Ministry of Justice Reforming the Soft Tissue Injury (‘whiplash’)

Claims Process Consultation

Response on behalf of motorcycleriders and other vulnerable road users

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Executive Summary

• Fletchers Solicitors is one of the largest motorcycle accident specialist law firms in England & Wales, dealing with an estimated 1 in 3 motorcycle accidents.

• Motorcyclists, like cyclists and pedestrians, are vulnerable road users – they are 10x more likely than a vehicle occupant to be injured in a road traffic accident.

• The cost of motorcycle insurance is already very low – around 1/3rd of the cost of car insurance.

• Fraudulent motorcycle injury claims are virtually non-existent.

• Motorcycle injury cases are not ‘minor whiplash’ cases. The injuries are usually much more complex, often stemming from a secondary impact as a result of not having the same protection that vehicle occupants have.

• Bike accidents are not straight-forward. Nearly twice as many cases drop out at Stage 1 of the RTA portal process when compared to the average. 29% require litigation.

• Life as a ‘litigant in person’ will therefore be much more common, and much more difficult, with a motorcycle accident than a car accident.

• Bike accidents below £25,000 are already subject to a fixed costs regime, meaning that bikers can get essential legal advice, while costs remain proportionate at all times for lower value claims.

• Any reforms that are introduced following this consultation, must use the proposed definition and be limited to the ‘occupant’ of a motor vehicle in order to protect vulnerable road users. Emphasis and clarity should be given by the MOJ on this distinction : that bikers, cyclists and pedestrians are not ‘occupants’. Any rise in the small claims limit should also be limited to that same definition.

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About this document This document is produced in response to the Ministry of Justice’s “Reforming the Soft Tissue Injury (‘Whiplash’) Claims Process” consultation. The response is produced by Fletchers Solicitors on behalf of motorcycle riders and the motorcycle claims industry, and is an expression of our viewpoint based on our nearly 30 year history of dealing with motorcycle accident claims.

As a firm we do not deal with a lot of car accident/’whiplash’ claims and our focus and specialism has always been with accidents on two wheel vehicles. However, there is a risk that bikers and other vulnerable road users may be adversely affected by these latest reforms. Whilst we believe there are still important questions around the perceived compensation culture, whiplash epidemic and real level of fraud in the industry, industry representatives such as MASS and APIL will no doubt make their case on behalf of the wider industry. It is our fear that proposals designed to combat these perceived issues may end up negatively impacting bikers and other vulnerable road users who regardless of how the wider debate pans out, are certainly not part of any perceived problem.

We are therefore formally responding to elements of the consultation that we feel may negatively impact bikers and other vulnerable road users. We feel uniquely placed to do this on behalf of bikers in England and Wales, as well as the motorbike accident industry, which in itself is very small and highly specialised.

Consultation Questions In this document, our objective is to show that the current definition of RTA related soft tissue injury claims used in previous reforms, referencing parts 21-24 in the consultation and specifically the definition given in the RTA PAP 16(a), is the correct definition to identify the type of claim the ministry of justice wants to tackle, while at the same time protecting vulnerable road users.

We would therefore answer Question One of the consultation with a “yes” and believe the current definition should be used in relation to any changes to the level of compensation paid for minor road traffic accident soft tissue injury claims, and the introduction of a fixed tariff system.

Specifically, it is the element of the definition that relates to “the occupant of a motor-vehicle” that we believe is crucial in protecting vulnerable road users. We would ask the Ministry of Justice to give real clarity to this point when using this existing definition to avoid unnecessary confusion, litigation and cost. This would also show a real intent from the government to protect society’s most vulnerable road users.

This document also intends to provide evidence and arguments that the small claims limit rise should also be limited to those claims which fall under the above definition. With reference to Part 4 of the consultation and in answer to Question 13: We believe Option two would be the most appropriate option. HOWEVER, we believe that vulnerable road users with more complex cases should be protected and should be able to seek legal representation and therefore, the definition of “road traffic accidents” as it relates to the small claims limit rise should be the same as the definition given in the RTA PAP 16(a) as above.

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On the basis that the RTA PAP 16(a) definition is used for all reforms, we believe this will protect vulnerable road users such as bikers and therefore are not compelled to answer further questions that then ultimately relate to a different type of road user, i.e. the occupants of vehicles such as vans, buses and cars. Industry representatives such as MASS and APIL will no doubt respond in full.

