Accident claim help
Discussion
Evening everyone, looking for a little advice if possible. Apologies in advance for the long post but I'll try to be brief.
December 4th 2019, 10am. Mother in Law (67) cycling home from primary school breakfast club she helps to run. White van man knocks her off her bike leaving her in a bad way.
Result is 10 days in ICU in a coma, plus another 2 and a bit weeks in hospital. Fractured skull, bleeds on brain, tracheotomy, various other scrapes.
Home early Jan. Physically, reasonably good health. Mentally, short term memory was shot, but slowly improving. Numerous follow up appointments in next month.
Police visited yesterday to say white van man is to be charged. He's admitted he was looking at paperwork on passenger seat and didn't see her.
Police have said we need to engage solicitors and this is where we need help.
No idea what or who we should be looking at. Yorkshire based. Has anyone got any recommendations and what the next steps should be?
Thanks in advance.
December 4th 2019, 10am. Mother in Law (67) cycling home from primary school breakfast club she helps to run. White van man knocks her off her bike leaving her in a bad way.
Result is 10 days in ICU in a coma, plus another 2 and a bit weeks in hospital. Fractured skull, bleeds on brain, tracheotomy, various other scrapes.
Home early Jan. Physically, reasonably good health. Mentally, short term memory was shot, but slowly improving. Numerous follow up appointments in next month.
Police visited yesterday to say white van man is to be charged. He's admitted he was looking at paperwork on passenger seat and didn't see her.
Police have said we need to engage solicitors and this is where we need help.
No idea what or who we should be looking at. Yorkshire based. Has anyone got any recommendations and what the next steps should be?
Thanks in advance.
Sorry to hear that.
Leigh day are the injury solicitors for British cycling, so will have experiance.
I made a claim before for similar with Slater Gordon, who got the job done.
Perhaps her home insurance has legal cover?
That said they should take such a case on no win no fee. So you could give them a call and get an idea and go from there.
I am not a legal professional and offer advice from personal experience in the same situation
Leigh day are the injury solicitors for British cycling, so will have experiance.
I made a claim before for similar with Slater Gordon, who got the job done.
Perhaps her home insurance has legal cover?
That said they should take such a case on no win no fee. So you could give them a call and get an idea and go from there.
I am not a legal professional and offer advice from personal experience in the same situation
Sorry to hear about what’s happened, OP.
Legal expenses insurance (LEI) can be a good starting point, but it will likely be a panel firm and with this level of injury, you need to ensure the actual solicitor who is dealing has the right expertise, ie a solicitor with experience of traumatic brain injuries. At this early stage, it is not possible to understand what the final prognosis will be. Hopefully she will go on to make a really good recovery, but if there are any longer term issues it can be a slow process to understand what the future will hold. Ensuring you are partnered up with the right person to advise you can be very important.
One advantage of LEI is that the conditional fee agreement (‘no win, no fee’) entered into may not charge a success fee, which basically means that it is possible to have a 100% compensation guarantee. It is a safe way of proceeding from a legal cost point of view, but as I said on another thread recently, obtaining 90% of a higher settlement amount is obviously better than receiving 100% of a much lower amount. The cheapest option may not necessarily be the best.
The emphasis with cases like this is not just about the financial impact (compensation) either. The initial (and longer term) priority is rehabilitation and ensuring that everything that is needed is put in place. The 2015 rehabilitation code is of relevance here. Basically, any instructed solicitor should be liaising with the van driver’s insurance company to get a brain injury case manager appointed as soon as possible. A case manager’s involvement is separate from the claims process and the case manager will have a medical background, often as a nurse or an occupational therapist. The rehabilitation code is there to encourage both sides to focus on rehabilitation whilst any liability (fault) investigations are ongoing. The Case manager would then do a home visit, understand more about the specifics of the injuries, and the immediate needs, together with what is happening in terms of statutory services, for example, NHS follow-up. The Case manager will then identify anything that can be done in addition to this, whether it be access to private treatment where there are long waiting lists or insufficient resources, aids and equipment to help at home, assistance with travel to/from medical appointments and things like that.
