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How to set up and operate a trust bank account

Personal injury trust bank account use

This page is to help you set up and operate a joint current bank account for the trustees of a personal injury trust. It is along similar lines to the information provided to clients of Mark Thompson Law for the creation of a trust for personal injury compensation. If your trust has not been drawn up by this practice, do not assume all of the information applies to you.

This page will answer most questions and help you and your trustees to set up and operate your trust.

Continue reading “How to set up and operate a trust bank account”

Personal injury trust fund to protect means tested benefits

Do I need a personal injury trust fund?

Will I lose my benefits when personal injury compensation is received? This question is asked by people settling personal injury compensation claims, worried they may lose their means tested benefits.

You will be relieved to know you can legitimately keep your benefits and the compensation. This is allowed by the benefit regulations themselves. What you must do is set up a trust to hold the compensation and keep it separate from your personal funds.

Continue reading “Personal injury trust fund to protect means tested benefits”

Personal injury trust for Northern Ireland

Personal injury trust for those with personal injury compensation in Northern Ireland

Those living in Northern Ireland can set up a trust for personal injury compensation. I can prepare the trust for you. All information on this website applies to those in Northern Ireland and to the UK generally.

Continue reading “Personal injury trust for Northern Ireland”

A personal injury trust is a positive thing

A personal injury trust is a positive way to keep and use your compensation and benefits

A personal injury trust is a positive thing, not a problem.

A trust is created by a legal document, called a trust deed. Trustees are appointed and hold the trust fund separate from your personal money. The trust is an arrangement to allow trustees to hold and use your money for your benefit. Benefit regulations allow you to keep receiving means tested benefits and hold and use your compensation. What’s not to like?

Use your benefits for the basic expenses, then use your compensation direct from the trust as you wish. All you have to do is keep the compensation in the trust separate from your own money. In return for keeping your benefits, which seems fair enough.

Continue reading “A personal injury trust is a positive thing”

Protect Armed Forces Compensation Scheme payments with a trust

Compensation received under the Armed Forces Compensation Scheme can reduce or stop entitlement to means-tested benefits. The answer is to set up a trust for what is personal injury compensation. Continue reading “Protect Armed Forces Compensation Scheme payments with a trust”

Personal injury trusts and how I will help you

Personal injury trusts – how I can help

My aim is to help you decide if a personal injury trust is right for you. I deal with most clients by telephone, email and letter and a meeting is rarely necessary. I will:

  • Help you decide if a trust for your compensation is right for you.
  • Agree a fixed fee so you know the cost – £480 including VAT – correct at March 2023.
  • Gather information and documents.
  • Prepare a trust deed.
  • Guide you through signature and witnessing of the deed.
  • Guide trustees to open a bank or building society account.
  • Give notice to the agencies handling your benefits claim.
  • Explain how the trust should operate.

You really have helped us as we had absolutely no idea what we had to do and you have not only made it easy but removed a very very large amount of worry and made us feel better and that things have been dealt with correctly.

Continue reading “Personal injury trusts and how I will help you”

Personal injury trust

Keep compensation and benefits with a personal injury trust.

Personal injury trust – special needs trust – compensation protection trust . All names used for a trust to protect personal injury compensation.

A trust will mean personal injury compensation is ignored when your finances are assessed for benefits and care. Here we help you understand protection of compensation with a trust.

When you receive compensation for a personal injury it can take you above the financial limits for means–tested State benefits, and affect your entitlement to local authority support for care. So be aware and look at the benefits you are receiving today, and just as important the benefits you may need in the future. Don’t just look at yourself as benefits are claimed by a family unit.Image shows personal injury trust deed to protect means tested benefits

It is worth repeating that you must also look at your care needs, both now and in the future, as a personal injury trust can protect compensation when local authority care is assessed.

A short-term decision may cost you dear.

Continue reading “Personal injury trust”

If I do not claim benefits do I need a personal injury trust?

I remember a call from a lady who had just received a cheque for £20,000 compensation from a personal injury claim. Neither she nor anyone in her family were claiming means-tested benefits; but she intended to save the money for the future. Her compensation solicitors advised a personal injury trust was not necessary. Were they right or wrong?

Wrong is the answer, I am afraid.Personal injury or compensation protection trust necessary to plan ahead

The advice was wrong because the circumstances of the family were only looked at over the short term. Continue reading “If I do not claim benefits do I need a personal injury trust?”

I may need a personal injury trust

Do I need a personal injury trust to protect my compensation and benefits

A personal injury trust is the only legitimate way to hold and use compensation and still receive means tested benefits. Such a trust is an opportunity to keep and use your compensation and receive means tested benefits.

The personal injury trust means your compensation will be ignored if you or others in your close family either claim, or need to claim, means tested benefits. The same applies if you require local authority care.

It is the benefit regulations themselves which allow a payment in consequence of an injury to be disregarded, or ignored. A sensible and generous law.

I continue to be surprised by the advice given to people receiving accident compensation about personal injury trusts. The advice presents a personal injury trust as an optional extra. A personal injury trust is vital in many cases and advisable in others.

Image shows trust deed for personal injury trust to protect means tested state benefits

Continue reading “I may need a personal injury trust”

How to set up a personal injury trust

Setting up a personal injury trust does not have to be complicated or expensive. I offer a fixed fee in most cases of £480 including VAT.

A personal injury trust is a trust which holds personal injury compensation. Benefit regulations allow personal injury compensation to be ignored, provided the compensation is held separate from your personal funds in a trust. A personal trust is perfectly legitimate.

I have set out all the points you must think about and the information I will need to help you.

The answer to the needs of compensated people in receipt of benefits or care is a bare trust to hold personal injury compensation. This is the simplest form of trust. It is easy to manage, has no tax complications and allows the compensated person to retain a level of control. Provided you follow a few simple rules, you can use the trust fund with freedom.

Personal injury trust Mark Thompson Law Continue reading “How to set up a personal injury trust”

What are the pros and cons of a personal injury trust

To help you make your decision, I have set out the pros and cons of setting up a personal injury trust. For this comparison I will deal only with a bare trust.


  • Compensation ignored when assessing your entitlement to means-tested benefits.
  • Compensation ignored when assessing your entitlement to local authority funded care.
  • Compensated person can retain a level of control.
  • Compensation can be spent from the trust with few restrictions.


  • Compensated person must not have personal access to trust fund.
  • Trust must have a separate bank or building society account.
  • The trust must have at least two trustees.
  • Trust bank account requires signature or approval of at least two trustees.
  • There is a cost in setting up the trust (not as much as you think).

Continue reading “What are the pros and cons of a personal injury trust”

A message for solicitors on personal injury trusts

Mark Thompson explains how to properly protect a claimant’s compensation

Your client is currently in receipt of means-tested benefits and is to receive an interim payment of £5,000. What should you advise?

Some might say that £5,000 is below the £6,000 allowed by most means-tested benefit tests, so protecting benefit receipt with a trust is not necessary. If this was your answer, please read on. Continue reading “A message for solicitors on personal injury trusts”

Compensation protection trust

Compensation protection trust

Compensation protection trust is one of the names given to a trust designed to ensure that personal injury compensation is not taken into account if you claim means-tested benefits or need local authority support for residential care.

The term compensation trust is just a name given to this type of trust, others being personal injury trust and special needs trust. A special needs trust is something quite different but I include it here as it is often thought to be a trust for protecting compensation. Continue reading “Compensation protection trust”

52 weeks to create a personal injury trust?

Is there a time limit of 52 weeks for setting up a personal injury trust?

There is no time limit within which a trust to protect compensation must be set up.

The best approach is to set up a trust to protect your compensation as soon as you receive the compensation. Continue reading “52 weeks to create a personal injury trust?”

I have received personal injury compensation and claim means-tested benefits

Do I need a personal injury trust?

Receiving means-tested benefits depends on the money held by you and those included in your claim. The usual barrier to a claim is holding £16,000, but if you hold more than £6,000, your benefits will be reduced.

When you receive a sum of money you must inform your benefits agency, which will decide if your entitlement to benefits should change. If you have received personal injury compensation, are there options?