Who are we?Fletchers Solicitors are a specialist personal injury firm dealing with Motorcycle Accidents, Medical Negligence cases and any type of case that results in serious, life changing injuries. We are based in Southport in the North West of England, and currently employ over 350 people.

The firm was established in 1987. Founder (and current Chairman) Rob Fletcher looked to combine his legal prowess, passion for helping injured people and his keen interest in motorcycles to create a specialist motorcycle accident team that has remained the cornerstone of the practice to this day. Our current CEO Ed Fletcher has continued to build on this foundation after he himself severed his spinal cord in a motorbike accident in 1999. From that moment, he dedicated the rest of his working life to helping those seriously injured in motorcycle accidents and created an award winning, specialist serious injury team. With nearly 30 years’ experience dealing with motorcycle accidents, we have worked alongside several of the large motorcycle insurance brokers and are a significant part of the biker community. We estimate that in total we have dealt with over 70,000 motorcycle accident claims across England & Wales. In the last three years alone, we have dealt with over 12,500 motorcycle accidents.

This year we expect to have dealt with 4700 motorcycle accident cases. The most recent government figures state that there are 18,752 motorcycle casualties in the UK. 1 While not every casualty will result in a legal case, nor are we able to deal with cases outside of England and Wales, on these figures alone we deal with an estimated 25% of all motorcycle accidents in the UK. In reality, taking everything into account, the figure is probably nearer 30% or 1 in 3.

If you come off your motorcycle in an accident and suffer an injury then there is at least a 1 in 4 chance that you will be in touch with Fletchers to provide assistance. Therefore, we feel uniquely placed to provide this consultation with information and data relating to motorcycle accidents, as well as providing a voice for the 18,000 motorcyclists injured every year.

1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447673/motorcyclist-casualties-2013-data.pdf

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The Vulnerable 1%

Injuries to motorcyclists are out of proportion to their presence on our roads. Motorcyclists are just 1% of the total road traffic, but account for 19% of all road user deaths. This sadly makes bikers 28 times more likely to be killed in a road traffic accident than car occupants, per mile ridden. In 2013 4,866 motorcyclists were seriously injured and everyday 30 motorcyclists are killed or injured at road junctions. 2 3 It is clear from the statistics that motorcyclists are highly vulnerable road users.

In 2013 there was a total of approximately 183,400 casualties (injuries at all levels from minor to fatal) on the UK’s roads. 18,752 of those were motorcycle casualties, which is approximately 10% of all casualties. 4 For only 1% of all road users this again highlights the vulnerability of motorcyclists in comparison to car drivers.

It is also worthy of note that in 2013, as well as the 331 motorcyclists who were killed on the roads, 398 pedestrians were also killed. While this document focusses on our particular area of expertise, namely motorcyclists, we believe that ALL vulnerable road users should be protected from the potential impacts of the proposed reforms (Motorcyclists, pedestrians and cyclists).

It is clear that road users who do not have the added protection of a vehicle, i.e. those who are NOT the “occupant of a motor vehicle”, are vulnerable road users, and should be protected by society wherever possible.

Reducing the cost of insurance for the honest motoristThe government’s proposed reforms are intended to reduce the cost of insurance for honest motorists. The government states that “Millions of motorists could see their car insurance cut by about £40 a year”. 5 Insurance companies have pledged to pass on savings to drivers – worth a total of £1 billion. 6 It is interesting, and we believe pertinent, that references are made by both the government and the ABI to “car insurance” and “drivers” (as oppose “bike insurance” or “riders”).

It is not surprising that the focus is on drivers and car insurance. 76% of all households in the UK own a car, and 30% own two or more. 7 At last count there were over 32.5 million cars and vans registered in the UK: 93% of all registered vehicles. 8 By comparison, motorcycles make up only 3.5% of all registered vehicles with just over 1 million bikes registered in the UK. 9 Therefore, the average motorist is driving a car or a van and the focus is clearly to reduce the cost of their insurance to give the biggest impact on society.