Early intervention with the right case manager can result in a better overall recovery. This is in the interest of all parties and should therefore be a priority.
In terms of LEI, as mentioned this is often attached to home insurance. It can also be attached to car insurance and/or other types of insurance, but typically only where the insured car is involved (in terms of motor insurance), but it is worth asking just to cover all bases. If such a policy exists, that could be a useful starting point. You could arrange to meet with the solicitor face-to-face and the initial meeting should be free with no obligation to proceed. You can then get a feel for whether he or she seems to be the right person to assist.
If there is no LEI in place, that is absolutely fine. There are numerous firms who can assist and some examples have been mentioned in this thread already. A lot of firms will enter into a conditional fee agreement where a success fee is charged and may offer a 75% compensation guarantee. Don’t be afraid to see if you can push for higher, e.g. 80-90%, but don’t become too fixated on that either, as having the right person with the right level of expertise/service could make the whole process much easier to deal with. A claim involving a head injury could well last at least two years, unless the injured person chooses to settle earlier.
I know it will not be an immediate priority, but it is sensible to keep track of all financial expenses. This will include things like travel expenses to and from the hospital, including parking charges. Anything that is being incurred as a specific result of the incident should be noted down and receipts kept where possible. It can also be helpful to take photographs periodically of any visible injuries to show how they progress overtime. It can also be very helpful to keep a diary (starting now and including as much info as can be remembered about the past few weeks) detailing all of the help and assistance that is being provided on a daily basis by close family members/friends. The more detail, the better, as it will show exactly what is happening and why it is needed. This can then be helpful to the solicitors and, in certain cases, the medical experts that are instructed to prepare reports on the injuries.
In terms of locating solicitors, you could try looking at the brain injury charity, Headway. They are a national charity and have local branches. You should be able to find details of the local branch and they may have links to firms that they know and work with. There is also the Association of personal injury lawyers (APIL). They have a “find a solicitor“ on their website and so does the law society, although the search facility can throw up a whole range of random firms sometimes.
You may wish to speak to a few firms to see who you feel best fits and take it from there. If you want any more information, feel free to message me privately and I will try and give you some pointers.
I hope this helps.
PS I’m posting this without proofreading, as my battery is about to run out and I have no charger to hand!
Legal expenses insurance (LEI) can be a good starting point, but it will likely be a panel firm and with this level of injury, you need to ensure the actual solicitor who is dealing has the right expertise, ie a solicitor with experience of traumatic brain injuries. At this early stage, it is not possible to understand what the final prognosis will be. Hopefully she will go on to make a really good recovery, but if there are any longer term issues it can be a slow process to understand what the future will hold. Ensuring you are partnered up with the right person to advise you can be very important.
One advantage of LEI is that the conditional fee agreement (‘no win, no fee’) entered into may not charge a success fee, which basically means that it is possible to have a 100% compensation guarantee. It is a safe way of proceeding from a legal cost point of view, but as I said on another thread recently, obtaining 90% of a higher settlement amount is obviously better than receiving 100% of a much lower amount. The cheapest option may not necessarily be the best.
The emphasis with cases like this is not just about the financial impact (compensation) either. The initial (and longer term) priority is rehabilitation and ensuring that everything that is needed is put in place. The 2015 rehabilitation code is of relevance here. Basically, any instructed solicitor should be liaising with the van driver’s insurance company to get a brain injury case manager appointed as soon as possible. A case manager’s involvement is separate from the claims process and the case manager will have a medical background, often as a nurse or an occupational therapist. The rehabilitation code is there to encourage both sides to focus on rehabilitation whilst any liability (fault) investigations are ongoing. The Case manager would then do a home visit, understand more about the specifics of the injuries, and the immediate needs, together with what is happening in terms of statutory services, for example, NHS follow-up. The Case manager will then identify anything that can be done in addition to this, whether it be access to private treatment where there are long waiting lists or insufficient resources, aids and equipment to help at home, assistance with travel to/from medical appointments and things like that.
