following that car, Professor Bundred driving in his Mercedes car turned right into Carrwood Road, on the incorrect side of the road, and collided with Mr O’Driscoll. Mr O’Driscoll suffered a serious head injury.

Professor Bundred was convicted of driving without due care and attention. In Mr O’Driscoll’s personal injury claim, Professor Bundred admitted primary liability but alleged contributory negligence, one allegation being that Mr O’Driscoll was not wearing hi-vis clothing.
CCTV was taken from a house adjoining the junction. Mr O’Driscoll was wearing dark clothing. He reached the kerb, proceeded to cross Carrwood Road and took about 8 steps into the road before the collision.

Professor Bundred invited the Judge to draw the inference that Mr O’Driscoll must have known that cars were wont to cut the corner when turning off Broad Walk into Carrwood Road. This was not accepted, but in any event the Judge found that Mr O’Driscoll would have had no reason to suppose that a car would cut the corner anything like the extent that Professor Bundred did when the accident occurred.

As to Professor Bundred’s speed, this was calculated by the police investigator at between 29 and 35 miles an house. The CCTV showed that he was indicating right at the time of the collision, but there was no reliable evidence about when he started to indicate.

The CCTV showed that the junction was illuminated by two street lamps and that Mr O’Driscoll was also illuminated by the lights of the car in front of Professor Bundred.
The Judge rejected Professor Bundred’s submission that Mr O’Driscoll failed to keep a proper look out. Mr O’Driscoll would not have expected to encounter any vehicle travelling from Broad Walk into Carrwood Road until he was approaching the centre line, by which time he was entitled to assume that he had right of way, as rules 8 and 170 of the Highway Code make clear.

The Judge also rejected Professor Bundred’s allegation that Mr O’Driscoll not wearing hi vis clothing was a contributory factor. He was undertaking a regular trip from his workplace to his parked car, walking along a pavement on a residential street. It would be a counsel of perfection to require him to wear different clothing.
The Judge therefore rejected all of Professor Bundred’s allegations of contributory negligence and gave judgment for Mr O’Driscoll for 100% of the value of his claim.

This article was originally published in the April 2020 issue of South East Biker Magazine.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who have suffered injury or bereavement as a result of a road traffic accident.

If you would like to speak to a professional to discuss your case call us today on 0203 551 8500 or use our Contact Us for to arrange a callback at your convenience.

Personal Injury Claim

 

During these unpredictable times, some people, who for no fault of their own, have sustained an injury may think it is too late to investigate if they have a valid claim. Joanna Bailey, Head of our Personal Injury Department says:


Joanna Bailey
Joanna Bailey
Partner - Head of Personal Injury

In most accident cases, the Limitation Act 1980 confirms that you have 3 years’ from date of your accident or knowledge of injury to bring a claim. You must show that you were owed a duty of care by an another individual or organisation; that that duty was breached and that it directly lead to the injury and financial loss you want to claim.

  • This means if you know when your actual accident occurred (which is likely if you were involved in road traffic collision) it you have 3 years from that date to bring a claim;

  • If you are only aware of your injury much later on, then the 3 year time limit runs from then often from when you got a diagnosis. The injury must be significant, attributable in full or part to the breach of duty and you must know who is that you wish to make the claim against. This scenario deals with situations where if you have become unwell and it transpires that you now suffer from a disease as a result of where you worked along time ago like mesothelioma, you can still bring a claim.

Exceptions apply

  • If you were younger than 18 when the accident occurred then the limitation expires on your 21st birthday as long as no one has made a claim on your behalf before as a result of the particular accident.

  • If the injured person lacks mental capacity so that they are unable to either understand or commence a claim, then the 3 year time limit starts when mental capacity is regained. If it is not, then another person can bring a claim on their behalf. They are known as a “Litigation Friend”. Crucially, the original 3 year limitation is applicable if the injured person had capacity at the time of the accident but then losses it.