Continue reading “I have received personal injury compensation and claim means-tested benefits”

Why aren’t there more personal injury trusts?

You can see from the questions I am asked there is a shortage of clear advice about compensation protection trusts, or personal injury trusts as they are better known. The banks and building societies often lack experience of opening accounts for trustees. This tells me that trusts are not being used where they are necessary. Continue reading “Why aren’t there more personal injury trusts?”

Who must I tell about my personal injury trust?

If you receive compensation for personal injury, you must inform the agencies handling your claim for means-tested benefits. It is the change in your financial circumstances which makes notice necessary.

If I prepare a trust for you, I will inform the benefit agencies you have received personal injury compensation and I have set up a trust for that compensation. Continue reading “Who must I tell about my personal injury trust?”

Which payments can be protected by a personal injury trust?

A personal injury trust can protect most payments made in consequence of a personal injury

The regulations which govern entitlement to means-tested benefits tell us what sums are taken into account and which are ignored. Among those ignored are “any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.”

The injury can be physical, psychological or psychiatric and need not be caused by a single physical incident. Continue reading “Which payments can be protected by a personal injury trust?”

Teenager ran into road hit by car travelling within speed limit

A driver travelling below the speed limit can still be at fault

As a basic principle if a car hits a pedestrian the driver of the car will be liable for the pedestrian’s injury. The pedestrian must also take care when crossing a road, and failure to take care will mean a finding of contributory negligence against the pedestrian. That contributory negligence is expressed as a percentage, and compensation is reduced by that percentage. As I have said before, if the injury is serious a reduction of the compensation due to contributory negligence can prove very expensive. Continue reading “Teenager ran into road hit by car travelling within speed limit”

Qualified one way costs shifting

QOCS is the catchy shortened version.

Since 1 April 2013 a new concept has been introduced for personal injury cases. If a Claimant’s case fails the unsuccessful Claimant does not have to pay the legal costs of the successful Defendant, but if the Claimant wins the Defendant pays the Claimant’s legal costs.

That sounds pretty extraordinary as for as long as I can remember the loser in personal injury claims paid the legal costs of the successful party.

So where is the catch? It lies in the qualified bit, which means the concept is not as clear as it first looks. Continue reading “Qualified one way costs shifting”

Personal injury trusts and working tax credits

When you apply for most state benefits,  a means tests will look at your capital and income. Working tax credits is not a means-tested benefit. It is an adjustment to your earnings based on your income alone.

It is only income from savings which affect tax credits, not the savings themselves.  You can find a helpful explanation about tax credits and capital and savings.

So what protection is provided by a personal injury trust?

Continue reading “Personal injury trusts and working tax credits”

Time limits for compensation claim for industrial disease

Time limits can prevent a compensation claim for industrial disease.

A case for compensation following an accident is time-barred or out of time if Court proceedings are not commenced within three years of the accident. The date by which the Court action must be started is easy to identify if injury is caused by a one-off accident.Compensation claim and time limit limitation period and time barred

But if the injury is a condition or disease caused by long term working conditions the three year time limit still applies, but when does the clock start to run against a claimant? Continue reading “Time limits for compensation claim for industrial disease”

Which bank account is best for a personal injury trust

To create a trust for personal injury compensation you first need a trust deed. This is a legal document which creates the trust and appoints your trustees.

Once your trust document is complete the next step is for the trustees to open a separate bank or building society account to hold your personal injury trust fund. Your trust is created by a deed and the trustees then open a joint current account.

You cannot create a trust just by opening a separate bank account, you need to first create the trust with a deed. People sometimes turn up at a bank with a compensation cheque, but without a deed, and this is why confusion is caused. I suggest you waste no time on banks before the trust deed is complete.

There are a small number of banks which will open a joint account for trustees. I will recommend banks to clients on the basis of recent client experience. The trust account should require at least two signatures for a financial transaction.Bank or building society account wanted for personal injury trust Continue reading “Which bank account is best for a personal injury trust”

Should the NHS be paying care and treatment costs?

Should the NHS be paying care and treatment costs, and how can you question a decision?

The way to argue the point is to request a review of the decision of the NHS body which has  declined care under the NHS. If no decision was ever made, and it looks like the NHS should have paid the cost then a review will sort out the question. Continue reading “Should the NHS be paying care and treatment costs?”

Asbestos compensation can be won from a parent company

What if you worked for a company many years ago and were exposed to asbestos?

You contract an asbestos related industrial disease and seek compensation. You then find the company you worked for no longer exists, and the insurance policy it had for liability to its employees did not cover asbestos exposure. What are you to do?

The answer might be to check if your company was a subsidiary of another company.

The story in a case called Chandler v Cape PLC went like this. Mr Chandler worked for an asbestos manufacturer Cape Building Products Ltd which was a wholly owned subsidiary of Cape PLC between 1959 and 1962. In 2007 Mr Chandler discovered he had contracted asbestosis from exposure to asbestos dust. The problem was that by that time the employer company, Cape Building  Products Ltd, no longer existed. That is not a problem if the company was insured at the time of the employment, but here its employee liability insurance policies excluded asbestosis. The answer was to bring a negligence claim against Cape PLC, the parent company, on the basis it owed and had breached a duty of care to Mr Chandler.

The High Court found for Mr Chandler, and the Court of Appeal agreed. This is a powerful case for Claimants in asbestos and other industrial disease compensation cases.

Don’t get carried away though, as a close relationship between the companies must be proved. The Court of Appeal used these guidelines:

1) the business of the parent and subsidiary were in a relevant respect the same;
2) the parent had, or ought to have had, superior knowledge on some relevant aspects of health and safety in the particular industry;
3) the parent company knew the subsidiary’s system of work was unsafe, or ought to have known;
4) the parent had known or ought to have foreseen that the subsidiary or its employees would rely on the parent using that superior knowledge for the employee’s protection.

So what you must show is the organisations were one and the same, and the parent knew exactly what was going on in the subsidiary. So a very close relationship is necessary between the companies.

These cases are hard fought as insurance companies which received a premium, and companies using asbestos, many years ago are still paying out compensation for the long term damage done by asbestos. They are determined to bring their liabilities to an end, so every now and then test cases are run. If an appeal is possible I am sure Cape PLC will take their chance and run its argument again.

The trouble for Cape is that it was a company heavily involved in asbestos, with knowledge of its dangers. Setting up subsidiary companies to concentrate in different business areas may have made sense in business terms, but in legal terms it did not create a barrier to liability for injury.

The full case report is at

The case title in the Court of Appeal is David Brian Chandler v Cape PLC [2012] EWCA Civ 525

Is there a safe speed for a motorcycle overtaking a stationary traffic queue?

If a motorcyclist is overtaking a line of traffic and hits a vehicle which pulls out of that line a claim for compensation will be defended. The argument is the motorcycle was being ridden too fast, or filtering was not safe.Traffic queues likely and motorcyle overtaking

Well I have a refreshing case to tell you about which might make the insurers think twice before arguing about speed and filtering. Continue reading “Is there a safe speed for a motorcycle overtaking a stationary traffic queue?”

Headway Devon Annual Regional Conference & Exhibition

Headway Devon are running their Annual Regional Conference & Exhibition

conference on  The Cost of Brain Injury  on Friday 19th October 2012

Venue: The Exeter Suite, Sandy Park, Conference Centre, Sandy Park Way, Exeter, DevonHeadway Devon annual regional conference and exhibition

The confirmed speakers are:

Continue reading “Headway Devon Annual Regional Conference & Exhibition”

Personal injury trusts and the cost of long term care

A personal injury trust can be a very good idea even if you are not receiving State means-tested benefits or local authority care. You must consider your situation today,  your situation in the future, and do exactly the same for those you claim benefits with.

A local authority must provide accommodation for vulnerable adults who fall outside the responsibility of the National Health Service. But the local authority can charge for the service if a person’s capital is between £14,250 and the upper capital limit which currently is £23,250.