Early intervention with the right case manager can result in a better overall recovery. This is in the interest of all parties and should therefore be a priority.
In terms of LEI, as mentioned this is often attached to home insurance. It can also be attached to car insurance and/or other types of insurance, but typically only where the insured car is involved (in terms of motor insurance), but it is worth asking just to cover all bases. If such a policy exists, that could be a useful starting point. You could arrange to meet with the solicitor face-to-face and the initial meeting should be free with no obligation to proceed. You can then get a feel for whether he or she seems to be the right person to assist.
If there is no LEI in place, that is absolutely fine. There are numerous firms who can assist and some examples have been mentioned in this thread already. A lot of firms will enter into a conditional fee agreement where a success fee is charged and may offer a 75% compensation guarantee. Don’t be afraid to see if you can push for higher, e.g. 80-90%, but don’t become too fixated on that either, as having the right person with the right level of expertise/service could make the whole process much easier to deal with. A claim involving a head injury could well last at least two years, unless the injured person chooses to settle earlier.
I know it will not be an immediate priority, but it is sensible to keep track of all financial expenses. This will include things like travel expenses to and from the hospital, including parking charges. Anything that is being incurred as a specific result of the incident should be noted down and receipts kept where possible. It can also be helpful to take photographs periodically of any visible injuries to show how they progress overtime. It can also be very helpful to keep a diary (starting now and including as much info as can be remembered about the past few weeks) detailing all of the help and assistance that is being provided on a daily basis by close family members/friends. The more detail, the better, as it will show exactly what is happening and why it is needed. This can then be helpful to the solicitors and, in certain cases, the medical experts that are instructed to prepare reports on the injuries.
In terms of locating solicitors, you could try looking at the brain injury charity, Headway. They are a national charity and have local branches. You should be able to find details of the local branch and they may have links to firms that they know and work with. There is also the Association of personal injury lawyers (APIL). They have a “find a solicitor“ on their website and so does the law society, although the search facility can throw up a whole range of random firms sometimes.
You may wish to speak to a few firms to see who you feel best fits and take it from there. If you want any more information, feel free to message me privately and I will try and give you some pointers.
I hope this helps.
PS I’m posting this without proofreading, as my battery is about to run out and I have no charger to hand!
Edited by Cudd Wudd on Wednesday 29th January 20:18
Thanks all, especially Cudd for the detailed reply. I’ve printed this out and we will sit down as a family over next few days to discuss.
We are a bit behind with things to be honest, never thought about keeping track of stuff following the accident, it’s only since the police visit yesterday that we’ve started looking into the next steps.
We are a bit behind with things to be honest, never thought about keeping track of stuff following the accident, it’s only since the police visit yesterday that we’ve started looking into the next steps.
hacksaw said:
Thanks all, especially Cudd for the detailed reply. I’ve printed this out and we will sit down as a family over next few days to discuss.
We are a bit behind with things to be honest, never thought about keeping track of stuff following the accident, it’s only since the police visit yesterday that we’ve started looking into the next steps.
My pleasure and very happy to help. You all will of course had many other things to deal with and focus on, so not at all surprising that these things haven't crossed your minds.We are a bit behind with things to be honest, never thought about keeping track of stuff following the accident, it’s only since the police visit yesterday that we’ve started looking into the next steps.
Best of luck with it all and hope all goes well with the recovery.
GT72 said:
PH really is full of s
t 95% of the time, but posts like this remind me why I keep coming back. Well done Cudd Wudd, great post.
Many thanks GT72 t 95% of the time, but posts like this remind me why I keep coming back. Well done Cudd Wudd, great post.
It’s nice to be able to provide some assistance where I can, just like I see many other posters do on other topics I know nothing about
An excellent post Cudd.
One thing which springs to mind though is was she wearing a helmet? With those injuries, it sounds like perhaps not and if so, don't be surprised if the insurers for the van driver look to reduce any damages for her own contributory negligence - 25% would be about the norm for not wearing a helmet, much like not wearing a seatbelt.