Of course, motorcyclists do pay insurance. However, motorcycle insurance represents only a very small part of the total motor insurance market. For every bike policy in the UK there are around

2 http://think.direct.gov.uk/motorcycles.html3 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447673/motorcyclist-casualties-2013-data.pdf4 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/438040/reported-road-casualties-in-great-britain-main-results-2014-release.pdf

5 https://www.gov.uk/government/news/new-crackdown-on-whiplash-claims-set-to-cut-insurance-premiums

6 https://www.gov.uk/government/news/new-crackdown-on-whiplash-claims-set-to-cut-insurance-premiums

7 https://www.statista.com/statistics/300036/break-down-of-people-buying-cars-in-the-united-kingdom/

8 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/302409/vls-2013.pdf

9 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/302409/vls-2013.pdf

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25 car policies 10. The average private car comprehensive motor insurance premium is £429 per year. 11 The average motorcycle insurance premium is a third of this cost. 12 When you consider that this is in the context of motorcyclists being 10x more likely to be injured in an accident compared to cars, you can see that bike insurance is very well priced. Low-cost insurance for motorbikes has always been part of the appeal of riding a motorbike.

It is clear that there is no real issue with rising costs of motorcycle insurance in society, nor vis-a-vis any indication from the ABI or the government that any savings will be passed onto ‘riders’ as well as ‘drivers’. We understand why that would be the case, because of the size of the market and the desire for the reforms to have the biggest financial impact. The higher cost of car insurance compared to bike insurance makes any potential savings for drivers a priority. It is also worth noting that neither pedestrians nor cyclists pay vehicle insurance to use the roads. Therefore, like bikers, they are not in line to benefit from any potential solution to the problem of rising car insurance (i.e. passed on savings). Therefore, like bikers, they should be not be subjected to any potentially prejudicial impacts of any solution to that problem. Motorbike insurance is already cheap and keenly priced. It is far more affordable than car insurance and always has been. Other vulnerable road users do not pay insurance. With the government’s own stated aim of the reforms being a reduction in the cost of car insurance, this vulnerable group only stands to lose, not gain, if they are included in any of the proposed reforms.

Again, we believe that the definition relating to ‘occupants’ of motor vehicles will resolve this. They are the group paying higher insurance premiums and they are the group that stands to make the savings.

Bikers are not part of the perceived ‘fraud epidemic’The government states that car insurance is rising due to “(the encouragement of) minor, exaggerated and fraudulent claims” 13. Out of the 12,500 motorbike accident claims we have dealt with in the last 3 years (a self-estimated 1/3rd of all motorbike accident claims in England and Wales), we have only had a finding of dishonesty in two cases. 14 This gives an estimated figure of less than 1 motorbike case per year that has any finding of dishonesty. That’s less than 0.0002% of all the motorbike cases that we have dealt with. Compare that to the ABI’s own estimated 70,000 dishonest motor insurance claims detected in 2015 alone 15 and you realise that there is no “fraud epidemic” relating to motorbike accidents. On our figures and those of the ABI, bike cases represent (at best) 0.00001% of all detected dishonest motor insurance claims. Bikers are not part of the problem.

10 Data based on Industry Car Insurance Price Indexing against MCE Insurance’s own motorcycle premium data. MCE is the larg-est motorcycle insurance company in the UK.

11 https://www.abi.org.uk/News/Industry-data-updates/2016/04/ABI-average-motor-insurance-premium-tracker-Q1-2016-data

12 Data based on Industry Car Insurance Price Indexing against MCE Insurance’s own motorcycle premium data. MCE is the larg-est motorcycle insurance company in the UK.

13 https://www.gov.uk/government/news/new-crackdown-on-whiplash-claims-set-to-cut-insurance-premiums

14 It should be noted that both accidents were found to be legitimate road traffic accidents and in no way staged. One client was found to have given inconsistent evidence surrounding his medical treatment and symptoms, which was deemed to be dishonest. In the other case, the client was deemed to have been dishonest about the nature of the impact during the accident. Both cases were dismissed.

15 https://www.abi.org.uk/~/media/Files/Documents/Publications/Public/2016/Motor/Lifting%20the%20bonnet%20on%20car%20insurance.pdf

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When you consider the impact of crashing your motorbike, the fact that dishonest claims for bikers are virtually non-existent is perhaps not surprising. Crashing a motorbike hurts. Throughout our 30 year history of dealing with motorbike accident claims, we have never been aware of any ‘cash for crash’ type scams that involve people deliberately crashing their motorbike in order to make a bogus compensation claim. Nor is someone likely to ‘slam on’ deliberately or cut someone up in order to cause a collision with the aim of making a fraudulent compensation claim. Without a protective barrier like airbags and side impact bars that vehicle occupants benefit from, the risks to the individuals personal safety are likely just too high to take the chance. The same is true for cyclists and pedestrians. Few people are willing to step out in front of a car in order to stage an accident to gain compensation.