If your loved one died in the accident their personal representatives can take the matter forward on their behalf. You will need talk to a specialist about this scenario. To keep the claim alive court proceedings need to issued by the end of the relevant limitation otherwise your claim will be statue barred and you will not be able to progress. There is much work to do to prepare a claim to be ready to issue court proceedings and an emphasis under the court rules to try and resolve your matter before the court even become involved.

It is best to get advice early and allow you and your legal team, time to prepare.

As a Legal 500 Directory recognised Personal Injury Team we are ready to help you. In these uncertain times, we remain committed as ever to our clients’ and their cases, continuing to prepare to seek financial redress for the accidents our clients’ have been involved in, on the road, at work, in public places and sometimes, sadly that cause death.

We Can Help

At MW we recognise the need to talk to someone when an accident occurs and to obtain clear advice in a straightforward way. Our team, although small, has over 130 year’s experience in providing clear advice from the start and working with you to secure a just outcome. We are also well connected being able to signpost you to other organisations which can help. Small enough to care, big enough to make a difference.

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a call back at your convenience. Stay safe.

motorcycle

 

We all want our bikes to function at optimum condition at all times. Which is why we spend time and money in maintaining them. But what is the position if a component fails causing injury? A look at the case of Baker v KTM Sportmotorcycle UK Ltd shows how the law works.

Case Background


Philip Scarles
Philip Scarles
Solicitor - Health & Injury

In November 2009 Mr Baker purchased a KTM Supermoto 990 from a dealer second hand. It had been manufactured in around March 2008. He was an experienced motorcyclist and owned 6 motorcycles. On 24 January 2010 he was riding his bike when suddenly the front brake seized. He was thrown off and suffered serious injuries. He sued the manufacturer, alleging that the accident was caused by a defect in the motorcycle, contrary to section 3(1) of the Consumer Protection Act, and / or their negligence.

An expert mechanical engineer for Mr Baker examined the bike and found the front wheel to be stiff, and markings on the disc suggestive of an imbalanced braking system. An expert from a laboratory found deposits on the brake disc assembly that the engineering expert considered to be indicative of galvanic corrosion, and not road salt causing corrosion. He further concluded that system did not appear to have sufficient protection from galvanic corrosion. KTM’s engineer expert examined the bike some 3 years later, finding no stiffness, an absence of corrosion and concluded that the brakes failed due to a failure in maintenance.

The Trial

At the trial a lay witness appeared for Mr Baker who had experienced a similar incident with a KTM bike. KTM called a witness from the design department of Brembo, who had supplied the brake assembly.

The Consumer Protection Act provides that there is a defect if “the safety of the product is not such as persons generally are entitled to expect”. In determining that, all the circumstances are considered. In Mr Baker’s case, guidance was provided by an earlier case of Ide v ATB Sales Ltd, which concerned an injury to a mountain bike rider, and the issue in that case of whether the fracture to the handlebar occurred because the handlebar was defective or whether it fractured when the rider fell from his bike. In Ide, the Judge found that the handlebar was defective and had fractured instantaneously and, crucially, not as a result of the fall.

A Successful Outcome

At the trial the Judge found that that the cause of the seizing of the brakes was galvanic corrosion which had happened “as a result of a design defect combined with faulty construction or the use of inappropriate or faulty materials” which “was the probable cause of the brakes seizing.” Further, that the “defects in the braking system” meant that “the safety in the braking system” on the bike was “not such as persons generally are entitled to expect” they were defects within the Act and that they caused the accident and resulting injuries to Mr Baker. Mr Baker’s claim was successful.

This article was originally published in the December 2019 issue of South East Biker Magazine.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who have suffered injury or bereavement as a result of a faulty or defective product.

If you would like to speak to a professional to discuss your case call us today on 0203 551 8500 or use our Contact Us for to arrange a callback at your convenience.

NHS

 


Denise McKeown
Denise McKeown
Partner - Health & Injury

A coroner has ruled that the death of one week old baby, Harry Richford, was “wholly avoidable” and “contributed to by neglect.”

