Case examples

Accident and personal injury cases handled by Mark Thompson

Google sued over walking directions

June 15, 2010 in Case examples, Explanation | No comments

Woman sues Google over Utah walking directions

I came across a news report about a law suit in the United States against Google complaining its Google Map had given an unsafe pedestrian route.

Extract from the report of 1 June 2010 reads:

Salt Lake City — A pedestrian injured by a motorist while following an online route has filed a lawsuit claiming Google Inc. supplied unsafe directions.

Lauren Rosenberg filed a lawsuit on Thursday seeking more than $100,000 in U.S. District Court in Utah. It also named a motorist she says hit her.

Rosenberg used her phone in January to download directions from one end of Park City to the other.

Google Maps led her to a four-lane boulevard without sidewalks that was “not reasonably safe for pedestrians,” according to the lawsuit filed by the Northridge, California, resident.

The case has become a sensation on tech blogs, websites and cable television channels, with critics assailing the woman for ignoring her own safety to blindly follow online directions. Her lawyer, Allen Young, said the truth was different.

Rosenberg believed she could reach a sidewalk on the other side of Deer Valley Drive and tried to cross the boulevard, but didn’t even make it to the median, he said.

She was struck by a speeding car on a pitch-black night and received multiple bone fractures that required six weeks of rehabilitation, Young added.

“We think there’s enough fault to go around, but Google had some responsibility to direct people correctly or warn them,” Young said. “They created a trap with walking instructions that people rely on. She relied on it and thought she should cross the street.”

Rosenberg is seeking compensation for medical bills, plus more for lost wages and punitive damages. The lawsuit provided no other information about the woman, who has been misidentified online as a Los Angeles publicist by the same name.

Young said the woman is a native of Northridge in her mid-20s and is unemployed. No phone listing could be found for her.

Google spokeswoman Elaine Filadelfo said the company had not received a copy of the lawsuit and couldn’t discuss it, but she disputed Young’s assertion that Google Maps provides no warning that walking routes may be missing sidewalks or pedestrian paths.

Every software version for desktop computers and mobile devices has had that disclaimer since Google Maps was launched in 2008, she said.

Park City police said some segments of Deer Valley Drive have sidewalks but not the stretch that Rosenberg reached. The boulevard has a walking path on the side Rosenberg failed to reach, police Capt. Rick Ryan said.

Young said the walking path was “totally snowpacked” and of no use to pedestrians in January.

You must remember this is a United States case. It is also important to realise the law varies between States. They have punitive damages which are intended to punish an organisation for carelessness. You might think including Google and criticising Google Maps is a tactic to achieve that type of compensation.

If the case was run in this country it is unlikely Google would be included, let alone found liable. A Court in the United Kingdom would not be impressed with such a complaint. Erecting a footpath sign when the path ended at a cliff top might get you in trouble, and providing such a route would get Google Maps in trouble too, but providing a route across a city is unlikely to involve Google in a legal action in the United Kingdom.

This type of case means we will see more disclaimers and warnings, rather like almost every food packet telling you there may be a trace of nuts.

The full report by Paul Foy of The Associated Press an be seen at http://cnews.canoe.ca/CNEWS/WeirdNews/2010/06/01/14220536.html

Child head injury

September 28, 2009 in Case examples, Head Injury | No comments

A young girl was a passenger in the family car which was hit by a lorry.

This case underlines how carefully we must check for an acquired brain injury in a child. Two people died in the accident, and the child seemed to be free of major injury. As time went on the acquired brain injury became more obvious, and was illustrated by the instruction of appropriate experts. An acquired brain injury can often appear to have only subtle effects, but if your ability to remember and organize is affected, the consequences are going to be very serious.

The settlement took account of educational difficulties which would lead to career problems. The compensation was placed in a Personal Injury Trust. This meant means tested State benefits could be claimed, and the compensation could be properly used through the discretion of the Trustees. If a child is injured, any compensation award must be approved by the Court, and the money is usually paid into the Court Funds Office for investment until the child is 18 years of age. Once the child reaches 18 years of age the money is theirs, and is paid out by the Court. Special arrangements can be made if money is required immediately, or as in this case if control is necessary beyond the child’s 18th birthday.