If you need care and have received compensation for a personal injury, that compensation can be ignored in this capital assessment if it is protected by a personal injury trust. Setting up a personal injury trust is an obvious step if you are already receiving care. A trust can be just as necessary if you do not require care today, but may need it in the future. Continue reading “Personal injury trusts and the cost of long term care”

Bradley Wiggins calls for law to wear cycle helmets

Olympic time trial gold medallist Bradley Wiggins wants cycling helmets to be made compulsory after a man was knocked down and killed by an official London Olympics 2012 bus just outside the stadium last night. The accident occurred just before the Bradley Wiggins press conference. The Tour de France and gold medal hero took the opportunity to add his views to the cycle safety helmet debate.Bradley Wiggins says all cyclists should wear cycle helmets

“It’s dangerous and London is a busy city and a lot of traffic. I think we have to help ourselves sometimes,” said Wiggins after the incident.

Asked for his views on cycling safety in the capital, Bradley Wiggins said:

“I haven’t lived in London for 10 to 15 years now and it’s got a lot busier since I was riding a bike as a kid round here, and I got knocked off several times. Continue reading “Bradley Wiggins calls for law to wear cycle helmets”

Child seat not of correct size

A sad case which explains the approach which will be taken by Courts where a child is not sitting in the correct child safety seat.

A child called Emma was sitting in the rear of her mum’s car. They were driving along quite normally when a car came towards them, came across the road, and there was a collision. The driver at fault died from his injuries. His insurers admitted liability.Child baby seat and accident Continue reading “Child seat not of correct size”

Cyclist rides from pavement into car’s path

A 16 year old cyclist was riding along the pavement came into the road and was hit by a car travelling in the same direction.

The accident occurred at about 8 p.m. The claimant had been to fetch his bicycle from a friend’s house. The road was a long straight road with one carriageway in each direction and with a speed limit of 30 mph. For some of the way a footpath runs beside the road and the claimant was riding along that footpath. Continue reading “Cyclist rides from pavement into car’s path”

Highway must be dangerous

Road accidents caused by roads in poor condition are not always easy to pursue against the highway authority. This might seem odd, but the highways are maintained by the State, so the State gets to set the standard.

Here is an example of a decided High Court case where a vehicle overtook on a minor road. The wheels on the driver’s side of the overtaking vehicle were caught in a series of pot holes which tramlined the vehicle. The road had no kerb stones at the edges. The driver steered sharply to the left but lost control and left the road on the left side. Miraculously the car being overtaken was not hit, but the occupants of the overtaking car came off badly.

So what must the driver of the overtaking car prove to show the highway authority is liable to pay compensation for personal injuries?

The Claimant was driving a Land Rover on a country road for which involved Devon County Council was responsible. Continue reading “Highway must be dangerous”

Pedestrian taking a risk pays in contributory negligence

There is a trend in Court decisions where a driver is found to blame, but the pedestrian, cyclist or motorcyclist involved is found partly to blame. That means they have contributed to their injury – contributory negligence.

The theme in these cases is risk taking. The driver should have seen you, slowed down and been ready to stop, but you should not have taken a risk.

A recent case explains the law nicely.

In the early hours two men were going home from the pub. They had been drinking but were not drunk. They had to cross a two lane carriageway close to a roundabout. They used a crossing, but it was not controlled by lights, and they did not have priority over cars. One man held back and the other crossed. A taxi was on the roundabout and was to exit into the road the men were to cross. The taxi hit the man who decided to cross.

The accident was analyzed to show what should have been seen by the driver and pedestrian, what speed was sensible for the taxi, and how both should have behaved. The Judge saw the facts this way:

  • The bypass is one of five roads leading into and out of a roundabout. The taxi entered the roundabout from a road almost opposite the entrance to the bypass. For the taxi driver the bypass was his third exit. The accident occurred on what was for the injured pedestrian the nearside lane of the bypass. Just before the impact the taxi’s speed was about 25 to 30 mph and within the speed limit.
  • The pedestrians had crossed the two lanes of the bypass which led into the roundabout and reached the “refuge” half way across it.
  • The Judge found that the driver should have seen the two men on the refuge by the time he was about 30 metres away from the refuge.
  • The judge found that it was likely that the second pedestrian deliberately waited for the taxi to pass, but the Claimant decided to run across the road. In the words of the Judge the Claimant “took a risk setting off when, unless the driver took some avoiding action, an accident was likely”. Implicit in this finding is a finding that the pedestrian deliberately took the risk of trying to cross the road in front of the taxi.
  • The taxi driver gave evidence that he saw from about 25 to 50 metres away only one person on the refuge, who must have been the pedestrian who waited. He first saw the man who crossed at the last moment in a position on the offside front of his car (right side). He braked and swerved to the right but was unable to avoid a collision.
  • The Judge found that the driver should at about the 30 metre mark have seen both men on the refuge. Even on the driver’s account of seeing only one pedestrian he should have taken his foot off the accelerator as a precaution against any untoward movement by that pedestrian. The judge concluded that “with a better look out, and a slight easing of speed I am satisfied that the accident would have been avoided” because the pedestrian would then have crossed the road in front of the taxi.

So there you have it. The driver was found to blame, but the pedestrian was found to have Pedestrian accident with car crossing roadcontributed by two thirds. That means the taxi driver was liable to pay compensation, but the compensation was discounted by two thirds to account for the blame of the pedestrian.

The Court of Appeal considered an appeal from the pedestrian, but turned it down. For an appeal to be successful the Judge must have got the law wrong, applied it incorrectly, or misunderstood the facts. No such problem was found so the appeal was unsuccessful.

There is a careful balance to be struck in these cases. The law takes into account the potential damage which can be caused by a motor vehicle, so places a heavy responsibility on drivers. The other side of the balance is that pedestrians who are shown to take a risk will have to pay the price of their own responsibility for their own safety.

You will find a motorcyclist filtering past queuing traffic winning his case, but being criticised in contributory negligence if you click here.

The case was heard in May 2011 by the Court of Appeal and is called Belka v Prosperini [2011] EWCA Civ 6

Source –BAILLI



Motorcycle filtering past traffic queue

Ben was riding a Derbi GPR50 motorcycle on the A143 in the Great Barton area. In his direction traffic was queuing because of road works ahead. He decided to overtake the queue, but ran into the front of a coach emerging from a side road to his left. He did not see the coach as his view was blocked by a tractor and trailer which had stopped so it would not block a side road. The coach driver had the same problem.

The coach was crawling to get a view of the road, at about 4 mph. Ben was riding at about 20 mph. Ben knew the road so knew there was a side road.

Most important was that Ben was riding with a friend. The friend hung back behind the tractor and trailer because he knew the side road was there.

The coach came out at an angle, which means nearside first into the road. Of course the turn had to be made but driving in this way put more of the coach into the road before the driver could see right and left.

The coach driver did not see the motorcyclist until they collided.

The primary responsibility was the coach drivers as the coach was being driven into a major road. The Judge decided that the motorcyclist was riding too fast for the situation, and he knew there was a junction.

The Highway Code has some wise words:

The Highway Code, Rules for Motorcyclists (83-88) states (at Rule 88):

“Manoeuvring …. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that divers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.”

The Highway Code on Overtaking (162-169) states (at Rule 167):

“DO NOT overtake where you might come into conflict with other road users. For example

  • Approaching or at a road junction on either side of the road
  • Where traffic is queuing at junctions or road works.”

The High Court Judge said 30 per cent of the blame lay with the motorcyclist.

The case is called Ben Woodham v J M  Turner trading as Turners of Great Barton and was heard in June 2011. The judgment is available by clicking here. This is the High Court judgment which was changed on appeal.

The case then went to the Court of Appeal, the insurers of the coach arguing the partial blame of the motorcyclist was too low.

The Court of Appeal decision was tougher on the motorcyclist.

It was clear the accident would not have happened if the coach driver had only waited until she had a clear view to her right; instead she had elected to proceed when there was no effective view.