The coroner, Christopher Sutton-Mattocks, identified a number of failings in the care provided to Harry and his mother during his delivery at Queen Elizabeth the Queen Mother Hospital in Margate. The hospital, which is managed by the East Kent Hospitals NHS Trust has indicated that they accept the coroner’s conclusions and findings and have apologised to Harry’s parents for the devastating loss of their son. They also accepted that the care which had been provided fell below an acceptable standard.

More Cases being Investigated

It has subsequently transpired that there may have been at least seven preventable baby deaths at East Kent Hospitals NHS Trust and twenty-six maternity cases are currently being investigated. The Trust was placed into special measures in 2014 following an inspection by the Care Quality Commission (CQC) which rated its care, including maternity services, as inadequate.

This follows investigations into maternity services at Shrewsbury and Telford Hospital NHS Trust and University Hospitals of Morecambe Bay NHS Foundation Trust which also identified unnecessary deaths during delivery and babies sustaining permanent brain damage after being deprived of oxygen during birth, as a result of substandard care.

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone" and our specialist clinical negligence team have a wealth of experience of cases involving substandard health care.

For a free initial assessment of whether you might have a valid claim, or to discuss your case with one of our dedicated professionals call us on 020 3551 8500 or  use our Contact Us form to arrange a call back at your convenience


Shoulder Surgery

 


Nisha Sharma
Nisha Sharma
Partner - Health & Injury

Recent Press coverage has highlighted the plight of 217 patients of Mr Habib Rahman, an orthopaedic surgeon at Spire Parkway Hospital in Solihull, Birmingham.

The 217 patients all had shoulder manipulation surgery and the concern is that it may have been carried out unnecessarily and that Mr Rahman wasn’t qualified to be carrying out that type of surgery.   The patients have been offered an independent assessment by another orthopaedic surgeon, a process which is ongoing.  There is also concern over a third surgeon, Mr Amir Salama over the shoulder surgeries he too has been carrying out.

History Repeating Itself

I worked on many of the cases of another Spire Parkway consultant, Mr Ian Paterson.  Mr Paterson was a breast surgeon who was found to have carried out many hundreds of unnecessary and inappropriate surgeries.  His case was so serious that he was sentenced to 20 years in prison. 

The issues in these cases were complex and unimaginably horrific for the patients and victims.  It is extremely worrying that this has happened again at the same hospital.

I am glad that Mr Paterson’s patients did eventually get justice even though it was a struggle.  I sincerely hope that the patients of Mr Rahman are afforded the same.

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone" including those patients who may have been affected by this or other patient recalls.

Nisha Sharma is a specialist Clinical Negligence solicitor with a wealth of experience having previously acted for many women in the Ian Paterson litigation.  Nisha can travel to see her clients wherever they may be based in the UK.  

If you have been affected by this or any other patient recall don’t delay, call us today on 0203 551 8500 or use our Contact Us form to arrange a callback at your convenience.

Young Carer

Carers Trust draws our attention to Young Carers Awareness Day which is an annual event, led by them and this year takes place on 30 January 2020.


Toni Bedward
Toni Bedward
Solicitor

They point out that across the UK thousands of young people help to look after someone in their family, or a friend, who may have been injured in an accident, ill, disabled or misuses drugs or alcohol.

Their recent research shows that one in five secondary school children may be a young carer. For many, their caring journey begins at a much younger age. Caring for someone can be very isolating, worrying and stressful. For young carers, this can negatively impact on their experiences and outcomes in education, having a lasting effect on their life chances.

As specialists in representing Claimants following an accident, our experienced team know the importance of care provided by young and old alike from family and friends. The law recognises that this has a monetary value as without this support you would need pay for professional help. The monetary value of this for claim is generally claimed at the local professional rate less 25% to account for this help being provided by a loved one. Documenting that help is crucial from assisting with getting the injured person to treatment appointments, tidying the home and even putting the bins out if, the injured person would normally do this.