One thing which springs to mind though is was she wearing a helmet? With those injuries, it sounds like perhaps not and if so, don't be surprised if the insurers for the van driver look to reduce any damages for her own contributory negligence - 25% would be about the norm for not wearing a helmet, much like not wearing a seatbelt.
Nezquick said:
An excellent post Cudd.
One thing which springs to mind though is was she wearing a helmet? With those injuries, it sounds like perhaps not and if so, don't be surprised if the insurers for the van driver look to reduce any damages for her own contributory negligence - 25% would be about the norm for not wearing a helmet, much like not wearing a seatbelt.
Wearing a seatbelt is a legal requirement, a helmet on a pushbike is not. There may well be a deduction for contributory negligence, but nothing like 25% I suspect. One thing which springs to mind though is was she wearing a helmet? With those injuries, it sounds like perhaps not and if so, don't be surprised if the insurers for the van driver look to reduce any damages for her own contributory negligence - 25% would be about the norm for not wearing a helmet, much like not wearing a seatbelt.
Given the scale of the injuries, I'd absolutely go the solicitor route. The fact that a conviction is being pressed should make things much easier!
It might be worth looking at the form that's sent to the insurers for lower value claims - https://www.justice.gov.uk/courts/procedure-rules/.... That'll give you an idea of what might be asked.
Even then, it's not a legal requirement, and it has no bearing on the accident, only the aftermath. Surely the legal principle of taking your victims as you find them applies? (i.e. if you punch someone, and due to some prexisting medical condition they die, it's still murder). May as well argue that an insurance payout should be reduced because a motorist wasn't wearing a helmet...
It might be worth looking at the form that's sent to the insurers for lower value claims - https://www.justice.gov.uk/courts/procedure-rules/.... That'll give you an idea of what might be asked.
Pegscratch said:
Agreed. I'd anticipate something much closer to 5-10% and even then it's only a possibility.
And that's assuming she wasn't wearing a helmet - it's a collision with a motor vehicle, a bit of plastic and foam isn't necessarily going to prevent head injuries.Even then, it's not a legal requirement, and it has no bearing on the accident, only the aftermath. Surely the legal principle of taking your victims as you find them applies? (i.e. if you punch someone, and due to some prexisting medical condition they die, it's still murder). May as well argue that an insurance payout should be reduced because a motorist wasn't wearing a helmet...
Edited by Solocle on Friday 31st January 15:36
Solocle said:
And that's assuming she wasn't wearing a helmet - it's a collision with a motor vehicle, a bit of plastic and foam isn't necessarily going to prevent head injuries.
Even then, it's not a legal requirement, and it has no bearing on the accident, only the aftermath. Surely the legal principle of taking your victims as you find them applies? (i.e. if you punch someone, and due to some prexisting medical condition they die, it's still murder). May as well argue that an insurance payout should be reduced because a motorist wasn't wearing a helmet...
Not wanting to distract from the serious business that the OP needs to get answers to. But what caused the accident will determine liability, & the injury will determine damages. People had their damages reduced for not wearing a seatbelt, when they were not compulsory.The highway code is relevant for criminal and civil law, even when non compliance is not an offence. e.g. Even then, it's not a legal requirement, and it has no bearing on the accident, only the aftermath. Surely the legal principle of taking your victims as you find them applies? (i.e. if you punch someone, and due to some prexisting medical condition they die, it's still murder). May as well argue that an insurance payout should be reduced because a motorist wasn't wearing a helmet...
https://www.hja.net/does-not-wearing-a-helmet-affe...
Edited by Graveworm on Friday 31st January 15:47
Many thanks Nezquick
Just to add in reference to contributory negligence, in case it helps the understanding here, it will all depend on the specifics of the case. There is a link above which contains some useful information and this link has a summary of some cases that have gone before the court and summarises the outcomes: https://www.google.co.uk/amp/s/www.weightmans.com/...