Equally the accident would not have occurred if Ben had not, contrary to the Highway Code, chosen to filter up on the offside of the queue of traffic when the gap left by the tractor meant a vehicle might come out of the junction. Added to this his speed was too high for evasive action.

In respect of relative blameworthiness, it seemed that the motorcyclist was as much to blame for the accident as the coach driver. Both parties were fifty per cent liable for the accident

The injuries were serious in the case, so an appeal by the insurers made financial sense. They save 50 per cent of the compensation which would have been due to Ben had he been found blameless.

Remember each of these cases depends on its own facts. This case does not say that every motorcyclist who filters alongside traffic will be partly to blame. It says this motorcyclist was partly to blame. If you are involved in a motorcycle accident get in touch for the advice of an experienced motorcycle accident solicitor.


Horse and rider accident with campervan

Horse and rider in accident with camper van

I come across equestrian accidents as I operate in an area where horse riding is very popular. Take a careful look at the facts of this case and decide the case for yourself. Don’t worry as I will let you know the answer.

The case I will tell you about involved a 14 year old girl called Sally. Sally had been riding horses for seven years so was an experienced rider.

Sally and her friend, Hayley, had been out riding. To get back to their yard they had to ride from a bridleway across a road, and ride along it for a short distance.

The speed limit on the road was 60 miles per hour.

Hayley crossed first without problem. Sally had hung back to practise a jump so there was a gap between the two horses emerging from the bridleway.

The vehicle was a camper van with a trailer driven at about 40 miles per hour.

There were other drivers behind the camper van. One said he knew from experience that riders often rode in pairs so he slowed in case a second horse appeared. All vehicles slowed when the first horse appeared and crossed the road, but the camper van then sped up again.

Sally rode her horse out into the road at a trot and collided with the camper van. She had not looked before emerging from the bridleway, she made a mistake. Sally was injured.

So judge this one for yourself.

Despite the Judge finding Sally had made a mistake the answer is the camper van driver was found to blame. He was well within the speed limit, but was driving too fast to stop if a second horse emerged. He was probably driving too fast if he was going to overtake the first horse. The fact other drivers slowed and the camper van accelerated was very significant.

So the rider wins her case, but what about her own fault. The Judge said 50 per cent blame on the rider’s part.

This was a High Court decision which went to the Court of Appeal on the 50 per cent contributory negligence finding alone. To change the decision of a Judge the Court of Appeal must find the decision was not open to the Judge on the facts or law in the case, so the decision stood. The decision reflects the heavy duty on the driver of a vehicle which is a “potentially dangerous weapon.”

Every case is different and depends on its own facts. Please do not make a judgment on your own case and let an experienced personal injury solicitor help you.

For the full case decision in Stoddart v Perucca.

For other contributory negligence examples.

Image source –



Cyclist jumps red light and wins compensation

Cyclist jumps a red traffic light and still wins compensation – but only just.

An accident between a cyclist and a taxi car happened at a T-junction controlled by traffic lights. The taxi went across the junction on a green light when a cyclist who had jumped a red light came from his left. The cyclist was badly injured and could not say what happened.

The cyclist won his case for compensation, but he lost 80 per cent as he was found to have contributed to his injury – contributory negligence.

So how did the cyclist win his case in the first place?

The taxi was travelling between 41 and 50 miles per hour when the speed limit was 30 miles per hour. Speed is very important as the reaction, braking time and braking distance are much longer at 41 to 50 mph compared with 30 mph.

The cyclist was not wearing high visibility clothing. This was not a factor as it was the speed of the taxi which was the problem, rather than not seeing a darkly dressed cyclist. The speed limit should be seen as an indication that a driver is likely to come upon hazards and may have to slow or stop.

The other side of the argument is there would have been no accident had the cyclist not jumped a red light. There was also time for the cyclist to brake or swerve, but the evidence suggested he was not looking. It was early in the morning so maybe he thought the way would be clear.

The case illustrates the heavy duty on the driver of a vehicle which is heavy and fast, and likely to do more damage than a cyclist or a pedestrian. On this basis the driver was to blame, but the partial blame of the cyclist was put at 80 per cent. That means the cyclist who was seriously injured will only receive 20 per cent of the compensation value of his injuries and loss.

I have not seen a full transcript of the High Court Judgment but a summary is available by clicking here.

For interesting guidance from the Cycling Tourist Club please click here.

For other examples of contributory negligence please click here.

The answer in all cases is to seek good advice from a personal injury solicitor.





Child brain injury and rehabilitation

Rehabilitation can make a real difference in acquired brain injury cases, particularly for child acquired brain injury.

If there is a clear case for compensation rehabilitation can be provided through the Rehabilitation Code. The rehabilitation is paid for by the insurance company of the party to blame, and it works quite separately from the compensation case. The purpose is to concentrate on the best recovery from an injury at the earliest stage.

Attitudes vary about rehabilitation as some insurers do not think there is a benefit. Some solicitors are reluctant as they want to keep their cards close to their chests. My experience of rehabilitation tells me you should grab the opportunity. The best possible recovery is much more valuable than compensation.

As an example of what can be achieved with rehabilitation here is a video from The Childrens’ Trust Tadworth:

Cylcling helmets and compensation for cycle accidents

Cycling helmets

When I act for a cyclist involved in an accident I always ask if a helmet was worn. The reason is that failure to wear a helmet can be used to reduce your compensation after a cycle accident.

Cycle helmet for protection in bicycle accident

The law may agree you have contributed to the injury by failing to wear a cycle helmet. This is called contributory negligence. The car driver is at fault, or negligent, by pulling out in front of you and causing the bicycle accident, but you are partly to blame for not wearing a cycle helmet, if wearing the helmet would have reduced the injury. You will be judged to have contributed to your injury, a percentage will be attached to that contribution, and that percentage will be deducted from your compensation. This is over-simplified so do read on.

Continue reading “Cylcling helmets and compensation for cycle accidents”

Legal cover and legal protection

Legal cover or legal protection are terms used for legal expenses insurance

Legal expenses insurance is designed to allow you to bring a compensation case without worrying about having to pay legal costs. I think of it as allowing the client to sleep at night not worrying about legal fees.

Legal costs are the fees of your own solicitor and the solicitors who represent the Defendant, plus the expenses the solicitors incur such as medical fees, police report, and barrister fees amongst others.

Many people have bought legal expenses insurance as an add-on to another policy. It is worth taking the time to understand how it works.You should not have to worry about legal fees
Continue reading “Legal cover and legal protection”

Changes to personal injury compensation claims

Why are changes coming to personal injury compensation claims?

The insurance industry lobby has won its argument that too many people are claiming compensation or personal injury and that the legal costs they pay are too high. If you do not change the rules insurance for drivers and employers will become even more expensive.

I do not agree with the arguments of the insurance industry but congratulations to them for persuading the politicians. Despite the country facing a major financial crisis the politicians are dedicating huge amounts of time to personal injury compensation claims.

The changes likely are:

  1. Legal aid will be more limited than it is today.
  2. If your lawyer is working under a conditional fee agreement, or no win no fee as it is called, the success fee will no longer be recovered from the other side. If solicitors and barristers want their success fee then the client will be paying it.
  3. If you buy after the event litigation insurance you will pay the premium win, lose or draw. To day you can recover it with your solicitor’s fees, expenses, and success fee.
  4. The reasons for these changes are the insurance industry complains it is costing them too much money, and the politicians believe someone claiming compensation should be at some financial risk.
  5. The risk of a claimant paying the other side’s costs if a case fails is to be limited. There may be no liability to pay those costs at all, or a financial limit may be set, and this may depend on how much money you have. Continue reading “Changes to personal injury compensation claims”

Paying the cost of personal injury claim

Paying the cost of a personal injury claim

Today a claimant bringing a personal injury compensation case can be protected from the risk of paying the other side’s fees if the case goes wrong and you have to pay legal costs. This risk can be covered by legal expenses insurance, trade union support, by having legal aid in the few cases for which it is available, and after the event insurance. Continue reading “Paying the cost of personal injury claim”

If you worked with asbestos keep a record

I recently met an old friend, David Carter, who remains a great friend and representative to all those who worked in the Devonport Royal Dockyard at Plymouth. He has long been an adviser to those who have suffered the consequences of asbestos, in his trade union position before retirement, and as a helpful friend since.