Find out more about the work of Carers Trust and Young Carers Awareness Day 2020

We Can Help

At MW we recognise the efforts and contribution of family and friend’s in caring for you when things go wrong. Our Head of Department, Joanna Bailey, and our team have years of experience in acting for client’s entitled to make this type of claim. We are "small enough to care, big enough to make a difference".

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a call back at your convenience.

car driving europe

The UK leaves the European Union (EU) on 31 January 2020. 


Joanna Bailey
Joanna Bailey
Partner - Head of Personal Injury

At MW Solicitors we recognise the need to ensure you are on the road legally and covered by your insurance.  You may have received an email or letter from your insurer.  These are some of the questions that you may now be asking yourself.

  • Will I still be able to use my insurance to drive in the EU member states after Brexit?
  • Do I need to tell my insurer if I plan to drive in an EU member state after Brexit?
  • I regularly drive my vehicle in the EU. Will I need to tell my insurer every time I travel after Brexit?
  • Will I need to display a GB sticker on my car?
  • Are there any documents that I’ll need to take with me if I’m planning to drive in an EU member state after Brexit?
  • What is a green card and how do I get one? Does it cost anything?
  • What happens if I travel without a green card?
  • Do I need to let my insurers know which countries I’ll be visiting? Do the rules vary depending on the country I plan to travel to?
  • Will I be able to use a green card issued by my insurer to rent or borrow a vehicle in an EU member state?
  • What happens if I’m involved in an accident abroad and I might be wholly or partly responsible? Should I contact my insurers?

We recommend that if you are considering driving in the European Union after 23:00 on 31/01/2020 you should contact your own insurers to discuss your concerns with them.

Be safe.  Be confident that you have all the necessary cover and documentation that your UK personal car insurers require for you and your family to continue enjoying travelling by car in the EU after BREXIT.  Contact them in advance of any trip made after the 31/01/2020.

We Can Help

At MW we recognise the need to ensure you are on the road legally and covered by your insurance. Our Head of Department, Joanna Bailey, and our team have years of experience in acting for client’s following an accident. We are "Small enough to care, big enough to make a difference".

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a call back at your convenience.

Brew Monday Cups of Tea

 

MW Solicitors are delighted to support “Brew Monday” on Monday 20th January 2020.


Toni Bedward
Toni Bedward
Solicitor

This event encourages us all to “reach out to people who might be feeling lonely”. As the organisers put it this is a day where “celebrit-teas join thousands of people coming together for a cuppa, a chat and to banish the winter blues”.

‘Brew Monday’ is an important awareness day to encourage people to put the kettle on and share a few minutes with those around us to have a conversation, make us feel better and manage the highs and lows of life. We are often unaware of who may benefit the most from getting a few things off their mind over a simple hot drink.

Mental Health and Personal Injury

The importance of mental health is now much better recognised in the law than even a few years’ ago.  A claim for a recognised mental health condition which has come about as the result of an accident without a physical injury being sustained, is now established law.

Life Changing Injuries Affect Mental Health

When an accident happens it is sudden and unexpected as are the injuries that occur, sometimes life changing. Those affected will need extra assistance with their usual daily tasks, may require time off work or they may suffer changes to their body or mind that are difficult to digest. All of these issues can culminate in a person feeling stressed, frustrated or lonely.

Thankfully, we are able to assist our client’s in arranging assessment and treatment by medical experts for both mental and physical issues to try and put them back in the position they were in had the accident not occurred. We recognise the importance of being able to discuss concerns is vital not only for our client’s, but for us and our colleagues alike in a demanding working world.

Join us and get the kettle on.  If you think we can help you or someone you love, let us know.

We Can Help

At MW we recognise the need to adjust mentally to your injury and seek treatment to assist you. Our Head of Department, Joanna Bailey, and our team have years of experience in acting for client’s affected with mental health injury following an accident. We are "small enough to care, big enough to make a difference".

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a call back at your convenience.

