A recent judgment has confirmed that cyclists should wear protective head gear, or face a reduction in damages if they are injured and seek compensation.

The idea is 'contributory negligence' and has been around for many years now. In essence if the other side has been negligent, but the damage suffered is caused also by any negligence of the claimant, then the judge will first of all assess teh full measure of damages, then assess the degree of contributing fault (by a percentage), and then deduct that percentage from the award.

There is no universal rule, but it is suggested that the contrbution willbe about 15% depending on the circumstances.

The claimant, a Mr Craner, sought damages after injuring himself. He was a school caretaker, and was pushing a trolley through the school yard. It hit an uneven paving slab, stopping very suddenly and of course he could not stop quite as suddenly. The case is interesting because the council defended itself saying that it could not be responsible for what was a freak of nature; they had not been negligent,and almost any practicable level of supervision would not have been able to prevent the accident.

The court almost sympathetic. It agreed that the standard of care required of the authority was high, and was higher than would have been imposed by the general law, but the particular Health and Safety regulations (Workplace (Health, Safety and Welfare) Regulations 1992) did in fact impose a higher standard, which standard the local authority had failed to achieve. The claim succeeded.

The conclusion is that if you are injured, and particularly if this happens at work, you may very well have a proper claim. You should ask us to pursue it for you.

A big story is that the House of Lords have amended the law on limitation (the law which prevents a claim for damages after a certain time).

Most claims for damages are brought saying that the defendant was negligent. For such claims, the claim has generally to be brought within three years, but in certain limited circumstances, the court can extend that limit. Where the claim is for a deliberate act, such as an assault, the law allows a case to be brought within six years, but until this case, it had no discretion to allow a case to be brought outside that time limit. The House of Lords has now said that courts do in fact have that discretion.

Note that this does not mean that all old claims may now be pursued. There has to be a very proper reason for the delay, and a court can still, and often will, refuse to allow an old case (by definition more than six years old) to go ahead.

It is still very very much better to get your claim in within the time limits - you do not than have to obtain the court's permission first.

APIL - (Wrigley Claydon are members) say that costs savings are already possible, and without the unfair result which would come from teh insurers proposals. Denise Kitchener, the chairman of APIL said: “One of the biggest costs-drivers is the denial of liability by insurers, for example. In up to two thirds of cases insurers fail to comply with the pre-action protocols and deny liability even when it is admitted in the end, ultimately slowing down the process and adding to costs. We believe admission of liability should be both binding and early”

May 11 2006

A big difficulty for claimants was at one point that where they had been exposed to asbestos working with different employers, two employers could each stand and say that a claimant could not prove that either one was the source. Much progress was made when the House of Lords decided that a particulr form of the disease was as it were indivisible, and decided to apportion damages between the defendant companies. In practice a full recovery of dmages was achieved.

Insurers have continued to struggle against these findings, and at the beginning of May, the problem returned to the House of Lords - our highest court. This time there were to differences. First, a different form of disease, and second, the defendant companies before the court had not between them been resposnible for all the exposure to asbestos. The House decided that it would be wrong to ask the defendants actually before the court to pay up for all the damage. The particular disease did not have the same characteristics.

What this shows is that even after such litigation has been continuing now for many years, there are still substantial new questions arising and needing answers.

At the moment, claimants who come t firms such as ourselves with a good claim, will have all this done for them without a charge to them. If the insurance industry succeeds, many will have to pursue a claim without assistance frm a lawyer. Many will choose not to, and many who do press on will settle for low awards. It does not seem like a consumer friendly proposal.

An interesting point is that each has now been given a choice. The company has agreed to compensate them properly for their injuries and has offered to pay a small amount on account and to settle the balance by a form of arbitration. This kind of resolution has many advantages. The biggest issue is whether the settlement basis is intended to reflect what the injured party would receive in court. These sorts of procedures tend to be over the top for resolving smaller claims, but much cheaper for resolving larger claims. Court rules now require parties always to consider whether some method of 'Alternate Dispute Resolution' - ADR is appropriate.

The solicitor for four of the six is, as yet, resisting this move. His objection seems to be that the system proposed (the one recommended by Pharmaceutical Industry) will remove the ability of each party to bring in its own experts to give evidence.

20 April 2006