David wrote to the local papers with some very sensible advice to those who have worked with asbestos. He suggests you keep a written record of your employers and the work you did which exposed you to asbestos. He has in mind someone who suffers an asbestos disease many years after their employment. To gain compensation the first question will be where did you work, the dates, and how were you exposed to asbestos. Making a record today will produce a better record than your answers in twenty years time. Your record also makes it easier for your family to take action if you are too ill to help.

It is sad to be offering such advise, but it is very good advice. My experience of asbestos compensation cases is that the asbestos injury is made a little easier by the knowledge that some financial security will be left behind for the family. So make that employment record now following David’s advice below. If you do it will make winning compensation easier and quicker.

The full text of David Carter’s letter was printed in the Plymouth Herald with the headline:

“In time, nobody will remember us Yardies

It was in the late 1970s, after much trade union pressure, that the Ministry of Defence began an investigation into the possible health hazard of asbestos dust inhalation by employees working on ships under refit or repair.

The main activity of the investigation was at Devonport Dockyard. It happened to coincide with the latter part of a four-year modernisation of Ark Royal, in my view the last true aircraft carrier, with steam boilers, turbines and fitted with aircraft catapults and arrester gear.

My personal association with asbestos insulation started in 1947 as a 15-year-old apprentice, on a conducted tour of a ship in refit, walking through a messdeck where a painter was spraying asbestos material on the shipside. I was told the process was called SLA (sprayed limpet asbestos). The problems with dust occurred years later when SLA was removed in an uncontrolled manner, and the men, supervisors and managers were unaware of the dangers. Time has shown that asbestos disease has no respect of rank or authority.

So this letter is directed at men who are aged over 50, who once worked in the dockyard and may have been exposed to asbestos dust. I am not advocating any form of compensation claim, but I am strongly advising each of you should put pen to paper and record where you were working, what ships you remember working on, the names of your supervisors and the names and addresses of any living workmates. Sign it in the presence of a witness who should also sign, date and add an address. Then put it away in a place of safety. Don’t leave it for somebody else to do, remember there were 16,000 of us working in the yard during the Cold War years.

In time nobody is going to remember us and there are very few individual records in existence.


Pedestrians at risk from falling trees

The danger of falling trees and branches

The danger from falling trees

We look at trees as a benign benefit of nature, but when they fall the consequences can be awful.

The law approaches fall trees or falling branches as it does most things, by saying those responsible for the tree must take reasonable care to avoid accidents. The law rarely demands an absolute guarantee; it demands only that reasonable care be taken to avoid likely injury. That is the balance between those responsible for something, such as a tree, which can cause injury, and those walking beneath it who could be injured. Continue reading “Pedestrians at risk from falling trees”

Pedestrian road accident

How careful must a driver be?

Children playing in street – take extra care

Where a pedestrian is struck by a vehicle the driver of the vehicle is usually to blame for failing to take reasonable care. As ever there are arguments of contributory negligence against the pedestrian.

The driver is not always to blame as in a case where the pedestrian could not have been seen and gave the driver no chance to stop. Contributory negligence allows for the range of fault between driver and pedestrian. Continue reading “Pedestrian road accident”

Liability is admitted

Liability is admitted – can I relax?

The defendant has admitted liability, or the insurance company for the Defendant has admitted liability.

Admitting liability is quite common in personal injury compensation case. The Claimant and their representatives relax as the fight is cancelled, and all that is necessary is to sort out the compensation.

What might surprise you is that an admission made before Court proceedings can be withdrawn. Court rules are in place to mange the position where the parties do not agree to the withdrawal of an admission of liability. A further surprise is that a Defendant withdrawing does not have to show that new evidence has been discovered. Continue reading “Liability is admitted”

Referral fees – the truth

The truth about referral fees

This page is only of historical interest now, as referral fees cannot now be paid by solicitors for personal injury cases since 1 April 2013.

There are so many headlines and so few facts about referral fees in personal injury compensation cases.

Payment of fees and commissions for the introduction of business have always been a fact of business life in general. A referral fee is a payment for the introduction of a client.

Referral fees really took off in the personal injury field after legal aid was replaced by conditional fee agreements, or no win no fee as they are called. To “compensate” for removing legal aid solicitors were allowed to charge a success fee to reflect the risk they ran of not being paid if the case lost. Continue reading “Referral fees – the truth”

50/50 50:50 50-50 fifty fifty

50/50 50:50 50-50 fifty fifty

50/50 is a term used where it is thought the blame for an accident is equally shared between those involved.

The term is often used by insurance companies who want to reduce the payment they should make. In law very few cases are truly 50/50, but it is a term too often used in negotiation.

A 50/50 settlement might be suggested where there are no independent witnesses, where it is your word against the word of someone else. You might well be believed in Court, and the other person’s evidence rejected, but the insurance company are not keen to pay the legal costs of finding out. In truth, if you risked paying the legal costs, you might feel less strongly about the fight. Continue reading “50/50 50:50 50-50 fifty fifty”

Gratuitous care in compensation claims

Gratuitous care

If you have cared for the victim of accident or injury and the victim is entitled to recover compensation then a claim may be made for gratuitous care.

Gratuitous care means care and attention above and beyond what might usually be expected within your existing arrangement. Gratuitous care does not mean nursing, it means looking after someone, being there to fetch and carry, visiting at hospital, and driving or travelling with the accident victim to medical appointments. These are examples of things you might reasonably do for someone else. If that someone else has a claim for compensation then the gratuitous care you provided can be added to that claim. You cannot make a claim in your own right, so the care has to be compensated through the claim of the injured person. Any compensation recovered is held for you by the injured person after their claim for compensation is successful.

How is gratuitous care calculated? Continue reading “Gratuitous care in compensation claims”

Mesothelioma – environmental risk of asbestos

How much asbestos exposure to prove mesothelioma compensation case?

Mesothelioma is a cancer caused by asbestos. Unlike most asbestos related conditions such as pleural plaque, diffuse pleural plaque, and asbestosis, the cancer called mesothelioma can be caused without a good deal of exposure to asbestos. There is often a period of many years between exposure to asbestos and the diagnosis of mesothelioma. The law has wrestled with the proper principles to apply in such cases. A level of pragmatism has been applied as it is not always possible to look back 30 or 40 years and identify where the exposure to asbestos occurred, and the extent of that asbestos exposure. Continue reading “Mesothelioma – environmental risk of asbestos”

Industrial deafness in the workplace

Industrial deafness still common workplace injury

Industrial deafness as a workplace injury has been a known risk for many years.

The problem of industrial deafness, and how to avoid it, has been known to employers for many years. As long ago as 1963, that is 48 years ago, employers were informed by the then government of the danger. The guideline “acceptable” level of noise was a compromise between what could be achieved with the equipment installed in factories, and the safety of employees. So even at or below the “acceptable” noise level people could still suffer industrial deafness, but in theory the level of exposure meant a lower level of deafness. The compromise was to reduce the noise level for workers, but not to do it overnight to avoid too much immediate expense. Continue reading “Industrial deafness in the workplace”

Compensation recovery scheme – recoupment

Compensation recovery scheme

State recovery of benefits paid after accident or injury – recoupment of benefits

The State can recover benefits paid after accident or injury if the person injured brings a successful claim for compensation. Recovery is only possible if the compensation case is successful, as the Government cannot bring a separate action.

The benefits are recovered from the “compensator” which means the insurance company or Defendant who has to pay compensation. Let us explain how this works. Continue reading “Compensation recovery scheme – recoupment”

Interim payment in personal injury

Interim payment in a personal injury case

An interim payment is a payment on account of the compensation you are likely to receive in your claim for compensation.

After an accident your earnings may be reduced or even stopped. You may have to incur expenses to ensure recovery from injury, or to repair a damaged vehicle or property. Personal injury cases can take time and an interim payment could be the difference between feeling you have to accept a quick low settlement because you are broke and getting a proper compensation payment. If you have a good case for compensation after an accident you should not be in this position.