Whether or not there is a ‘fraud epidemic’ with car drivers remains to be seen. What is clear is that when it comes to bikers and other vulnerable groups of road users, there certainly is not. We make no admissions in relation to any fraud epidemic, but do note that the perceived issue does seem to be limited, again, to ‘occupants’ of vehicles.

Bike injury cases are not ‘minor whiplash’ cases.

As previously stated, a biker is 10x more likely to be a casualty in a road traffic accident than a driver. The biggest contributing factor to this statistic is simply that, unlike a vehicle occupant, a motorbike affords its rider no protection at all. There is no metal shell surrounding the rider, no airbags, no impact bars and no crumple zones. Indeed, the motorbike itself can actually become a hazard during an accident, with many riders falling to the side prior to impact and finding their leg trapped underneath the sliding vehicle.

Most critically however, is the fact there is no seatbelt. Whiplash is defined by the NHS as a type of neck injury caused by sudden movement of the head forwards, backwards or sideways. 16 Following a minor to moderate impact, a seatbelt will bring the occupant back to the normal seated position. On a motorbike however, usually if the force is enough to cause a sudden forward ‘jerking’ motion of the head and neck, without a seatbelt to bring the individual back to their seated position, that force is likely to knock the rider from the motorbike to the road below. They therefore not only feel the initial impact, but their body then has to deal with the aftermath.

An impact between two cars at 10mph might be considered ‘low speed’ but on a bike without any vehicular protection, an impact at that speed can be major. At its most extreme we have seen clients knocked off their bike at low speed (circa 5mph) and die due to the impact of their helmet against the curb. That is the extreme, but it highlights the fact that you cannot consider the impact to a motorcycle to be the same as that of a car. Not only because of the lack of a seatbelt to limit any forward motion but also because, unlike the occupant of a vehicle, a rider then has to brace themselves for whatever comes next.

16 http://www.nhs.uk/Conditions/Whiplash/Pages/Introduction.aspx

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The three most common post impact situations in a bike accident are:

• Sliding down the road – The continued momentum of the body means that the rider continues to slide down the road post collision. This can cause friction burns, gravel rash and at higher speeds with less suitable clothing (bikers by law are not required to ride in anything more than a helmet) serious skin loss.

• Bodily impact with the other vehicle – Common accident circumstances such as cars pulling out of side roads often result in the rider hitting the side of the car or the individual coming away from the bike and sliding into the side of the car. The velocity of their body is not sufficient to shunt a car (like another car would) and therefore the full force of the impact and immediate deceleration is take by the body itself. This can cause major soft tissue injuries and haematomas, as well as impact injuries such as fractures.

• Being thrown in the air – If the bike impacts a vehicle, this often results in the rider being thrown over the handlebars and over the top of the car. Alternatively, the motion of a bike trying to take evasive action can also throw the biker from the bike or cause the bike to flip. The impact of landing is often the cause of fractures, particularly to the hands and wrists as people naturally try to break their fall.

None of these are experiences that face a vehicle occupant, and all are events that can occur at fairly low speeds. Therefore, the level of injury in a low speed collision is generally higher and more painful than that of a vehicle occupant.

In addition, any tariff that is based simply on the period of time that an injury lasts for is also at serious risk of prejudicing bikers whose injuries, while severe, painful and potentially affecting several parts of their body, could still recover within 6 months. To have a system that awards them the same amount as someone with a minor whiplash injury, based purely on recovery time, would not be just. Bikers’ (and other vulnerable road users) injury claims must be considered separately and properly so that they are properly compensated.

Also, it is essential to note that the types of injury that motorbike casualties suffer, while fairly serious and complex in comparison to a whiplash injury alone, will very often still fall below a value of £5000.

Some examples of common motorbike injuries that are still likely to be worth less than £5000 include:

• Soft tissue injury to the shoulder joint• Fractured clavicle• Soft tissue injuries to pelvis and hip joint• Fractured elbow• Fractured wrist• Fractured finger• Fracture/crush injury to toe• Ruptured/loss of spleen• Fractured ribs• Collapsed lung

These types of injury can often require specialist orthopaedic reports as well as a greater understanding of the value placed on complex injuries in order to be able to properly negotiate a fair and just settlement. Whereas the proposed tariff for minor soft tissue injuries is designed to combat this to a certain extent, this will not apply to more complex injuries suffered by vulnerable road users that still fall below the £5000 amount. These types of injury can also require a more extensive period of absence from work. We strongly believe that access to legal advice from a specialist firm of solicitors is vital for these types of injury claim and that to take a broad brush approach and increase the small claims limit for all personal injury claims, just to try and reduce whiplash cases, would unfairly impact vulnerable road users.