Claim for self employed

August 31, 2009 in Case examples, Compensation | No comments

Self employed

I often act for self employed people. Running my own business gives me an understanding of the self employed, and the particular pressures and issues these cases for compensation involve. Someone on a salary may not be too concerned by a period off work, but for the self employed this can mean immediate loss of cash flow, and a drop in profit at the year end.

We need to look quickly at rehabilitation in cooperation with the third party insurer. We need to look at any insurance you may have. Policies such as permanent health insurance do not usually kick in until you have been off work for some months. Do you need to hire someone to keep business ticking over? Are State benefits available to you? These are all good questions, not necessarily the relevant to a personal injury case, but questions an experienced adviser will raise, and have answers.

I have acted for pension and financial advisers, company directors, welders and fabricators, taxi drivers, option traders, actresses, lorry drivers, and solicitors. I have also acted for the families of such individuals when the accident has proved fatal. Advice in each case comes from the same pool of experience, but advice is bespoke in each case. The case is yours and needs individual attention, and it should not be squeezed into the computer programs of some of the large legal outfits.

Accounts are always important. How can you prove your financial loss? It is not just a question of saying I am down one year in relation to the previous year. There are many factors which affect business, the financial crisis of 2008/09 being a good recent example. We must get under the skin of your business, understand where income and profit comes from, and then identify the loss caused by the accident. You might be surprised that your VAT records can be a great help.

It has to be said that for many self employed business people that income and profit may not be the same thing. Accounts are sometimes drawn with an eye on tax. An understanding of all these issues is vital if you are to be helped from the point of the accident right up to the conclusion of the case, and beyond.

Paraplegia

August 18, 2009 in Case examples, Compensation, Spinal injury | No comments

In simple terms waist level paralysis. In life terms every thing is different.

I handled a case for a young soldier, who I will call John. He was off for the weekend, and got a lift in the back of a friend’s car. The driver had to take evasive action to avoid another car changing lanes. The car rolled over several times, and John, who was not wearing a seat belt was thrown out of the back window. The spinal cord was damaged which left him paralysed below the waist.

He had great treatment and rehabilitation at the Army’s specialist facilities, but there came a point when he was discharged on medical grounds and had to make his own way in the world. The case was defended by blaming the driver of the other car who made the evasive action necessary, and criticising the failure to wear a seat belt. The first argument was defeated, but the second is set in stone. Not wearing a seat belt means an automatic reduction of compensation by 25 per cent if wearing a seat belt would have prevented all but minor injury, and 15 per cent if wearing the seat belt would have substantially reduced the injury. Once more I get the opportunity to point out the very real effect of reducing the total compensation if there is a finding of contributory negligence. The decision which sets out the law for failing to wear a seat belt pre dates the law on compulsory seatbelt use.

Perhaps as a result of his military training, or just his own determination and courage, John found himself a home, an adapted car, kept fit, and kept positive. This was necessary as the defence of the case meant it was not possible to quickly obtain an interim payment to ease John’s passage into his new life. He struggled for a time in a ground floor council flat until able to buy his own house, and adapt it for wheelchair use, when the case was complete.

Cases involving serious injury are very expensive for insurance companies. They cannot be blamed for trying to defend an expensive case, but there are differences between the approach of insurance companies. Some have to be forced, and some will work with you. Such cases are best resolved with experienced people on both sides.

Spinal injury

August 18, 2009 in Case examples, Compensation, Spinal injury | No comments

I have pointed to the effect of a finding of contributory negligence elsewhere. The effect is greatest in the most severe injury cases, because the needs of the injured person are so great, and therefore expensive. If you are found to have contributed a percentage is fixed to identify your share of the blame for the accident, and that same percentage is shaved off the value of your compensation. A clear example of this effect was a motorcyclist who suffered a high level spinal injury which left him almost completely paralysed.

A Court decision said he was one third to blame, so one third was shaved from the value of his compensation. The only pure compensation given for this type of injury is the general damages for pain, suffering and loss of amenity (what can no longer be done), and the top end for compensation is £250,000. The real expense in such a case is the care regime. Employing carers all day every day is expensive, and is the reason some of these cases settle well above £5,000,000. The care regime cost is based on annual care cost projected forward based on the life expectancy of the injured person. A young person with a good life expectancy will need many years of care, a a great deal of compensation.