I mentioned the 2015 rehabilitation code above. This is separate from the litigation process, i.e. it does not form part of the claim/evidence that would go before the court, unless the parties agree that such evidence should be provided to the “medico-legal experts“ (that is experts who are engaged to prepare reports commenting on injuries sustained, any past medical history of relevance, prognosis (likely recovery) and any recommendations that may assist with the recovery etc. Such experts will not treat the individual claimant and, whilst they may be engaged individually by either side or on a joint basis, they must remain independent of the instructing party and their overriding duty is always to the court and their evidence must reflect this).
I mentioned a case manager becoming involved under the rehabilitation code. The case manager should not be concerned with liability. The whole point is to try and get rehabilitation in place at the earliest opportunity. Often in cases such as this, the insurance company may be reliant on the police to disclose information to them for the insurer to then determine whether or not the insured driver is fully negligent. However, full documentation from the police will not be released until the police/CPS side of things has concluded so as not to jeopardise their investigation/any separate proceedings. This can take several months or longer.
An insurer may well appreciate it is highly likely that the insured driver was negligent, but they may not be able to assess the overall position without seeing all of the evidence. For example, “primary liability“ may well attach to the vehicle driver, but any factors that might be relevant to “contributory negligence“ may not be possible to determine straight away. I would expect in such cases that the motor insurer agrees to deal with things on a “without prejudice“ basis in order to get things moving, unless there is compelling initial evidence to suggest that this would not be appropriate. Certainly based on the brief information provided by the OP, I would expect an insurer to engage in the process and agree the instruction of an appropriate case manager (assuming this is what the claimant (injured party) wishes to happen) as quickly as possible.
The protocol that governs claims of this nature will entail any solicitor instructed on behalf of the claimant to send a letter of claim to the relevant insurer, assuming one is identified. The insurer will then have an initial 21 day period in which to acknowledge the letter of claim. They will then have a further three month period in which to confirm the liability position, although if the police/CPS side of things is still ongoing at that juncture, it is highly likely this period will be exceeded. This is generally fine provided the insurer is engaging with the process and being alive to the likely outcome that will follow. What I mean by this is that the insurer is helping look at the rehabilitation side of things, together with any immediate financial difficulties that may arise from the injuries. For example, if a claimant was in employment and suddenly could not work, an initial partial payment may be appropriate at an early stage to take account of the financial pressures. Such financial pressures could well have a detrimental impact on the claimant by adding additional stress on top of injuries sustained and the psychological impact arising from injuries like this can often be very significant. Whilst a loss of earnings claim appears unlikely here, the nature of the injuries sustained could well impact on finances in different ways, including if loved ones are having to change their usual circumstances in order to provide any help and support that is required during the initial stages of the recovery.
As the engagement of a case manager under the rehabilitation code is separate from the litigation process, any finding of contributory negligence will not be relevant to the involvement of the case manager here. For example, if there is going to be a clear finding of contributory negligence, which I am certainly not saying would be the case here (this will depend on the actual evidence specific to the claim), and say that was assessed at 25%, any treatment costs pursued via the claim itself would only be recoverable at 75% of the cost. However, if a case anager recommended such treatment and the insurer agrees to fund it under the rehabilitation code, as it is separate from the claims process, there will be no such deduction and the total cost of the treatment would likely be funded by the insurer direct to the treatment provider.
As such, engaging in the rehabilitation process at the earliest opportunity is often very sensible. It can ensure that access to treatment/other recommendations is achieved as quickly as possible, whilst also protecting against the risk of deductions that might occur within the claims process in appropriate cases.
In a case like this (‘(wo)man vs. machine’), it is likely the insurer will be alive to the fact that primary liability could attach to the vehicle driver. However, they will likely look at all evidence to see whether there are any factors that could be relevant to the individual claimant. The use (or lack of) cycle helmet could be relevant here, as could the overall visibility of a claimant. For example, if the collision had happened during the middle of the night and/or during adverse weather, they may consider whether the claimant was wearing bright/reflective clothing and/or using bike lights. In all cases, they may also consider the speed or positioning of the claimant. A claimant riding during the middle of the night, down the middle of the road, without any lights, helmet or reflective clothing, could feasibly establish primary liability against the vehicle driver (e.g. the driver was equally or more reckless), but may have to accept a deduction for factors that may have helped prevent the collision from occurring in the first place and/or may have reduced the extent of the injuries sustained.
