Supermarket -oap slipped on food - injury claim?

[Ganymede]

Can someone advise on what type of service to go for?

Checked some lawyers and they operate a 'no win / no fee' basis. I assume that they take a big cut of any settlement??

What is the best route to take?

A lawyer prepared to litigate because you have a strong case and if you win, they don't take a cut of the settlement?

No idea, just asking.

 

 

You will find it almost impossible these days to find a PI solicitor who won't want to deduct 25-30% from the damages, especially for a fairly modest Fast Track claim like this, as it's simply isn't commercially viable to not deduct anything!

 

Paying on a private basis would be foolish too for the size of the claim.

 

Check the BTE insurance situation, but the case will be passed to one of a panel of solicitors the insurance company insist on using so there is very little choice.

 

Thank the Tory government for this situation but it's here to stay sadly.

[Ganymede]

You can chose “Pay As You Go”. You’ll have to pay fees though, and that will be “win or lose”, not “no win, no fee”

If you win you’ll get most (not all, usually!) of your fees back.

If you lose you get to be liable for your lawyers fee & the other side’s (unless it is small claims track!)

 

Nope, not anymore as the fixed costs recoverable from the Defendant are fairly low now.

 

As for the other side's costs if you lose, the Claimant will be covered by QOCS (Qualified One Way Costs Shifting) so unless there is some finding of fundamental dishonesty on the Claimant's part there shouldn't be any costs to pay (Not including possible indemnity costs for failing to beat a Part 36 offer etc).

[BazzaS]

Nope, not anymore as the fixed costs recoverable from the Defendant are fairly low now.

 

As for the other side's costs if you lose, the Claimant will be covered by QOCS (Qualified One Way Costs Shifting) so unless there is some finding of fundamental dishonesty on the Claimant's part there shouldn't be any costs to pay (Not including possible indemnity costs for failing to beat a Part 36 offer etc).

 

My mistake, I thought QOCS applied only to claims covered by ATE insurance (as a result of the loss of recoverability of the ATE premium), but you are correct, it applies (by use of variable enforceability) even for “PAYG” claims... (absent fundamental dishonesty or falling foul of a part 36 offer, as you have noted)

[jobbingjogger]

Hi there.

 

A claim founded on injury to the menisci of the knee is absolutely something you should involve a solicitor for - you may end up looking at an award of damages in the region of £8k to £12k depending on severity and prognosis. It is a very serious injury indeed. Accordingly, the claim will fall to either the fast track or the multi-track, and solicitors costs will be recoverable.

 

Any reputable personal injury solicitor would be happy to take this sort of case on - it sounds a strong one from what you have said thus far. Do a Google search for Ward v Tesco Stores Ltd (1976) for the relevant authority on this type of claim.

 

As has been mentioned many solicitors will want to take a success fee of up to 25% of damages from you. There are however firms out there that do not charge a success fee, thus entitling your relative to keep all damages.

 

JJ

Edited July 16, 2018 by Andyorch
Edited

[BazzaS]

As has been mentioned many solicitors will want to take a success fee of up to 25% of damages from you. There are however firms out there that do not charge a success fee, thus entitling your relative to keep all damages.

 

JJ

 

How do they make a profit if they are taking the risk (even the strongest of cases has a degree of ‘litigation risk’) but not charging for doing so?

[HP Mum]

Thank you all for your comments above.

 

I just wondered if anyone has any idea on how much it would likely cost the Defendant, the supermarket, to defend a claim through the court system, on the basis that they have already passed on relative's complaint to a big commercial law specialist???

 

Relative has still not made a claim but the supermarket lawyers have assumed that relative will.

Quite simple letters have passed between lawyer and relative.

 

Relative allowed lawyer access to medical records - so they clearly see the medical steps relative has taken and the medical prognosis.

 

Relative explored local PI lawyers but is yet to appoint one.

 

In the meantime, relative has been having on-going physio and has experienced distinct change to quality of life - inability to do things that was quite easily and happily able to do before the incident. And knock-on effects with other parts of the body.

