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Crushed by a reversing car in April 2015


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I noticed that there has been a change regarding insurance payouts for personal injury claims and wondered if anybody could explain how this might affect me please?

 

In April 2015 I was in a supermarket carpark putting my shopping away in the boot of my car when the car opposite me reversed out of their parking space.

 

Just as I turned around to get another shopping bag out of my trolley I saw the reversing car coming towards me.

 

I had no time to move out of the way completely so the car reversed into my trolley and continued reversing crushing the left side of my lower body between the boot of my car and trolley.

 

The reversing car eventually stopped after witnesses banged on his car. He hadn't noticed my very loud screaming or looked out of his rear window!

 

Police were called by supermarket (incident recorded on CCTV) and then called again when driver hit one of the ambulance crew as they tried to stop him driving off!

The driver then made a formal complaint against the ambulance crew for being disrespectful!

 

The police didn't press charges against the driver as they said he was in his 80's and it happened on private land so not their concern!

 

When I complained the police said that it was likely the DVLA would take his licence so prosecuting the driver wasn't an efficient use of police resources!

 

The driver tried to deny liability and claimed I reversed into him!

However the witness statements, police report and CCTV confirmed my account of the incident and have accepted full liability for the accident.

 

As a result of the incident I suffered an injury to my left leg (mainly around the knee).

I had just under a year of physiotherapy,

an arthroscopy and several nerve block injections.

 

My local pain consultant has concluded that the nerve damage is permanent and has recommended a further radio frequency nerve block procedure and advised I will require further physiotheraphy after this procedure.

 

I've had an orthopaedic medical report done which concludes I suffered a soft tissue crush injury and recommends a report from a pain expert to confirm the level of nerve damage I have suffered.

My solicitor is in the process of arranging this.

 

Do the changes affect my claim and how will they affect them?

 

Many thanks for all advice given

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The change that has been prominent in the news is to the "discount rate"

http://www.consumeractiongroup.co.uk/forum/showthread.php?475184-Crazy-injury-payouts-bill-hits-NHS&p=5002373#post5002373

 

Is this the change you are referring to?.

If so, it affects claims where there is a significant ongoing component (usually where there will be future care costs or loss of earnings), not for injuries where there are damages for pain, suffering and 'loss of amenity' or past pecuniary loss ; for these the damages are currently quantifiable (and look to the past, not the future)

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Hi Bazza, thank you for responding to my post and offering advice, it is very much appreciated.

 

 

Yes these are the changes I am referring to.

 

There is a loss of earnings involved and possible care costs for the future.

 

I have been told by my pain consultant that the nerve damage to my leg is permenant. The injury has left me in significant pain and also affected my mobility. Due to the nerve damage the stability of my left leg is compromised and often gives out - I suffer from attacks of pins and needles in my leg and during these attacks I cannot weightbare in my left leg and I'm prone to falls as I never have any warning of when a flare will occur.

 

My pain consultant is hoping that frequent radio pulsed nerve blocks will help reduce these attacks and improve my stability and mobility of the leg..

 

The frequency of the nerve blocks is yet unknown. I had the last one in October 2016 which helped and improved my mobility for a short period of time but sadly the benefit of the nerve block has now worn off. They are now going to try and more invasive radio frequency nerve block in the hope that this will last longer.

 

I have a part time job as an office manager but a I also am self employed as a female vocalist and performed regularly and the accident has impacted upon my performance abilities. For instance I used to perform at holiday camps but have had to withdraw from a lot of these types of bookings as I can not physically perform in the manner required for thes types of bookings - I am unable to dance or stand for significant periods of time. I am able to still perform in social clubs/pubs etc as I am able to sit on a stool when required. Holiday camps etc require high engery performances and a lot of movement within my performance which I cannot do due to the pain and instability of my leg. I am able to produce contracts/statements from the agents I work with confirming that my restricted mobility impacts upon the venues they can book me for and my bookings have reduced solely due to this reason.

 

I will also require future time off work from both my jobs for future nerve blocks. The nerve blocks are done under sedation and it also takes me a few days to recover and be able to drive/manage stairs etc (my office is on the first floor and there is no lift)

 

My solicitor has mentioned that when he calculates my claim there is likely to be an element for future care/treatment invloved. I have a no win no fee agreement with him and he advised me that he can only take 10% of any award given for future care needs. My solicitor has not given me any indication of what amount he is suggesting I claim for, sensibly he wants to get all the medical reports done and consider their recommendations and prognosis before we have that discussion and I am in complete agreement with him in this matter. I have no idea whatsoever what the amount claimed for will be. He did advise me to refuse an offer of £7,500 that the insurance company made in December 2015 because I was still undergoing physiotheraphy and hadn't had the arthroscopy done and had only one nerve block administered which gave a very limited amount and length of pain relief and increased mobility/stability to my leg. This is why the pain consultant recommended the radio poised nerve blocks which have offered a longer and more effective pain relief and assisted in improving my mobility and stability of my left leg.