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The proposed definition makes clear the distinction between occupants of motor vehicles and shows an intent to protect vulnerable road users. As a result, bikers and non-occupants are already dealt with outside of the MedCo system 17, which was brought in as part of previous reforms to help tackle the perceived high number of fraudulent and exaggerated whiplash claims. The distinction was made during those sets of reforms and we believe this definition and in particular the specific mention of vehicle ‘occupants’ is correct and that this definition should be included within any rise in the small claims limit.

Bike accidents are not straight-forward

It is not just the injuries that make a motorbike accident more complex than the equivalent car accident. When it comes to accident circumstances and liability for an accident, usually a car accident is pretty straight forward. Motorbike accidents are often more complex and less straight forward. The consultation states that “In the vast majority of (minor PI claims resulting from an RTA) the issues of causation and liability are admitted early – those claims which proceed to court hearings do so in order to settle issues of quantum” 18 . For motorcycle accidents this is not the case and this assumption is incorrect.

It would be remiss to suggest that every bike accident has a complicated set of accident circumstances. Some circumstances are quite straight forward (even motorbikes can be rear-end shunted). What we have found over our 30 years of dealing with bike accidents, is that while on paper the accident circumstances can seem cut and dried, the reality of the situation that follows is often very different. It is common for car drivers to either misinterpret what happened or to simply blame the biker. This is usually not borne out of dishonesty or deceit, but rather from a real difficulty with accepting that they simply did not check their mirror, indicate or simply see the biker. Instead, they convince themselves that they must have checked, or that the actions of the biker made the bike impossible to see (no lights on, going at speed, weaving in and out of traffic or “coming from nowhere”).

Therefore, it is often the case that even on what seem to be straight forward accident circumstances, you have a fight on your hands. This is why having a specialist legal team for motorbike accidents is key. The statistics back this up.

Between May 2015 and March 2016 the number of exits from the RTA portal at “Stage 1”, the stage at which liability is either admitted or denied by the defendant driver, was 25% of cases. 19 So liability was admitted on 75% of all cases submitted. Our own average on motorbike work during this same period shows 46% of cases exiting during stage 1 was nearly two times higher than average. This shows that denials of liability in motorbike accident cases is far more common. Also, the number of cases which require full litigation (issuing of court proceedings) is high, with a total of 29% of all bike cases requiring the involvement of the court before settling 20. Despite these denials of liability, the vast

17 MedCo is a new system to facilitate the sourcing of medical reports in soft tissue injury claims brought under the MoJ’s new Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

18 Section 102 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/570181/reforming-soft-tissue-inju-ry-claims-process.pdf

19 http://www.blmlaw.com/images/uploaded/File/Claims_Portal_-_RTA_Monthly_MI_Analysis_26.04.2016_v2.PDF

20 Based on our own data of cases settled by our motorbike team between May 2015 – May 2016, 29% of all cases had court pro-ceedings issued on them prior to settlement.

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majority of cases (circa 96%) end up settling successfully. This shows the value of a specialist motorbike accident team that is prepared to fight for the biker.

With car accidents, liability is usually determined by using the highway code. We would think most members of the public are able to understand this, and its generally why as the consultation states, liability is usually resolved quickly in car accident cases. Liability in motorcycle accidents is more complex, and often the biker is overtaking, filtering past traffic, filtering past a junction or using a bus lane or cycle lane. Liability is often decided using previously decided case law. There are a large number of precedent cases relating to motorcycle liability and very often liability is apportioned between the biker and the car driver. 70/30 or 50/50 splits in liability are not uncommon. The position and speed of the biker, the point of impact, the movement of the car (pulling out for a U turn or pulling out into a junction), road layout, road signage and road conditions are just some of the factors that can result in changes to the split of liability apportioned. An expert legal team is required to advise bikers on the likely settlement, especially when so many insurance companies and car drivers simply deny liability 100%.