 

Despite no PI lawyer appointed and just simple correspondence with the supermarket and their lawyer specialist firm, the lawyers just made a f&f offer to relative! Several thousand.

 

I looked up the ward v tesco 1976 case - understand the legal perspective - but the £ settlement is clearly not applicable to 2018.

 

So I googled meniscus insurance claims and came up with this:

 

"Average compensation payouts for tear of meniscus claim

Below compensation calculator with examples of the amounts of compensation you can claim for tear of meniscus claims in 2018:

 

1. Torn meniscus claim with complete recovery

If you suffer a tear to the medial or lateral meniscus, but the tear is relatively minor and leads to a complete recovery in a short time period your tear of meniscus claim is likely to be worth: up to £12,000

 

2. Tear of menisci claim with on-going instability

If you require surgery to help remedy your torn meniscus and you are left with on-going minor instability, on-going pain or disability – your tear of meniscus claim is likely to lead to an average payout calculated between: £12,000 and £23,000

 

3. Meniscus injury leading to restriction of movement of your knee

In the more severe damage to your medical and lateral meniscus leading to more severe instability in your knee, limitation of movement and degenerative changes such as arthritis – average payouts for your tear of meniscus claim could be between: £23,000 and £38,000

 

The above seems a lot of money but equally seems quite reasonable given the distinct change in how relative can lead their life due to the supermarket negligence.... (res ipsa loquitur)

 

I know some people have advised getting a PI lawyer and handling it this 'normal' way - but given the supermarket lawyers are already offering £s (admitting negligence??) maybe relative can negotiate a happy medium settlement - without incurring the costs of a PI lawyer and losing 20-30% fee to them??

 

I was thinking about the legal costs to the supermarket. It would surely cost a lot to defend relative's claim. Many thousands? Plus there is the potential negative press that could ensue? Bad publicity = brand damage?

 

Just wondering if relative was to reply, rejecting the f&f and quoting the above £ amounts if the lawyers might take a view??

tbh this is a clear case of negligence so they may just wish to be done with it..???

 

Any thoughts on best next action??

[SuperVillain]

I’ve been away from these boards for a bit. Just caught up on this.

 

This claim looks to be straying over the £25k mark meaning multi track litigation.

 

In the multi track there are differences (eg defendant solicitors can usually get their own medical experts to examine). The costs to the defendant (or their insurers) will be in the tens of thousands if that happens. And that’s just their own legal costs. They will have already spent a few thousand on this.

 

It’s a concern that you’ve disclosed medical records to the other side, without any medico legal examination taking place. Have those records been checked to make sure there’s nothing in them that will work against your relative (something that a medical expert could have commented on before the other side saw the records).

 

To asses general damages you’ll need to look at the JC guidelines as well as case law. That Tesco case seems too old, there has to be more recent cases. But your problem at the moment is that you don’t seem to have a prognosis for how long a recovery will take place (if at all). So it’s impossible to say if that offer is reasonable. Chances are it’s probably not, and it’s an attempt to buy the claim off cheap.

[farmlama]

Thank you all for your comments above.

 

I just wondered if anyone has any idea on how much it would likely cost the Defendant, the supermarket, to defend a claim through the court system, on the basis that they have already passed on relative's complaint to a big commercial law specialist???

 

Relative has still not made a claim but the supermarket lawyers have assumed that relative will.

Quite simple letters have passed between lawyer and relative.

 

Relative allowed lawyer access to medical records - so they clearly see the medical steps relative has taken and the medical prognosis.

 

Relative explored local PI lawyers but is yet to appoint one.

 

In the meantime, relative has been having on-going physio and has experienced distinct change to quality of life - inability to do things that was quite easily and happily able to do before the incident. And knock-on effects with other parts of the body.

 

Despite no PI lawyer appointed and just simple correspondence with the supermarket and their lawyer specialist firm, the lawyers just made a f&f offer to relative! Several thousand.