The problem in the example case was the one-third finding of contributory negligence. The fear for any compensation amount is that it will run out, but when you are down by one-third at the start, what chance is there for a good care regime and everything else which is necessary.

We cannot imagine what someone so severely paralysed experiences, particularly when fully aware of their circumstances. You might be able to imagine what is necessary to take a trip away from home for a day, and when you do you must not leave out an appropriately adapted vehicle, at least two people in case any lifting is necessary, a powered wheelchair, and the time and energy to take account of how long it all takes. In terms of compensation, all of this costs money, and lots of it. If you start with one-third off the compensation, you might just stay in bed or a wheelchair.

This accident was caused by a driver pulling out across the road from a petrol station. The driver did not see the bike approaching along a straight road. There are many explanations you can give for causing such an accident, but not seeing the motorcycle is not good enough. The law does allow the driver to try to prove the rider was travelling fast, and could have stopped or steered around the van if speed had been lower. One-third to blame was the Court’s decision, but that one-third is taken off the total value of the case, and effectively only funds a care regime for two-thirds of the anticipated lifespan.

We can say the result is unfair, but the injured person who cannot seek compensation might say it is better than having to rely on the bare minimum provided through the State benefit and NHS system.

My experience of dealing with such cases is always one of mixed feelings. You can only deal with the case in the best way possible, working with the client and family to provide as much financial help as possible. What is always humbling and cheering is the remarkable guts and fortitude shown by the injured person and those who rally round to support.

Tractor turns right

August 17, 2009 in Case examples, Compensation, Head Injury, Motorcycles | No comments

A tractor turning right without indicating as a motorcyclist overtook had serious consequences.

The rider was knocked off his bike and then run over. Many fractures were suffered, together with a head injury. The accident brought to an end a promising military career, and in fact the combination of the physical disability, and more importantly, the head injury, made future employment unlikely.

Receipt of War Pension and an early interim payment allowed for suitable accommodation and transport. Family support was so important in this case.

A significant settlement allowed the purchase and adaptation of a home, and sensible advice meant long term income was protected.

Structured settlements, depending on the annuity rate current at the time of settlement, can produce long term security. All or part of the compensation fund can be used to purchase an income for life. It appears expensive, but when long term care and security is the priority a structured settlement can work well. The income from a structured settlement is received free of tax, and is not taken into account when means-tested State benefits are assessed. These two factors often mean it is a challenge to equal the income of a structured settlement using other investment strategies.

Although not available at the time this case was handled, periodical payments are now available. They are considered so important that in large compensation case you will have to persuade a Judge why periodical payments are not the answer. From the injured person’s point of view you might feel a long term relationship with the Defendant’s insurer is not ideal. You might prefer to be independent. The driving force behind the introduction of periodical payments is the high cost to the NHS of birth damage cases. It helps budgeting to spread the cost of multi million pound settlements over the lifetime of the injured child. The benefit for the claimant is that the periodical payments can go up if circumstances change, but of course down if costs reduce.

There are cases when structured settlements and periodical payments are the best solutions, but there are occasions when they are not. Experienced specialist advice is very necessary in a high value case.

Whilst on the question of compensation and long term needs, one subject to include is the Personal Injury Trust. The law allows compensation from a personal injury settlement or award to be paid into a Personal Injury Trust. The Trust fund and income is ignored when assessing means tested State benefits. Such a trust does not have to be complicated, and the injured person can have control of the fund. A Personal Injury Trust can also be useful when the injured person might need to be protected from investment risk, as others can be appointed as Trustee, and manage the Trust with a long term view. Remember, you only get one compensation award, and when it is spent there is no more, unless you were awarded provisional damages.

Lift accident kills two

July 29, 2009 in Case examples, Compensation, Fatal accident | No comments

Two young men died in a lift shaft at a council owned block of flats.

After a fatal accident the facts unravelled as the Police, Health and Safety Executive, and Coroner made their investigations.

The two men were scuffling after a party, fell against a lift door which opened like a cat-flap, and they fell down 14 floors. Mark Thompson acted for the partner and child of one of the two men.

Helping after such a tragic accident requires empathy and experience. There was no bereavement award in the case as the man was over 18 years and unmarried. A financial dependancy claim was possible as the couple had a child, and had been living together for more than two years “as husband and wife.”