In reference to the seatbelt example above, the likely outcome that would occur if a case involving an unrestrained car passenger went before the court is that there would be a 25% deduction if the use of a seatbelt would have prevented the injuries entirely; a 15% reduction if the use of a seatbelt would have reduced the extent of the injuries; and no reduction if the use of the seatbelt would have made no difference whatsoever. The parties may well agree a different reduction between them, but the likelihood is that the court would either apply a 25%, 15% or no deduction based on previous case law. I have seen cases where 10% has been agreed between the parties without involving the court, as the parties may well appreciate that the likely outcome at court would be between say 0% and 15%, so they agree a compromise to reflect “litigation risk“ on both sides.
As the incident described by the OP occurred at ~10 am, assuming there were no issues with road positioning or other visibility, the insurer may well look at whether or not a cycle helmet was worn and, if not, whether it would have made a difference. However, there are no hard and fast rules here. In appropriate cases, it can come down to what the medico-legal experts and/or any liability experts, such as accident reconstruction experts, say in their evidence, and then how the parties assess the litigation risk as to what a judge may decide upon hearing the evidence at trial where judgment would be given. This can be very much come down to how the experts and other witnesses come across during live evidence and how a judge may interpret the same, so it is all a balancing act on behalf of the parties.
However, when the specifics of the mechanism of the collision are looked at, if the overall evidence comes out that the use of a cycle helmet will not have made a difference, then no deduction should follow. A cyclist is obviously highly vulnerable in a collision with a motor-vehicle. The point of impact, speed of the motor-vehicle, and how the claimant lands following the collision can all be relevant. I have seen cases where cyclists have been wearing helmets, but the use of them have been rendered obsolete due to the overall severity of the collision. I have also seen cases where the expert evidence has come back that a helmet has helped reduced the injuries, but it all comes down to the specifics of each case.
Of course, all of this may not be relevant in the individual circumstances giving rise to the OP’s query, and I have rambled on so long I’m not even entirely sure whether I have answered any questions that may have arisen in other posts, but hopefully this will be of some help to someone, somewhere...if you got this far, thank you!
Just to add in reference to contributory negligence, in case it helps the understanding here, it will all depend on the specifics of the case. There is a link above which contains some useful information and this link has a summary of some cases that have gone before the court and summarises the outcomes: https://www.google.co.uk/amp/s/www.weightmans.com/...
I mentioned the 2015 rehabilitation code above. This is separate from the litigation process, i.e. it does not form part of the claim/evidence that would go before the court, unless the parties agree that such evidence should be provided to the “medico-legal experts“ (that is experts who are engaged to prepare reports commenting on injuries sustained, any past medical history of relevance, prognosis (likely recovery) and any recommendations that may assist with the recovery etc. Such experts will not treat the individual claimant and, whilst they may be engaged individually by either side or on a joint basis, they must remain independent of the instructing party and their overriding duty is always to the court and their evidence must reflect this).
I mentioned a case manager becoming involved under the rehabilitation code. The case manager should not be concerned with liability. The whole point is to try and get rehabilitation in place at the earliest opportunity. Often in cases such as this, the insurance company may be reliant on the police to disclose information to them for the insurer to then determine whether or not the insured driver is fully negligent. However, full documentation from the police will not be released until the police/CPS side of things has concluded so as not to jeopardise their investigation/any separate proceedings. This can take several months or longer.
An insurer may well appreciate it is highly likely that the insured driver was negligent, but they may not be able to assess the overall position without seeing all of the evidence. For example, “primary liability“ may well attach to the vehicle driver, but any factors that might be relevant to “contributory negligence“ may not be possible to determine straight away. I would expect in such cases that the motor insurer agrees to deal with things on a “without prejudice“ basis in order to get things moving, unless there is compelling initial evidence to suggest that this would not be appropriate. Certainly based on the brief information provided by the OP, I would expect an insurer to engage in the process and agree the instruction of an appropriate case manager (assuming this is what the claimant (injured party) wishes to happen) as quickly as possible.