 

In your opinion does the above fit into ongoing component? If it does fit the criteria for ongoing component is it relevant that the incident took place in 2015 or does the changes only impact upon claims that happen since the date the changes are implemented?

 

Once again thank you for taking the time to read my post and for offering your advice. It is very much appreciated and valued.

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I have a no win no fee agreement with him and he advised me that he can only take 10% of any award given for future care needs.

 

I'm not sure that is correct : the regulations allow for 'no win, no fee' arrangements, but based only on past losses, not future care needs.....

 

However, regarding the changes: (if / when implemented, as they are still under discussion), the changes are intended to ensure claimants receive (in future years) what the court has ordered.

 

It is felt that currently the lower interest rates mean that the "discount rate" used in the past has meant claimants don't receive the full amount the court intended - the effect is minimal at first but increases as time passes.

 

So, the change does mean more money for claimants : but rather than "extra new money" it is more "getting what the court intended, rather than less than the court intended, in future years".

 

Moving back to the "no win, no fee", is the 10%:

A) a CFA where the 10% is a "success fee" (so if they succeed, they claim their fees on your behalf from the defendant, and then an extra 10% on top of that comes out of your damages for PSLA and past pecuniary loss)* or

B) a DBA where the 10% can come out of your damages (for past losses)*

 

(CFA = conditional funding agreement

DBA = damages based agreement

PSLA = pain, suffering, loss of amenity)

 

* for personal injury cases there is a 'cap' of 25% of past damages, so the claimant will always receive at least 75% of the "past" component of the damages for both CFA's and DBA's. The CFA or DBA also is only for the "past" component : nothing can be taken from the future component, as mentioned in my first line, above.

 

For DBA's there is also an "indemnity principle"; say

i) the claimant gets awarded 20k for "past" damages, potential DBA at 10% is 2k, but their solicitors costs are assessed at 5k.

They get 5k costs from the other side, and since this exceeds the 2k: no more to pay : claimant gets that 20k awarded.

 

ii) Same 20k past damages as at i), same potential DBA at 10% making 2k, but assessed costs at £1500?. They get £1500 from the other side, £500 comes out of the past damages to make the £1500 up to 2k, claimant is left with 19k5 of 20k.

 

iii) what is the assessed cost stays the same as at i), at 5k, but the past damages are 60k not 20k?

10% of 60k is 6k. Assessed cost is 5k, recovered from the other side.

1k (6k-5k) comes out of the past damages, leaving the claimant with 59k out of 60.

n.b. These figures for assessed costs & damages are 'made up' to illustrate the process, and aren't meant to bear any relationship to the likely damages or assessed costs for your case.

 

CFA's are much more common than DBA's (unlike in America where DBA's are more common) : which "no win, no fee" style have you agreed with your solicitor?

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I've checked the paperwork the solicitor sent me and it's a CFA with a cap of 25%.

 

Reading through the paperwork there is no mention of 10% for future loss/care so it's very possible I've misunderstood/misinterpreted what the solicitor said. Your explanation about the success fee being 10%

 

Would it be helpful for me to post a copy of the agreement for you to look at?

 

Thank you so much for taking the time to help/explain things to me and for offering me advice. X

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By all means post up the CFA (but "suitably redacted" of personal information).

 

It should clearly state what percentage the success fee is (is it the 10% you mentioned before?), as well as the cap.

 

Using the same figures as the (purely illustrative!) examples (used for a DBA) above: with a 10% success fee:

 

i) Assessed costs 5k, past damages 20k. Solicitor gets 5k from the other side, 500 from the claimant, claimant keeps 19k5 of the 20k (so less than the 20k for the DBA)

 

ii) Assessed costs £1500, past damages £20k. Solicitor gets £1500 from the other side, £150 from successful claimant, claimant keeps £19,850 of the 20k (so, more than 19k5 for the DBA)

 

iii) Assessed costs 5k, past damages 60k. Solicitor gets 5k from the losing side, 500 from the claimant. Claimant gets 59k5 of 60k (more than the 59k they get with a DBA)

 

iv) new example: Assessed costs 5k. Past damages 1k. Solicitor gets 5k from the losing side. 10% of this is 500. However the success fee is capped at 25% of 1k (£250), so solicitor gets £250 extra (instead of £500) from claimant, claimant gets £750 of the 1k.