You should not be forced to settle your case too cheaply because you are short of money as a result of an accident. The purpose of an interim payment is to level the playing field  between you and the Defendant, often backed by an insurance company, who has caused your accident. Sometimes insurance companies will try to drag out a settlement to increase the financial pressure on you to accept a low offer. You should not be in this position and let us tell you how interim payments are meant to work.

Continue reading “Interim payment in personal injury”

Legal expenses insurance according to Consumer Focus

What does legal expenses insurance mean to you?

Consumer Focus set out to see what legal expenses insurance means to you.

Legal expenses insurance, sometimes called before the event insurance, is sold very effectively, but not explained well in my opinion. Most people are sold this insurance when they insure vehicles, and you often see it included in other insurance sales, household insurance being a good example. Look for it in your next policy renewal, as you usually have to deselect it if you do not want to buy. We will explain how legal expenses insurance works. Continue reading “Legal expenses insurance according to Consumer Focus”

Accident compensation claims repay NHS

The cost of motor insurance and the NHS factor

If you bring a successful compensation case after an accident which involves an insured vehicle the Government can reclaim the cost of NHS treatment from the insurer of that vehicle. You might be surprised to learn how much money is paid across to the NHS from our insurance premiums.

The insurance industry is running a campaign which targets the fees paid to claimant lawyers. This campaign has been shown to be untrue in the findings of the House of Commons Transport Committee. Fraud, young drivers, and referral fees paid within the insurance industry were some of the main factors which increased insurance premiums according to the Committee.

Something which was not raised by the Committee was the fact the Government wants its money back in the event of a road traffic accident, an accident at work, an accident resulting in a public liability claim, or product liability. The Government point is that money has been paid out due to an accident which is someone’s fault. That someone, or more accurately their insurance company, should pay back the Government’s money. We hear complaints about a claims culture, but our Government is already on the case and claiming back its own spend. Let us tell you more. Continue reading “Accident compensation claims repay NHS”

Rehabilitation after accident

Rehabilitation in personal injury compensation claims

Why and how rehabilitation can work for you

You will appreciate from other pages of this site that my aim is to achieve maximum compensation for my clients. I also try to gain the maximum benefit from the Rehabilitation Code.

Compensation is designed to put you back in the position you would have been had the accident not happened. Think of it as a glorified expenses claim, with a not very generous amount on top for the injury. Compensation does not make you better off, and it often takes time to complete a case. It is here that the Rehabilitation Code has an important part to play. Make sure you are getting the maximum benefit from rehabilitation paid for by the insurer of the party to blame for your accident. Continue reading “Rehabilitation after accident”

Employers’ liability for personal injury at work

Employers’ liability

Workplace accident claim

The case if Vaile v Havering London Borough Council is case is a good example of a workplace accident claim. The decision is based on the law of negligence.

Negligence is the failure to take reasonable care for those who may be affected by your action or inaction, which causes loss and injury. Remember the law only demands reasonable care, which is a mile from a guarantee of safety. An employer should stop and think about what it asks of its employees. A description of the case will help you learn more about accidents and injury at work. Continue reading “Employers’ liability for personal injury at work”

Personal Injury accident at Work

Personal Injury at Work

How to avoid accidents and injury at work

I started my career as a personal injury solicitor working for those who suffered personal injury at work. What is striking is that although the law has been changed to make the workplace safer, attitudes have not altered.

A company is a financial vehicle designed to produce profit. That aim which we all understand clashes with the need to have a completely safe workplace and avoid workplace accidents. That balance is dealt with by the use of reasonable or reasonably practicable in the various laws which apply. Let us explain how the law deals with this difficult balance for those who suffer personal injury at work. Continue reading “Personal Injury accident at Work”

Workplace accident claim

Workplace accident claim

Workplace accidents are avoidable which means accidents at work should not happen. Compensation can be claimed for the consequences of a workplace accident.

The workplace must be risk assessed to avoid accidents and injury at work. If a proper assessment is carried out why do accidents still happen.

If you would like to discuss an accident at work please contact us for a chat without obligation.

For more information please read on. Continue reading “Workplace accident claim”

Transport Committee – report on rising insurance cost

Report of transport committee of House of Commons

11 March 2011

I am pleased to bring you the Committee findings as I was one of those who provided evidence.

Fraud is one of the main factors driving up the cost of motor insurance, says the cross party transport committee of the House of Commons. Wider access to justice should not provide a licence to make false personal injury claims under car insurance policies. A dedicated police unit – paid for by the insurance industry – should be established to tackle this escalating problem.

Let us tell you more. Continue reading “Transport Committee – report on rising insurance cost”

Health and safety and common sense

Carelessness and the lack of forethought cause accidents and poor medical treatment, not compensation.

Health and safety should be common sense

Our Government is very concerned about health and safety, as well as the compensation culture, claims management companies, and no win no fee advertising.

In a review published as “A report by Lord Young of Graffham to the Prime Minister following a Whitehall‑wide review of the operation of health and safety laws and the growth of the compensation culture” the only statistics shown told us major injuries at work are declining. The only graph in the report is at page 44.

The report is extraordinary in many ways. It is “a Whitehall-wide review” based more on perception than fact, and we would like to tell you more. Continue reading “Health and safety and common sense”

Motor insurance premiums rising

Motor insurance premiums are rising sharply

On Tuesday 9 November 2010, the House of Commons transport committee is to ask the insurance companies why insurance premiums are rising.

The media reported premiums have risen 51% in the past 12 months. This is the biggest increase since records have been kept in 1994. The effect depends on your risk profile, the greatest rise being in premiums for young males. Ian Crowder of the AA is reported to say “For every £100 taken in premium over the past year, £123 has been paid out in claims.”

There is a war of words and statistics raging at the moment. The Government is soon to make up its mind how it feels about compensation, insurance companies, their premiums, and the fees of personal injury lawyers.

My position on any such debate is you must tell the whole story. Lobbying on the basis of sound bites does not allow a true understanding, and will not produce the right balance. Let me explain the whole picture for you. Continue reading “Motor insurance premiums rising”

Local authority care

The Court of Appeal was asked to decide if a public authority exercised its decision making powers correctly.
The point at issue was whether the Council could change the help it gave without a change in a person’s circumstances.

Should local authority pay for care?

Understanding how local authorities make decisions as to entitlement to care is not easy. So a case before one of our higher Courts which examines the question is a great help. An important case about local authority and payment for care came before the Court of Appeal through an application for judicial review. The Court was asked to decide if a public authority exercised its decision making powers correctly.

The point at issue was whether the Council could change the help it gave without a change in a person’s circumstances.

The case involved Elaine McDonald, 67, a former Scottish Ballet principal. We would like to tell you more. Continue reading “Local authority care”

Identifying risk of injury to employees – protective equipment

Explanation of employer’s duty to prevent risks and protect by use of personal protective equipment – gloves in this example.

Preventing accidents and injury at work

I have explained in other articles how the law looks at prevention of accidents and injury at work. Some years ago lawyers acting for Claimants had to try to prove an employer should have been aware of a hazard, and should have protected its employees. The law used the benefit of hindsight to see how an accident or injury at work could have been avoided.

Much of the law is now based on regulations which impose a duty to risk assess before a task is undertaken. Prevention rather than cure seems to make sense. It is this process of risk assessment which has got a bad name by those who shout about the claims culture.

What is wrong with demanding that a job be properly assessed before asking an employee to do it? Employees are not guinea pigs testing a work process to see what might go wrong. Continue reading “Identifying risk of injury to employees – protective equipment”

Compensation culture – do we have one?

Lord Young admitted that the “perception” of a growing compensation culture was not wholly supported by the facts, although the NHS Litigation Authority had seen a 10 per cent annual rise in claims during the last two years.

Compensation culture – have we got one?

Lord Young has been put in charge of reviews in of compensation and health and safety.