The protocol that governs claims of this nature will entail any solicitor instructed on behalf of the claimant to send a letter of claim to the relevant insurer, assuming one is identified. The insurer will then have an initial 21 day period in which to acknowledge the letter of claim. They will then have a further three month period in which to confirm the liability position, although if the police/CPS side of things is still ongoing at that juncture, it is highly likely this period will be exceeded. This is generally fine provided the insurer is engaging with the process and being alive to the likely outcome that will follow. What I mean by this is that the insurer is helping look at the rehabilitation side of things, together with any immediate financial difficulties that may arise from the injuries. For example, if a claimant was in employment and suddenly could not work, an initial partial payment may be appropriate at an early stage to take account of the financial pressures. Such financial pressures could well have a detrimental impact on the claimant by adding additional stress on top of injuries sustained and the psychological impact arising from injuries like this can often be very significant. Whilst a loss of earnings claim appears unlikely here, the nature of the injuries sustained could well impact on finances in different ways, including if loved ones are having to change their usual circumstances in order to provide any help and support that is required during the initial stages of the recovery.
As the engagement of a case manager under the rehabilitation code is separate from the litigation process, any finding of contributory negligence will not be relevant to the involvement of the case manager here. For example, if there is going to be a clear finding of contributory negligence, which I am certainly not saying would be the case here (this will depend on the actual evidence specific to the claim), and say that was assessed at 25%, any treatment costs pursued via the claim itself would only be recoverable at 75% of the cost. However, if a case anager recommended such treatment and the insurer agrees to fund it under the rehabilitation code, as it is separate from the claims process, there will be no such deduction and the total cost of the treatment would likely be funded by the insurer direct to the treatment provider.
As such, engaging in the rehabilitation process at the earliest opportunity is often very sensible. It can ensure that access to treatment/other recommendations is achieved as quickly as possible, whilst also protecting against the risk of deductions that might occur within the claims process in appropriate cases.
In a case like this (‘(wo)man vs. machine’), it is likely the insurer will be alive to the fact that primary liability could attach to the vehicle driver. However, they will likely look at all evidence to see whether there are any factors that could be relevant to the individual claimant. The use (or lack of) cycle helmet could be relevant here, as could the overall visibility of a claimant. For example, if the collision had happened during the middle of the night and/or during adverse weather, they may consider whether the claimant was wearing bright/reflective clothing and/or using bike lights. In all cases, they may also consider the speed or positioning of the claimant. A claimant riding during the middle of the night, down the middle of the road, without any lights, helmet or reflective clothing, could feasibly establish primary liability against the vehicle driver (e.g. the driver was equally or more reckless), but may have to accept a deduction for factors that may have helped prevent the collision from occurring in the first place and/or may have reduced the extent of the injuries sustained.
In reference to the seatbelt example above, the likely outcome that would occur if a case involving an unrestrained car passenger went before the court is that there would be a 25% deduction if the use of a seatbelt would have prevented the injuries entirely; a 15% reduction if the use of a seatbelt would have reduced the extent of the injuries; and no reduction if the use of the seatbelt would have made no difference whatsoever. The parties may well agree a different reduction between them, but the likelihood is that the court would either apply a 25%, 15% or no deduction based on previous case law. I have seen cases where 10% has been agreed between the parties without involving the court, as the parties may well appreciate that the likely outcome at court would be between say 0% and 15%, so they agree a compromise to reflect “litigation risk“ on both sides.
As the incident described by the OP occurred at ~10 am, assuming there were no issues with road positioning or other visibility, the insurer may well look at whether or not a cycle helmet was worn and, if not, whether it would have made a difference. However, there are no hard and fast rules here. In appropriate cases, it can come down to what the medico-legal experts and/or any liability experts, such as accident reconstruction experts, say in their evidence, and then how the parties assess the litigation risk as to what a judge may decide upon hearing the evidence at trial where judgment would be given. This can be very much come down to how the experts and other witnesses come across during live evidence and how a judge may interpret the same, so it is all a balancing act on behalf of the parties.