 

I looked up the ward v tesco 1976 case - understand the legal perspective - but the £ settlement is clearly not applicable to 2018.

 

So I googled meniscus insurance claims and came up with this:

 

"Average compensation payouts for tear of meniscus claim

Below compensation calculator with examples of the amounts of compensation you can claim for tear of meniscus claims in 2018:

 

1. Torn meniscus claim with complete recovery

If you suffer a tear to the medial or lateral meniscus, but the tear is relatively minor and leads to a complete recovery in a short time period your tear of meniscus claim is likely to be worth: up to £12,000

 

2. Tear of menisci claim with on-going instability

If you require surgery to help remedy your torn meniscus and you are left with on-going minor instability, on-going pain or disability – your tear of meniscus claim is likely to lead to an average payout calculated between: £12,000 and £23,000

 

3. Meniscus injury leading to restriction of movement of your knee

In the more severe damage to your medical and lateral meniscus leading to more severe instability in your knee, limitation of movement and degenerative changes such as arthritis – average payouts for your tear of meniscus claim could be between: £23,000 and £38,000

 

The above seems a lot of money but equally seems quite reasonable given the distinct change in how relative can lead their life due to the supermarket negligence.... (res ipsa loquitur)

 

I know some people have advised getting a PI lawyer and handling it this 'normal' way - but given the supermarket lawyers are already offering £s (admitting negligence??) maybe relative can negotiate a happy medium settlement - without incurring the costs of a PI lawyer and losing 20-30% fee to them??

 

I was thinking about the legal costs to the supermarket. It would surely cost a lot to defend relative's claim. Many thousands? Plus there is the potential negative press that could ensue? Bad publicity = brand damage?

 

Just wondering if relative was to reply, rejecting the f&f and quoting the above £ amounts if the lawyers might take a view??

tbh this is a clear case of negligence so they may just wish to be done with it..???

 

Any thoughts on best next action??

 

Firstly have the supermarket written to say that they have accepted liability or is it a without prejudice offer? They could have investigated the incident and found they have a solid defence, but in order to save further costs in defending a claim, they have made a low goodwill gesture to settle as to save costs later.

 

I work in insurance and defend liability claims. From my experience, the big firms of solicitors are not that great and over 50% of claims will be handled terribly. They tend to use general template letters, but do not edit them in anyway to fit the individual claim, so often they are sending letters that have nothing to do with the incident circumstance. They also get things wrong that can reflect badly on the claimant (for example mr x was unemployed at time of incident but later started working, solicitors have their facts wrong and keep saying claimant was working at the time and want to claim loss of earning for the period, despite claimant telling us that they did not work at the time so this does not apply). They also very regularly will bring the claim against the wrong party, or refer to the defendant incorrectly (had one claim in which they kept referring to the defendant as McDonalds, we have nothing to do with McDonald’s at all). The last claim we defended at court, the solicitors had handled it so badly, misadvised the claimants and messed up sending in documents such as witness statements and a court bundle, that the judge actually advised the claimants that they should look to seek damages from their solicitors.

 

In addition, when injury claims are settled, they are not looked at any differently in regards to offer made if there is legal representation or not. The same calculations will be used to take into account details of the injury and any medical history that could be contributing (for example, someone claiming a back injury but who has a history of back problems would likely get a reduced offer).

 

You need to think about whether pushing the issue is in the best interest for this elderly relative too, you said that claiming wasn’t their idea and it was family members that have pushed this issue. By pushing further, you risk getting no settlement at all and you guarantee prolonging any stress for your relative.

 

If you do not agree with the offer, why don’t you write and ask how they have come to that figure, and advise of what you think of what region it should be and why you think that. Also ask if they have admitted a breach of liability or if this offer is made on a without prejudice basis.

[SuperVillain]

OP I mentioned above the JC Guidelines. Below is an except from section M(a)(iii) for severe knee injuries in the 10th edition:

 

(iii) Less severe injuries than those in (a)(ii) above and/or injuries which result in less severe disability. There may be continuing symptoms by way of pain and discomfort and limitation of movement or instability or deformity with the risk that degenerative changes may occur in the long term as a result of damage to the kneecap, ligamentous or meniscal injury or muscular wasting.