He has already answered my question in a report in the Financial Times on 15 October 2010:

Lord Young admitted that the “perception” of a growing compensation culture was not wholly supported by the facts, although the NHS Litigation Authority had seen a 10 per cent annual rise in claims during the last two years.

So there you go, the man in charge says the fear of a compensation culture is not supported by the facts. The fuss is created by tacky advertisements by solicitors and middle men, and by the difficulty that some organisations and events experience when trying to get insurance. Continue reading “Compensation culture – do we have one?”

More confusion for asbestos victims

Who should pay for asbestos injury?

Many headlines and reports were written about an asbestos decision made in The Court of Appeal on 8 October 2010.

The case was called the employers’ liability “trigger litigation.”

The issue was whether an insurance company should pay compensation for the employer found liable for the injury based on the time the injured person was exposed to asbestos, or the date when the injury starts to become apparent, for example when a tumour actually starts to develop. That is a very important question for the insurer, and very important for those injured by exposure to asbestos. Continue reading “More confusion for asbestos victims”

Complaints and the Legal Ombudsman

How the Legal Ombudsman will approach resolving complaints

From 6 October 2010 the Legal Ombudsman will play a significant role in resolving complaints about legal service, and solicitors must tell their clients about the right to complain.

The Legal Ombudsman has stated that they will take a different approach to resolving complaints from their predecessors but what will this mean in practice? The guide we have set out provides a summary of the rules under which the Legal Ombudsman will handle complaints, the remedies available to it and the fee it will charge for handling complaints. This guide is based on the Legal Ombudsman’s scheme rules. Continue reading “Complaints and the Legal Ombudsman”

Contributory negligence examples

The concept of contributory negligence is based on a claimant being partly responsible for the damage. The clearest example is a car driver who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage – the injury.

Contributory negligence needs some explanation.

Contributory negligence is sometimes called partial fault, but this is confusing. The concept is based on a claimant being partly responsible for the damage. I am asked about 50:50 offers to settle personal injury cases. They are usually just compromise offers which have no real basis in law.

seat belt and contributory negligence

A good example to start with is a car driver or passenger who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage (the injury in this example).  Another example is where an employee has failed to wear safety equipment. An accident occurs for other reasons, but the failure to wear safety equipment contributes to the injury, not the accident. If this claim is upheld by the court, the employer can suggest that any damages awarded to the complainant should be reduced by an amount that represents the portion of the blame assumed by the employee. If a claimant is found to have contributed by 20 per cent, that same 20 per cent will be deducted from the compensation received. Continue reading “Contributory negligence examples”

Tracing insurance company – industrial disease

Tracing employers’ liability insurers

The need to trace the employers’ liability insurer of a company arises when a personal injury claim is to be made based on employment many years ago. Cases involving asbestos exposure and industrial deafness are the classic example.

If the employer company no longer exists, then the usual route is to track down their insurance company at the time. A Court will usually agree to restore the company to the “record” as the process is called, and the insurer will pay any compensation found to be due. No problem you might say, but what if you cannot find the insurance company. Continue reading “Tracing insurance company – industrial disease”

Work at Height Regulations 2005

Safety when working at height

Historically most personal injury cases were based in the law of negligence. Negligence is the failure to take reasonable care to avoid likely injury. Over recent years health and safety regulations have been brought into effect. These are European regulations which become part of our law.

The difference between negligence and these regulations is that rather than a rather vague law of carelessness, we now have a very specific set of regulations. A good example is the Work at Height Regulations 2005.

ladder safety work at height regulations

The Regulation starts by saying you should avoid work at height. Avoid the hazard in the first place is the starting point. You must then assess the safe way to undertake a task, that assessment must be undertaken by a properly qualified person, and all involved in the work must be trained. Health and Safety is sometimes seen as a joke, probably by those who do not work at height.

A recent case in the Court of Appeal is a good illustration of the Work at Height Regulations in operation. Continue reading “Work at Height Regulations 2005”

Motorcycle filtering through traffic

Motorcycle, scooter and moped filtering in and past traffic

Filtering through traffic is one of the many advantages of riding a motorcycle, a scooter, or a moped. The downside is that it is one of the most dangerous things you can do. Drivers fail to see bikes at the best of times, let alone when you are approaching in a way they do not expect. Drivers who ride motorcycles understand, but drivers who only drive are constantly surprised by what riders can do, and they fail to take that into account. They do not think bike, or bicycle for that matter.Risk of motorcycle filtering through traffic Continue reading “Motorcycle filtering through traffic”

Complain about a solicitor

Complain about solicitor

You might think this an odd topic for a solicitor’s website. I take the view we should be as open as possible about problems, and the Law Society seems to agree. I will set out why complaints are made, and how they ought to be dealt with.

Sometimes the job does not go right, but the usual reasons for complaining are caused by poor communication. At the outset of work a solicitor must set out in writing what is to be done, with an estimate of the time and cost involved. That should not be difficult, but it can sometimes be vague. The client goes away from a meeting thinking everything is clear, the letter is vague, and immediately you are on course to an unhappy relationship with your solicitor.

We are not a nation of people who complain, but sometimes you have no choice. Continue reading “Complain about a solicitor”

Pleural plaques

Pleural plaques

The inhalation of asbestos can cause disease in the lung tissues themselves and in the thin surface membranes that cover the lungs – the pleurae. Pleural plaques are discrete localised areas of fibrosis that typically affect the lining of the inner chest wall (the parietal pleura).

They arise from exposure to asbestos. To all intents and purposes pleural plaques currently found in the British population have been occupationally caused (in contrast to some parts of the world where environmental exposures to asbestos cause an important background incidence of plaque formation).

The degree of exposure sufficient to cause pleural plaques is much lower than that required to cause asbestos-related disease of lung tissue (for example asbestosis), and plaques are widely accepted to be the commonest medical manifestation of asbestos exposure in the population at large.

lung x ray pleural plaques Continue reading “Pleural plaques”

Recovering cost of hospice care in asbestos compensation case

DAMAGES — Personal injuries — Hospice care — Deceased contracting lung cancer from exposure to asbestos in course of employment with defendant — Deceased’s estate seeking damages against employer and including claims on behalf of children, grandchildren and great grandchildren — Claim including costs of care incurred by hospice in providing gratuitous palliative treatment to deceased — Whether recoverable

In personal injury cases it is possible to recover for the care provided to an injured person. This care is usually provided by family members, and is care above and beyond what would normally be provided. The law gives it the name “gratuitous care.”

The calculation of gratuitous care is based on the hours of care provided multiplied by a non-commercial care rate. The rate is intended to represent the actual cost of paying someone to provide the care less the profit margin. In very rough terms, if the commercial rate in your area is £9 per hour, you could claim £6 per hour for the gratuitous care.

Any compensation recovered under the heading of gratuitous care is held in trust for the person who provided the care.

A clever extension of this principle was argued in a recent case where the care had been provided by a charitable hospice. The Judge saw the care from the hospice as similar to the voluntary care provided by a family member, and took the view any compensation recovered would be held in trust for the hospice. Continue reading “Recovering cost of hospice care in asbestos compensation case”

Third party capture

Third party capture

Third party capture is the name given to a practice operated by some insurance companies after road traffic accidents. They know their own driver is at fault so the insurer will contact the innocent party direct, before that person has time to seek their own advice. The third party, that is the person not responsible for the accident, has been “captured.” Continue reading “Third party capture”

Google sued over walking directions

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:Image shows pedestrians crossing road

Salt Lake City — A pedestrian injured by a motorist while following an online route has filed a lawsuit claiming Google Inc. supplied unsafe directions. Continue reading “Google sued over walking directions”

Choose a solicitor

When choosing a personal injury solicitor you should make a personal choice. Your personal injury solicitor will have to understand how an accident has affected your life, your family life, and your work. Your finances will have to be discussed, and more than likely your medical records. All quite personal stuff, so a personal choice has to be made, not an internet comparison.

Choose a solicitor

Choosing a solicitor to represent you is an important decision.

