We often meet people at some of the lowest points of their lives, when injured, without work and requiring care. In each case we work hard to help them back onto their feet, sometimes literally, and get them the compensation they deserve. Here is an interesting tale of one of our clients and how diligent evidence hunting and an accurate reconstruction helped win the case.
“I was cycling on a bridle track within the boundary of a country park at night. The cycle was in excellent order and I was displaying adequate lighting for what should be a relatively safe environment. At the bottom of a downslope, I collided with a totally unmarked steel barrier,” our client outlined. “I was standing on the pedals so it resulted in compound fractures of both legs and other injuries. I was alone but managed to ring for assistance and eventually the Emergency Services arrived.”
In the time immediately following the collision, our client was faced with many obstacles. He was unable to work due to his injuries and, with no immediate prospect of a return, had no income. His mortgage was in arrears as a consequence, and his less than sympathetic lender was heaping on the pressure. Our country’s safety net, Universal Credit, created an elaborate course of hoops to jump through, making his financial outlook incredibly bleak.
With no cash available for private health care and with no rehab or care plan in place, he was discharged from hospital in a wheelchair to simply make the best of it. To compound this further, our man was recently single and living on his own in a terraced house with both bath and bedroom upstairs – an impossible situation while in a wheelchair.
Searching for help
Our client decided to seek help in claiming compensation, “in an attempt to recover damages for my injuries (from the county council responsible) and subsequent loss of earnings, I contacted a solicitor, only to be told later that they were not interested in this kind of case. Indeed, a second attempt from a recommended source did not yield any correspondence for over 5 weeks.” The previous two firms of solicitors of whom he inquired declined to assist on the basis that they were not satisfied his misfortune presented reasonable prospects of a successful claim. Finally, he found us. “I was fortunate enough to receive legal representation from Cycle-SOS and, in particular, the excellent Paul Darlington,” our client explains. “Their service was extraordinary in its approach to establish a robust case to present to the court.”
The start of the story…
One early December evening, the new-to-the-area cyclist Rob was cycling through a country park along a tarmac road, which had recently been closed to vehicular traffic and re-designated as a bridleway and cycle route, open 24/7. It wasn’t a journey he had made before, although he had every right to be there. His MTB had front and rear lights, while he also had a strip of LED lights along the peak of his helmet. This provided sufficient illumination to read signs, as there was no other form of lighting.
As he freewheeled down a modest gradient at a speed that enabled him to circumvent the speedhumps (a hangover from the days of motorised use), he was horrified when a steel barrier loomed out of the darkness immediately in front, blocking the route. A collision was inevitable. Catapulted from his bike he landed on the other side of the barrier with compound fractures to the bones of his lower legs, along with other injuries.
Wholly immobile, bleeding heavily and alone in an isolated location with the temperature falling, the outcome could have been significantly worse. Thankfully, the arrival of a curious Collie dog and its walker meant that help was soon on its way.
Establishing the facts
The barrier that the rider collided with was a heavy swing-away steel barrier, painted dark matt green and installed when the road was re-classified. There were no warning signs or markings on the road surface to direct cyclists to an access point, nor any visible contrasting or retro-reflective material on the barrier. The backdrop was natural woodland and no illumination save for natural light, a rare commodity at 7pm in early December.
To establish these facts, we started by taking our client through his route and examining the site in detail, pushed in his wheelchair by our crash investigator. “I was pushed along the entire recalled route through the park,” he recounts, “taking photographs of anything of relevance and noting any speed control features before establishing clearly that the barrier was indeed devoid of any reflective material or lighting.”
Our crash investigator, recently retired from the Lancashire Police collision reconstruction unit, followed the route through the park, collecting evidence along the way. The offending barrier was examined in some detail, along with the downhill approach to it.
So, where did we start with establishing this claim? Within memory, a national supermarket chain had compensated a car driver who had skewered his vehicle on the pointed end of an open swing barrier. Those organisations that included such structures in their estates had begun to apply black and yellow tape to the parts of the barriers that would be visible to those approaching when the barriers were in the open position, as had the County Council in this case. But as the index barrier was closed for 99% of the time, that precaution wasn’t a whole lot of use to anyone approaching the barrier when in its closed position, especially at night, given its colour, position and visibility.