Cases like this usually proceed slowly as the investigations must take their course. The investigations could lead to criminal prosecution so those involved will not make a move until all is clear. Sometimes a Coroner will proceed with the Inquest, but will often wait for investigations and prosecutions to take their course. That is bad news for someone relying on a claim for compensation as two years can pass before the Inquest takes place. It is only after the Inquest that all evidence can be obtained.

This sad case was successful, and run on a conditional fee agreement.

Foreign accent syndrome

July 29, 2009 in Case examples, Compensation, Explanation | No comments

The media reported the rare case of Linda Walker whose Geordie accent had turned Jamaican after suffering a stroke.

She was diagnosed with Foreign Accent Syndrome, a rare neurological condition that is caused by damage to the brain.

Having grown up in the Westerhope area of Newcastle she had naturally acquired a Geordie accent. She had spoken with this accent for over 60 years of her life.

When she found out that it had changed to a Jamaican accent she became very down and no longer felt like she was the same person. She felt that she had lost her identity.

The result of Foreign Accent Syndrome is a drawing out or clipping of the vowels that mimic the accent of a particular country, such as Spain or France, even though the sufferer has limited exposure to that accent. The syndrome was first identified during the Second World War when a Norwegian woman suffered shrapnel damage to her brain. She developed a German accent, which led to her being ostracised by her community.

It is a rare result of an acquired brain injury. When people suffer from this rare condition it is often hard for others to understand just how serious the affects can be.

Motorcycle v U turning car

July 29, 2009 in Case examples, Head Injury, Motorcycles | No comments

Jack’s was on his way home from work on his Kawasaki ZX9R, his pride and joy. The bike at the time was renowned for being the fastest bike on the road.

He had been travelling up hill on a dual carriageway and was just about to overtake a car on the inside lane when the car U-turned across him. Jack did his best but hid the car.

What happened next, Jack can only guess. He woke up in hospital on a spinal board. He was told that he had suffered serious fractures and would have to undergo an emergency operation. He spent the following 3 days in Intensive Care. Jack had in fact suffered numerous injuries including post-traumatic amnesia due to a severe head injury, a hangman’s fracture, a fractured elbow, a heavily bruised abdominal wall and a ruptured aorta.

Despite all his injuries Jack made a good and quick recovery, returning to work a few months later. However he was not the same person after the accident.

One of the hardest things for Jack was the fact the crash affected his voice. One of his vocal chords had been paralysed which meant his voice was very weak and quiet. Adding to this his head injury which caused him to pronounce words incorrectly and left him with debilitating migraines life was far from back to normal. Sometimes the less obvious injuries have the greatest long term effect.

To make things worse the driver of the car had been uninsured which meant we had to pursue the case against the Motor Insurers Bureau. They argued that Jack should have been able to stop in time and that he was travelling too fast. This is a consistent argument against motorcyclists. The truth is a motorcycle is not seen, so the driver claims the bike must have been ridden too fast. I did not see you because you were going too fast does not make sense.

Mark Thompson has acted for many motorcyclists over the years. A bike is a great way to travel but do look out for them as the consequences of a collision can be awful.

Fatal accident – family effect

July 29, 2009 in Case examples | No comments

Fatal accident when parents and their son were out cycling. The men were on the grass verge fixing the son’s bicycle and Mum was sitting on a bike at the side of the road. It was a normal width road, and she was inside the white line at the edge of the road. A van coming from behind simply veered off the road, knocking Mum and her bike back up in the air, and she was killed.

Both father and son suffered post traumatic stress disorder. This is a condition above and beyond the upset which is expected after a death. It effects those on the scene who witness the accident and its consequences. It is important to have early rehabilitation treatment for this condition. The sympathetic insurer arranged the therapy, and this helped to ease the suffering. The help even included a professional gardener to keep the family garden in good order until father felt able to continue on its care. A compensation case cannot put things right, but if approached with empathy the case can do more than produce a payment.

Compensation in the case was not high as the lady killed was retired. So the settlement included a bereavement award, funeral costs, and the son’s loss of earnings until the therapy helped him back to work.

The driver of the van was prosecuted for careless driving. The circumstances did not suggest dangerous driving.