Like so many areas this decision is helped by information you can gather on the internet. Comparing insurance quotes is now pretty quick and straightforward. Finding the cheapest television is now so much simpler. Before choosing a solicitor in this way you should think about what you are actually looking for. Continue reading “Choose a solicitor”

How is a personal injury solicitor paid?

How a personal injury solicitor is paid and how to protect yourself from costs awards

How are personal injury solicitors paid?

There should be no mystery about how a personal injury solicitor is paid for the work carried out in your personal injury claim for compensation. You as the client must be given detailed advice.

Please note this page applies to personal injury cases with funding arranged before 1 April 2013. Funding means that agreement as to how you will pay your solicitor and deal with the risk of paying the other side’s legal costs has been finalised. For cases funded beyond 1 April 2013 do read this page for general guidance, but then click here as the law has changed quite significantly.

The basic cost is an hourly rate multiplied by the time spent on your case. Most personal injury solicitors will follow the Guideline Rates set by the Advisory Committee on Costs. These are based on the experience of your solicitor and the cost of practising in the various regions of the country, London being more expensive than Exeter for example .

A solicitor’s bill is made up of a charge for their time, plus VAT, and the expenses incurred on your behalf, known as disbursements. For these purposes I will put all those terms together and call them solicitors costs. Continue reading “How is a personal injury solicitor paid?”

Inquest representation and public funding

Representation at an Inquest and the cost

A very useful article appeared in the Law Society Gazette on Monday 17 May 2010 by Azmina Gulamhusein

The charitable organisation INQUEST has criticised the current inquest system because ‘there is no equity of arms in terms of legal funding’. While public or commercial bodies involved in an inquest invariably have legal representation, bereaved families can only obtain funding from the Legal Services Commission (that means legal aid) to cover advocacy at the hearing in exceptional cases. This leads to an unfair disparity between the parties, which was highlighted in the recent case of R (on the application of Humberstone) v Legal Services Commission. Continue reading “Inquest representation and public funding”

Care and carers

Who cares for the carer?

For all the best reasons we want to care when a family member is in need.

My experience tells me that carers do not think about the toll the care regime takes on them. You have to be forced to stop and think, particularly because your relationship with the injured person is going to change. For instance a wife becomes a carer, and a serious injury may mean the injured person is no longer the person you married. That is a tough message, but it has to be weighed up when looking at a care regime. Continue reading “Care and carers”

Child head injury

Head injury and children

I acted for a family, two of whom died in a road accident. A young girl was a rear seat 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. The tendency is to concentrate on the obvious physical injuries and survival. I clearly remembering handling a road accident case in which two people died, and a surviving 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. Continue reading “Child head injury”

Child acquired head injury

Acquired head injury in children

Head injuries in children are difficult personal injury compensation cases and require experience and expertise.

At the outset of such a case much time and effort is spend on the child’s medical, educational and financial needs. The support available varies depending on where you live, but if you do not know what help you are entitled to, where do you start.

Compensation is calculated on the difference the injury has made, we compare the before and after. The calculation is in terms of money, and the most significant areas are the cost of care, and earnings loss or reduction. Much easier to weigh up the consequences for someone injured in their thirties, whose career path is already decided. With a seriously injured child the presentation of the case requires experienced help. Continue reading “Child acquired head injury”

Expert evidence

Expert evidence in compensation cases

Only experts can give opinion in a compensation case, and the opinion must be limited to the field of expertise.

A medical expert is the usual expert, but again the medical expert must keep to their own area of expertise. Accident compensation cases sometimes need the help of an accident reconstruction expert, an engineer, an occupational or employment expert, or an accountant. Wherever the Court needs expertise to assist in coming to a decision you will be allowed to instruct an expert. The Courts can be restrictive, and have the power to limit the evidence to the evidence necessary to prove the case. The lower the value of the likely compensation, the less likely you are to be able to rely on experts. Continue reading “Expert evidence”


Mitigation means keeping your losses to a minimum, reasonableness being the guiding factor.

Mitigation means keeping your losses after an accident or injury to a minimum. Reasonableness is the guiding principle.

When you claim compensation after an accident you have a duty to mitigate, or keep your losses to a reasonable minimum. Your response to the problems created by the accident must be reasonable. This applies to your ability to work, or having a damaged item repaired reasonably quickly to avoid a reduction in its value. Continue reading “Mitigation”

Claim for self employed

Self employed – accident compensation

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 cases for compensation by the self employed 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. Continue reading “Claim for self employed”

Paraplegia-spinal injury


In simple terms paraplegia means below 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. Continue reading “Paraplegia-spinal injury”

Spinal injury

Spinal Injury

Contributory negligence can reduce compensation significantly when the injury is serious

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. Continue reading “Spinal injury”

Tractor turns right

Tractor turns right across overtaking motorcyclist

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. Continue reading “Tractor turns right”

Contributory negligence or partly to blame

Contributory negligence or partial fault is an important subject and worthy of its own section.

You prove your case by showing you were injured by someone who did not take reasonable care for your safety. They might be able to show you were partially to blame and contributed to the injury. Your contribution is assessed as a percentage. That same percentage is knocked off your compensation. That may sound fair enough, but the effect is harsh. Losing 50 per cent of a £2,000 claim may not be the end of the world, but in a larger case, where most of the compensation is ear-marked to pay for long term care, losing even a small percentage for contributory negligence, can be very expensive indeed. Continue reading “Contributory negligence or partly to blame”

Recovering costs

Recovering costs from the other side

It might surprise you to learn there is no automatic rule which says if you win your case your costs will be paid by the losing side. It happens in the vast majority of cases, but it is not an absolute rule. The practice comes from the affordability of the costs to the losing party, as that party is usually either insured or a trade union member. If there is such financial backing behind a losing party then it is very very likely a costs order will be made against them. Continue reading “Recovering costs”

Conditional fee agreement

Conditional fee agreement

No win no fee

Conditional fee agreement is the proper name for “no win no fee.” It means your own solicitors fees are only payable by you in the event of success. Success is defined in the agreement, but in compensation cases it usually means recovering a compensation payment in your favour. There is a lot to understand. Continue reading “Conditional fee agreement”

Legal aid

Legal aid

Legal aid is a thing of the past in most personal injury cases.

The legal aid system was set up for the right reasons, to allow those who could not afford a solicitor, to use one. If the case was unsuccessful your own solicitor would receive some payment from the legal aid fund, your expenses/disbursements would be paid, and you would have no bill to pay. depending on your financial circumstances you may have paid a contribution towards your legal aid, but the contribution was nothing like the full legal bill. Continue reading “Legal aid”

Legal expenses insurance

Legal expenses insurance

Lots of people have this insurance as part of policies on their car, motorcycle, van or house. The policy can be bought as a stand alone policy, but few people search it out. The policy will allow you to pursue a compensation case, and cover your liability to pay your own solicitor’s costs and disbursements, and those of the other side, if your case fails.

Your legal expenses insurer must be satisfied the case has reasonable prospects of success, and this is necessary all through the case. Just like the after the event insurance the insurer can pull out if those prospects are no longer reasonable. Continue reading “Legal expenses insurance”

Credit hire

Credit hire

Credit hire exists to provide a replacement vehicle after an accident. You as the hirer do not have to pay, as the bill is presented to the insurer of the person who caused the accident.

To get a credit hire vehicle you must satisfy these tests:Credit hire car after road traffic accident

  • Accident is the fault of another motorist.
  • The motorist at fault is insured.
  • You need a replacement vehicle while yours is being repaired, and have no other vehicle available. Continue reading “Credit hire”

Politics of compensation

Politics of compensation

Newspaper headlines tell you of large compensation awards, fraudulent claims, or the rising cost of road accident claims to insurers. What you do not read is how organisations are reimbursed as a result of a compensation case being brought.

After a road accident the Government can recover up to £505  for accident and emergency treatment, and £620 per day  for inpatient treatment. The maximum recoverable is £37,100. An additional payment for ambulance call out is £159.   The money is only paid if the person treated by the NHS makes a successful claim. The payment is made by the insurance company of the party responsible for the accident or injury. Continue reading “Politics of compensation”