Here at Cycle-SOS we have a keen legal interest in the published materials to which local authorities have access when providing cycling facilities. While these have no binding statutory authority, as the Council here was eager to point out, the guidance exists and ought not to be ignored. The small academic leap necessary to assess the need for some form of warning of the closed barrier was apparently too giant a step for the Council to take, with an entirely foreseeable consequence for an approaching cyclist.
Passing the buck
Despite the horrendous situation our client was in, the Council’s reaction when notified of the claim was far from sympathetic. They refused to engage in the Rehabilitation Code, which is designed to help a claimant recover as quickly as possible and requires the cooperation of both claimant and compensator. They refused any interim funding to aid his financial situation while the case was ongoing and showed reluctance in sharing the relevant documents relating to the installation of the barrier. However, there was a willingness to subject our client to covert video surveillance, just to ensure that he wasn’t exaggerating his injuries!
A concerted attempt to pass the buck back to the cyclist, citing excess speed, non-compliance with a speed limit, lack of suitable cycle lights and questioning the legitimacy of his presence on the route were tactics designed to wear down the claimant and dissuade his representatives from throwing further time at the claim, the Council (correctly) assuming that the job was being run on a no-win no-fee basis.
An accurate reconstruction
As part of our essential evidence gathering, we arrived on the first anniversary of the crash to the hour, equipped with bikes, the lights our client had been using, light meters and cameras. The accuracy of this exercise was enhanced by it being staged on the exact date, a year to the day since the collision at approximately the same time. Also, as fortune would have it, an identical moon phase was present. This clearly established the hazard presented by the obstruction under the circumstances.
Immediately apparent was that, between the first inspection in March and the December anniversary, small retro-reflective patches had been applied to the barrier. This was really helpful, because it was then possible to make a visibility comparison between a properly configured barrier and one (after the judicious application of tape) that wasn’t. Once permission had been granted by the Court to rely on expert evidence, the Council’s team undertook a similar exercise – imaginatively in May, not December.
Persistence pays off
The Council came to negotiations a few days before the commencement of the liability trial and some months later the council taxpayers duly stumped up a realistic six-figure sum in compensation for our man (along with costs for both sides’ lawyers, experts, doctors, their surveillance operatives and loss adjusters).
The story really speaks for itself, illustrating that any sort of acceptance of responsibility is eclipsed by the prospect of avoiding payment. Insurers will only come to the table when they realize that there’s no other realistic alternative. No claimant ought to expect any compassion from the opponent; it’s all purely commercial.
What is a success fee?
Potential claimants often inquire why they may be charged a success fee when their claim is won. It is to provide a financial buffer to permit the challenging but deserving cases (such as this) to be run. Without a success fee a law firm will lack the resources to fund those claims, which may not immediately appear to have prospects of success.
If a case is being properly prepared, the lawyer running it works on the basis that it will come before a court. As few Judges will have a great knowledge of the subtleties of highway safety, it is prudent to introduce evidence from someone who does, an expert witness, such as a Highway Safety Consultant who can assist the Court with impartial specialist detail.
This proposal rarely goes down well with the opposing Council. They prefer to wheel out their own highways team who will tell the Court that everything was fine and really nothing more could have been done to prevent the incident. All very simple – if they aren’t confronted with a real challenge.
But, as our client gratefully realised, this is key to success in cases such as these, “My warmest and most sincere gratitude goes to Paul Darlington. Not only was I invited at every opportunity to assist in suggesting any uncovered angles but for his ability to find such professional and erudite experts in whatever field we required.”
He continues, “As the defending party tried to wriggle out of its responsibilities it found itself under a constant barrage of expert evidence from many disciplines, each one fronted by an esteemed colleague with outstanding credentials. This continued to be the theme throughout the lengthy prosecution process, amazing attention to detail and a no-nonsense approach to any outlandish riposte from the defendant. The sustained pressure and coherent evidence from the expert witnesses collaborated in the defendant agreeing to settle damages out of court.”
Choose the best representation
When it comes to pursuing a claim, the most important decision is your choice of legal representation. Look for experience, resources and additional accreditations, the Law Society’s Personal Injury Panel being the ONLY one that actually verifies its membership. Anyone can call themselves a specialist or expert, but are they? Is the firm independent or a subsidiary of something else, perhaps even an offshoot of an insurer’s practice? Do they only take ‘no fault’ claims?
Although this story does have as happy an ending as might be possible, it only followed a concerted effort by the victim himself, family, carer (now wife!) and some single-minded legal representation. We are very pleased to have played a significant part in getting our client the support he needed to move on with his life.