 

[for sake of completeness / comparison: if we had used these (Assessed costs 5k. Past damages 1k) figures for a 10% DBA: potential DBA £100

Solicitor gets 5k from other side, exceeding the potential DBA, so gets no more from the claimant who keeps all of the 1k.]

 

So, CFA's and DBA's are "swings and roundabouts" depending on the complexities of the case (and thus assessed costs) vs. value of likely damages for past losses.

 

Neither should be affected by the likely damages for future costs (and vice versa, damages for future costs shouldn't be affected by either a DBA or CFA!)

 

On a purely mathematical / probability basis, a 10% CFA (without a cap!) should represent an estimation of just under 91% likelihood of a successful claim.

No claim (no matter how apparently strong!) is ever 100%, as there is always some 'litigation risk' (things can go wrong!), and one also has to then factor in the effect of the cap (what if the past damages are low?), but a 10% CFA would suggest your solicitor feels you have a pretty strong case....

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I have attached the CFA. I've read it several times the only reference I can see is that a maximum of 25% of the overall amount awarded can be deducted from the overall amount awarded to me but doesn't actually tell me what percentage the success rate is - maybe I'm just being stupid and can't see it?

 

It does mention about claiming back costs from the other side but not being able to claim the success fee or any monies paid for insurances (which I did agree to take out - it was £35 but I do not have to pay it if the claim is successful so it seemed the sensible thing to do)

 

In regards to the costs I'm assuming that theoretically this shouldn't an issue as the other side have admitted full liability but then I guess it depends on whether the other side feel the costs are reasonable. It does mention that if I do not agree with the costs I can ask a court to assess whether they are fair.

 

I did research CFA's and several solicitors before making a decision of who to instruct. All the solicitors that I contacted informed me that the CFA would be 25% but I could claim the costs back from the other side but not the success fee so I (probably stupidly) assumed that the success fee was 25% of the whole award but then I would get the costs back from the other side. This is how I thought it worked.......

 

I am awarded £10,000 before costs.

The costs come to £1,000

I am awarded a grand total of £11,000

Solicitor receives £2,500 in respect of costs and success fee

I receive £8,500

 

Does this seem a correct summary of what I have actually agreed to or have I completely misunderstood?

 

Thank you so much for all your help and advice - I am very grateful and I promise that I will make a contribution to the site when this matter is resolved.

cfa .pdf

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I have attached the CFA. I've read it several times the only reference I can see is that a maximum of 25% of the overall amount awarded can be deducted from the overall amount awarded to me but doesn't actually tell me what percentage the success rate is - maybe I'm just being stupid and can't see it?

 

Schedule 1, first line. They state their success fee to be 100% (which is the maximum allowable), which is 100% of their costs ...... not any percentage of the damages.

 

As previously mentioned, there is a Regulation capping the success fee (for personal injury cases) at 25% of the "past" damages, which they mention (as well as mentioning the effect of Compensation Recovery, if any, by DWP), and they mention this at Schedule 1.

 

The 25% appears twice : the (statutory) cap in Schedule 1, but also in Schedule 2.

 

Schedule 2 is a separate cap, of 25% of total damages (so those for the future as well as past), but the sum includes expenses and disbursements, which might not be fully recoverable from the other side.......

I'm not aware that this is based on a statutory limit, but protects you from having a (more?) massive chunk of future damages taken.

Either (or both!) caps may limit that component of how much you have to pay fromthe damages you are awarded.

 

 

This is how I thought it worked.......

 

I am awarded £10,000 before costs.

The costs come to £1,000

I am awarded a grand total of £11,000

Solicitor receives £2,500 in respect of costs and success fee

I receive £8,500

 

it isn't quite as simple as that ........

We'd need to know what proportion of damages was for "past" (to work out any Schedule 1 cap on success fee), as well as the total (to work out any overall cap, from Schedule 2).

We'd need to know what costs were granted from the other side / the "assessed costs", to work out the Schedule 1 part, and then evaluate any expenses/disbursements that weren't recovered / fully recovered, for the Schedule 2 bit!.

 

As they mention, you don't get your ATE insurance premium back (the "recoverability" of this was abolished in a move to limit the rising costs of litigation

[they removed at the same time the "recoverability" of the success fee from the losing defendant!)] ), but you only have to pay your ATE insurance premium if you win! (the ATE premium "self-insures" ..... if you lose the insurer 'pays the premium to itself', removing your liability for it!).

 

 

Does it look like the claim is likely to be in the 'fast track'? I take it it has already left the 'RTA portal' used for simpler / lower value claims?.