Should the small claims limit rise to £5000 for motorcycle accident cases, the absence of recoverable costs in motorbike accident cases to allow proper legal representation will result in a significantly higher number of people left as litigants in person using the court system. With the higher than average number of denials of liability and litigated cases, the impact will be greater per case than with car accidents. In addition, those litigants in person would be left alone in what is a much more complex area of road traffic law than their car driving counterparts. We believe this is yet another area that these road users are potentially vulnerable.

This area is already subject to fixed fees, introduced during the government’s previous reforms, so costs always remain proportionate and are not able to escalate to unacceptably high levels. This means vulnerable road users currently get proper access to justice with proper representation in an area of law that is more complex than car accident cases, while society gets assurances that costs will always be fixed, and proportionate to the amount the rider recovers.

Conclusion

Motorbike riders, like pedestrians and cyclists, are vulnerable road users. They are 10x more likely to suffer an injury during an accident than those who enjoy the protection of a car. We believe it is vital that vulnerable road users are separated and protected from the proposed whiplash reforms. The proposed definition within the consultation, with specific emphasis and clarity between an ‘occupant’ of a vehicle and those who are vulnerable, should continue within any implemented reforms. This includes any proposed rise in the small claims limit.

These reforms are designed to combat a perceived problem that motorbike riders are certainly not a part of. They represent a very small part of the overall motor insurance industry, and already enjoy much cheaper insurance than car drivers. They are unlikely to receive any savings as a result of these reforms, yet stand to lose out considerably if they are included. There is no fraud epidemic when it comes to motorbike riders, no cash for crash scenarios and motorbikers are unlikely to risk their own personal safety to stage an accident in order to make a bogus compensation claim. This is why findings of dishonesty in motorbike accident cases are virtually non-existent.

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The proposed reforms are designed to tackle minor whiplash claims. The lack of any protection when riding a motorbike means that even minor accidents are usually more severe. It is very rare that in a collision between a bike and a car, the rider will have the same level of injury compared to the occupant/s of the car. They not only have to deal with the initial impact, but the aftermath as well. A tariff system is not suitable and proper legal representation is needed to obtain a specialist medical report and then negotiate a proper settlement for what can often be multiple injuries. A small claims rise will not allow this.

Motorcycle accident cases are not straight forward cases. Liability is often disputed. There is a high number of cases that require court involvement in order to resolve liability. This means that without proper representation, motorbike riders will be more likely to find themselves as litigants in person in the court system than a car driver. While the government may feel that the public can negotiate the court process to settle a quantum dispute for a whiplash claim, going to court to argue liability in their accident, understand the complex case law which apportions blame correctly and negotiate a potentially complex fracture or multiple soft tissue injuries, is a much different proposition. The assumption cannot be made that most cases that are litigated have liability admitted when it comes to motorcycle accidents.

This area is already subject to fixed fees, meaning that riders and other vulnerable road users can get much needed representation to fight their case, but be safe in the knowledge that costs are fixed and proportionate to the size of their case. This is the position that must be maintained.

To conclude, we believe that any reforms bought in by the government in order to “crackdown on the epidemic of whiplash claims” should be limited to claims as defined by the proposed definition in the consultation, with special emphasis on the distinction between ‘occupants of a vehicle’ and vulnerable road users. This will ensure that bikers and other vulnerable road users, who are not part of the perceived problem, continue to be protected by society.

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Mr Reece Braddish v Markerstudy Insurance Company Ltd

• Accident date 28.01.2016• Proceedings issued 13.06.2016• Date of settlement 24.11.2016

The Claimant was the owner and rider of a Yamaha and he was involved in a collision with a Volkswagen Golf whilst driving along Hobs Moat Road, Solihill, West Midlands. The Defendant car driver, who was travelling in the opposite direction turned right across Mr Braddish’s path causing a collision. The Defendant impacted the Claimant from the side and the Claimant was thrown to the ground and landed on his side. The Claimant sustained a soft tissue injury to his right shoulder with a period of recovery lasting 12 months and concussion for 6 months. His shoulder required an x-ray but no bony injury was found. The Claimant made a claim for personal injury together with other financial losses. The case dropped out at stage 1 of the RTA portal process. No reason was given. Medical evidence was submitted to the insurers and still no response was forthcoming. Court proceedings were issued.