 

 

family

 

As part of National Grief Awareness Week, Personal Injury trainee solicitor Ian Iliopoulos comments on seeking financial security following the death of a loved one in an accident or as a result of a disease.


Ian Iliopoulos
Ian Iliopoulos
Trainee Solicitor

Losing a loved one is never easy. It can be even harder when they have died unexpectedly as a result of an accident and especially when they leave behind loved ones who are financially dependant on them.

If a person is involved in a fatal accident that was not their fault, their dependants can usually bring a claim against the party whose negligence caused the accident. A claim under the Fatal Accidents Act 1976 allows for dependents to bring claims for lost income, funeral expenses, and bereavement.

However, if a person suffers injuries as a result of their accident and then later dies as a result of those injuries they may still be entitled to compensation. Under the Law Reform (Miscellaneous Provisions) Act 1934 there are two main scenarios:

  1. A person has already started to bring a personal injury claim but dies before these are complete; or

  2. A person would have had the right to bring a personal injury claim had he not died.

    In both these cases, the estate of the deceased can bring, or continue to bring, a personal injury claim on their behalf. Therefore, their estate may be able to bring a claim to recover:

    1. General Damages

      These are damages for pain, suffering and loss of amenity

    2. Special Damages

      These are damages for past loss of earnings, cost of care, medical expenses, cost of equipment, travel expenses, etc.

Although any money recovered will never replace a lost family member, it may help those left behind during times of financial uncertainty.

This is a complex area of law and while there is some overlap between a claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, care must be take when deciding which route to pursue. Here at McMillan Williams, we have the expertise to guide you through this challenging process at what is undoubtedly a difficult time.

We Can Help

At MW we recognise the need to balance your grief with progressing the claim and have years of experience in advising bereaved families of their rights. Our Head of Department, Joanna Bailey, with years of experience in acting for bereaved families successfully acted for a bereaved family achieving an award approved by the High Court of £710,000.00 in 2013.  Small enough to care, big enough to make a difference.

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a callback at your convenience.

Bereavement Damages

 

As part of National Bereavement Awareness Week, Personal Injury specialist Ian Latimer comments on the unfairness of bereavement damages awarded following the death of a loved one in an accident or as a result of a disease.


Ian Latimer
Ian Latimer
Solicitor

Whilst no amount of money can compensate for the loss of a loved one, £12,980.00 can be claimed as bereavement damages for the normal grief reaction following a fatal accident.  This sum is in addition to any award for financial loss.

Under the Fatal Accident Act 1976, only a spouse or civil partner of the deceased or the parents of a child under the age of 18 can claim, and this sum is shared between all those eligible. Where the parents of a deceased child were unmarried at the time of the child’s birth, only the child’s mother is eligible for the award. This was somewhat of an outdated approach in 1976 let alone in the 21st century but remains the position.

Although the government has proposed that cohabiting partners should also be eligible it is subject to the claimant having lived with the deceased for at least 2 years as the deceased’s husband, wife or civil partner.

Parliament’s Human Rights Committee has suggested that eligibility should extend to ‘two people living together in an enduring relationship’  and that the requirement to have been living together for 2 years should be removed as it is not a fair indicator of a permanent and loyal relationship.

We agree and are of the view that the reforms should be far more radical and far-reaching so that as in Scotland other relatives are eligible, such as the child who loses a parent, the parent of an adult child, brothers and sisters, grandparents and so on.

Further as in Scotland where there have been awards of up to £80,000.00 the bereavement award should not be a fixed amount but should be assessed according to the circumstances of each case.

We Can Help

At MW we recognise the need to balance your grief with progressing the claim and have years of experience in advising bereaved families of their rights. Our Head of Department, Joanna Bailey, with years of experience in acting for bereaved families successfully acted for a bereaved family achieving an award approved by the High Court of £710,000.00 in 2013.  Small enough to care, big enough to make a difference.

If you would like to talk to us about your case, call us today on 020 3551 8500 or use our Contact Us page to arrange a callback.

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