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no, the costs are separate and they get all of that so in the example you give of damages of £10k and costs of £1k you pay them all of the costs (£1k) and 25% of your damages (£2.5k) so you get £7.5k the only time the costs would be counted in the damages part is if the costs awarded are greater than their charges and that isnt going to happen

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Thank you so much for all your help and advice - I am very grateful and I promise that I will make a contribution to the site when this matter is resolved.

 

Which I'm sure the site will gratefully receive!.

I'm not one of the site team, but from the info on the site : the site wouldn't run without donations.

 

I have to admit I haven't donated money (do I hear "boo' and 'hiss'?!), but equally I hope that I assist by donating my time and energy .... and what (limited!) knowledge I have.

If I can answer most things, mostly correctly, it frees up the real experts to

a) answer the really complex stuff I leave alone, or

b) correct me i f/ when I (hopefully not too often!) get it wrong .......

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no, the costs are separate and they get all of that so in the example you give of damages of £10k and costs of £1k you pay them all of the costs (£1k) and 25% of your damages (£2.5k) so you get £7.5k the only time the costs would be counted in the damages part is if the costs awarded are greater than their charges and that isnt going to happen

 

The extra 1k D pays in the summary you give is only if the past damages are 4K or more (the 25% success fee cap). If less than 4K (for past) the success fee will be less than 1k.

 

The extra (making up the 2.5 k) would only be if the non-assesed costs and non-recovered expenses / disbursements were sufficient to cause this.

 

I accept, though, for the example stated that the D MIGHT only recover 7k5.

They wouldn't recover less, but might recover more!

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Thank you all for your very much appreciated thoughts/advice/explanations.

 

To try and answer some of the questions asked (please let me know if I haven't answered anything I should have)

 

I have had one expert medical report completed (orthopaedic) completed which confirmed I suffered a soft tissue crush injury which I have recovered from but suggests that I have sustained nerve damage and recommended that an opinion from a pain consultant is sought. My solicitor is in the process of trying to find one in my area that will do an expert medical report.

 

My solicitor was not given any indication of costs/damages//disbursements/expenses etc

 

Re Fast track - the other side have admitted full liability so that's one battle off the list. My solicitor is hoping that this will be resolved out of court but has advised me that if necessary he will institigate court action.

 

I did have a different person within the solicitors dealing with my claim but my case was passed upwards when it became clear this wasn't going to be resolved in within a year. Apparently the expert medical reports thatI am attending are more in depth and only certain consultants/medical experts are able to accept instructions for this type of medical report - hence the delay in finding a pain expert in my area (my pain consultant is the expert in my area but he has refused instruction as I have been his patient for over 6 years due to an pre exsisting bladder disease that requires intensive pain management)

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I

I have attached the CFA. I've read it several times the only reference I can see is that a maximum of 25% of the overall amount awarded can be deducted from the overall amount awarded to me but doesn't actually tell me what percentage the success rate is - maybe I'm just being stupid and can't see it?

 

It does mention about claiming back costs from the other side but not being able to claim the success fee or any monies paid for insurances (which I did agree to take out - it was £35 but I do not have to pay it if the claim is successful so it seemed the sensible thing to do)

 

In regards to the costs I'm assuming that theoretically this shouldn't an issue as the other side have admitted full liability but then I guess it depends on whether the other side feel the costs are reasonable. It does mention that if I do not agree with the costs I can ask a court to assess whether they are fair.

 

I did research CFA's and several solicitors before making a decision of who to instruct. All the solicitors that I contacted informed me that the CFA would be 25% but I could claim the costs back from the other side but not the success fee so I (probably stupidly) assumed that the success fee was 25% of the whole award but then I would get the costs back from the other side. This is how I thought it worked.......

 

I am awarded £10,000 before costs.

The costs come to £1,000

I am awarded a grand total of £11,000

Solicitor receives £2,500 in respect of costs and success fee

I receive £8,500

 

Does this seem a correct summary of what I have actually agreed to or have I completely misunderstood?

 

Thank you so much for all your help and advice - I am very grateful and I promise that I will make a contribution to the site when this matter is resolved.

 

 

 

What will happen in practice is that if you are awarded £10,000 you will have 25% deducted for your own legal costs and whatever the cost of your ATE insurance is and then will receive the rest. So if the ATE is £500 then you walk away with £7,000.00 in this example.

 

Your solicitors are likely going to receive a fixed amount for costs from the other side that are paid to your solicitor on top and won't have any affect on what your bottom line figure is.

 

You are paying your solicitor a couple of grand to advise you so they really should be explaining all of this to you.

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