A Defence was then filed disputing liability. The Defendant driver stated that they were stationary and “preparing to turn right” when the motorbike approached, drifted across the road (no reason given) and collided with their stationary vehicle. The case was transferred to Walsall County Court and allocated to the Fast Track with standard directions on 27.09.2016. Several court forms needed to be completed and submitted. The matter then settled fully in favour of the claimant shortly after exchange of detailed witness statements, which took place on 22.11.2016. The matter settled by way of a third party Part 36 offer in the global sum of £4,000.00. The case had been listed for Trial on 22.02.2017.

Case Studies

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Mr Franco Valdivieso v Mr Marcus Costa

• Accident date 31.03.2016• Proceedings issued 12.09.2016• Date of settlement 07.11.2016 The Claimant was the owner and rider of a Yamaha motorbike and he was involved in a collision with a BMW motorcar whilst he was riding past queuing stationary traffic along Cotton Street in London. The Defendant car driver pulled out from the queue of traffic and the collision occurred. The Claimant contends that the Defendant has moved his vehicle to the right, without warning, in an attempt to perform a U-turn manoeuvre without indication, causing the collision. The Claimant sustained a frontal impact to his vehicle by the third parties. The Claimant sustained multiple soft tissue injuries to include his neck; left side hip; left side knee; left side little finger, left side ankle and lumbar spine, together with shock, shaking up and travel anxiety. The injuries fully recovered within a period of 8 months post-accident. The medical expert recommended that the Claimant undergo physiotherapy. The Claimant made a claim for personal injury together with other financial losses.

The case dropped out of the RTA portal at Stage 1. Medical evidence was submitted. The insurance company responded confirming that they believed liability should actually be settled 50/50 between the parties. It is assumed this split was offered by the insurance company because the bike was overtaking traffic. Court proceedings were issued on behalf of the claimant in order to obtain a 100% settlement.

A Defence was then filed admitting that the accident was caused in full by the negligence of the Defendant. The insurance company could (and should) have simply settled the case within the RTA portal, but as is typical in motorbike accidents, they decided to try a 50/50 offer instead. It took an understanding of the law in this area, rejecting the 50/50 offer (not an uncommon settlement in bike cases) and the confidence to issue court proceedings to bring about this admission. Under cover of a letter dated 25.10.2016 the Defendant made a Part 36 offer to settle in the global sum of £4,000.00 which the Claimant accepted.

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Mr Steven Jones v Haven Insurance Company Limited

• Accident date 14.04.2015• Proceedings issued 05.10.2015• Date of settlement 24.11.2016 The Claimant was the owner and rider of a Honda motorbike and was involved in a collision with a Mazda Taxi whilst riding along the A1 in London. Mr Jones was stationary at a set of traffic lights. When the lights turned green the Claimant was still stationary waiting for the vehicles in front to move, when the Defendant taxi driver collided with the rear of his vehicle causing a collision. The Claimant sustained soft tissue injuries to his left ankle and lumbar spine, together with minor contusions, with recovery taking place within 4 months post-accident. The Claimant made a claim for personal injury together with other financial losses. At face value, this should have been a claim that proceeded smoothly through the RTA portal process (soft tissue injuries and a rear end shunt at traffic lights). However, the case dropped out of the portal due to no insurer response at Stage 1. Medical evidence was submitted, there was no still response forthcoming, and so proceedings were issued. A response was then (finally) received from the Defendant insurers. The Defendant claimed that he was stationary at the lights, with his engine switched off (to save fuel) and that a motorcycle came from the left lane from behind, swerving, trying to get between his car and the car in front, but there wasn’t enough room, so the bike collided with the Defendants car, and the bike toppled to the side.

There was a witness in the taxi who said the taxi didn’t move, he wasn’t sure what happened, but the biker ‘just fell to the side on the road’.

A Defence was filed disputing liability, quantum and causation. Knowing this type of nonsense Defence is sadly all to common in motorbike cases (people cannot accept they didn’t see the bike) the decision was taken to fight the case. The claim was transferred to Willesden Country Court and allocated the Fast Track on 02.02.2016. Directions were set down to include the listing of a Trial to take place on 29.09.2016. The parties complied with all directions to include exchange of witness evidence and the matter ran to Trial on 29.09.2016. However, the Defendant driver then failed to turn up for Court and the parties negotiated full settlement of quantum at the door of the Court. Judgement was given for the Claimant in the global sum of £5,430.00 of which £2,100.00 accounting for personal injury.