However, when the specifics of the mechanism of the collision are looked at, if the overall evidence comes out that the use of a cycle helmet will not have made a difference, then no deduction should follow. A cyclist is obviously highly vulnerable in a collision with a motor-vehicle. The point of impact, speed of the motor-vehicle, and how the claimant lands following the collision can all be relevant. I have seen cases where cyclists have been wearing helmets, but the use of them have been rendered obsolete due to the overall severity of the collision. I have also seen cases where the expert evidence has come back that a helmet has helped reduced the injuries, but it all comes down to the specifics of each case.
Of course, all of this may not be relevant in the individual circumstances giving rise to the OP’s query, and I have rambled on so long I’m not even entirely sure whether I have answered any questions that may have arisen in other posts, but hopefully this will be of some help to someone, somewhere...if you got this far, thank you!
All the help and feedback is appreciated, I didn’t really to expect the thread to run. Special thanks again to Cudd.
To answer those who asked, unfortunately she wasn’t wearing a helmet.
The driver has admitted to reading delivery notes on the passenger seat of his van, not seeing her and being jolted by a massive bang. This was backed up by cctv of the van veering out of its lane fractions of a second before impact. Actual impact was just out of view of cctv. Police reconstructions and cctv suggest impact of 30mph, this also the speed limit of the road.
It was a clear, dry day. Several ambulances and police attended. Air ambulance attended. Road was closed for around 6 hours after the event.
Recovery continues to go well. She’s progressed from a walker to a stick this week. Receiving physio is helping. She’s tired and drowsy with no attention span. Everything will take time.
To answer those who asked, unfortunately she wasn’t wearing a helmet.
The driver has admitted to reading delivery notes on the passenger seat of his van, not seeing her and being jolted by a massive bang. This was backed up by cctv of the van veering out of its lane fractions of a second before impact. Actual impact was just out of view of cctv. Police reconstructions and cctv suggest impact of 30mph, this also the speed limit of the road.
It was a clear, dry day. Several ambulances and police attended. Air ambulance attended. Road was closed for around 6 hours after the event.
Recovery continues to go well. She’s progressed from a walker to a stick this week. Receiving physio is helping. She’s tired and drowsy with no attention span. Everything will take time.
Edited by hacksaw on Saturday 1st February 22:43
Edited by hacksaw on Saturday 1st February 22:43
Just to drop an update to this for those who contributed previously.
MIL was complaining about about being deaf in the ear at the side of the head where the impact was. Ear, nose and throat specialist appointment last week revealed a permanently damaged ear canal, so her hearing won’t likely improve.
Today, a follow up scan for her original head injury has revealed a blood clot on the brain. Was allowed to come home today but will be back to hospital in next 48 hours or so for around 4 days (hopefully) to have this operated on.
So, slow progress still. FIL has however sorted legal advice. He is a union member and through their legal team has been passed to a specialist solicitor who is now handling everything.
MIL was complaining about about being deaf in the ear at the side of the head where the impact was. Ear, nose and throat specialist appointment last week revealed a permanently damaged ear canal, so her hearing won’t likely improve.
Today, a follow up scan for her original head injury has revealed a blood clot on the brain. Was allowed to come home today but will be back to hospital in next 48 hours or so for around 4 days (hopefully) to have this operated on.
So, slow progress still. FIL has however sorted legal advice. He is a union member and through their legal team has been passed to a specialist solicitor who is now handling everything.
Edited by hacksaw on Wednesday 19th February 22:12
Hi hacksaw
Just saw your update and I hope all goes well with your MIL’s recovery. Glad you got the legal representation sorted as well.
The issues you describe are very common in these type of cases. It can be a long journey to recovery and hopefully with the right help and support that journey will be made easier for all involved.
Just saw your update and I hope all goes well with your MIL’s recovery. Glad you got the legal representation sorted as well.
The issues you describe are very common in these type of cases. It can be a long journey to recovery and hopefully with the right help and support that journey will be made easier for all involved.
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