 

Damages range from £17,500 to £28,250.

 

The bracket below, M(b)(i) says as follows:

 

 

(i) Injuries involving dislocation, torn cartilage or meniscus or which accelerate symptoms from a pre-existing condition but which additionally result in minor instability, wasting, weakness or other mild future disability.

 

Damages from £9,750 to £17,500.

 

We’re now on the 14th edition of the guidelines so the damages will have increased.

 

Remember when looking at the claim as a whole, you will need to add on any other injuries sustained eg bruising/soft tissue.

 

Also you need to add on special damages. Any care he required that you or other relatives provided (both at hospital and after discharge). Future care that may be required. Travel costs to and from hospital for after care appointments. Travel for the physiotherapist appointments. Equipment now required as a result of the accident (eg walking stick or other mobility aids).

 

All of that to think about when considering whether the offer is appropriate.

[HP Mum]

Thanks for the above

I will run these thoughts by relative and check exact contents of the supermarket lawyer's letter.

Will revert again soon

[HP Mum]

The supermarket legal firm latest letter is entitled "your claim against xx"

There is no mention of "without prejudice"

They advise they have received "the medical evidence" and now "the Defendant" is offering £x in f&f of relative's "claim".

They want relative to sign an "acceptance form" then will send £s.

They remind relative that relative can "take legal advice" about "this offer"....

 

 

I agree with the above suggestion that relative now writes / asks about the admittance of breach of liability, how they came up with their offer figure and then, perhaps, to suggest the JC guidelines and other likely costs over the next year+ to remedy the medical problems that arose due to the accident.... And see how they reply...

 

Thanks all

[HP Mum]

Update;

The supermarket lawyers keep writing/ offered more money.  But still low amount in comparison to the JC guidelines.  They never write 'without prejudice'

In the meantime relative has been in constant pain / been referred by GP for another scan.

The most recent update is that supermarket lawyers want to instruct their medical expert to examine relative to provide a detailed prognosis medical report of the injuries from the slipping accident.   They want relative to confirm happy to let them instruct this medical expert.

They also want sight of the upcoming new scan results - in order for them to proved the medical expert.  They advise they will find an expert in same vicinity as relative.

They also advise that if relative does not wish to proceed with their medical examination, then they assume relative will proceed to instruct lawyers.

We are not sure what is the next best step....   

Is it normal that only one medical expert - the Defendant's - is appointed??  Or should there be two - relative should appoint one too??  Or should there just be one medico-legal expert - only instructed by relative claimant?

So far we have handled everything without a lawyer

 

 

[SuperVillain]

11 hours ago, HP Mum said:

Update;

The supermarket lawyers keep writing/ offered more money.  But still low amount in comparison to the JC guidelines.  They never write 'without prejudice'

In the meantime relative has been in constant pain / been referred by GP for another scan.

The most recent update is that supermarket lawyers want to instruct their medical expert to examine relative to provide a detailed prognosis medical report of the injuries from the slipping accident.   They want relative to confirm happy to let them instruct this medical expert.

They also want sight of the upcoming new scan results - in order for them to proved the medical expert.  They advise they will find an expert in same vicinity as relative.

They also advise that if relative does not wish to proceed with their medical examination, then they assume relative will proceed to instruct lawyers.

We are not sure what is the next best step....   

Is it normal that only one medical expert - the Defendant's - is appointed??  Or should there be two - relative should appoint one too??  Or should there just be one medico-legal expert - only instructed by relative claimant?

So far we have handled everything without a lawyer

 

 

Instruct a solicitor. It is highly unusual to be handling a claim like this without any legal assistance. 

The defendant’s struggle is that there is no medico-legal evidence from your side. That is why they want to instruct their own expert. Normally the claimant would do this. If the result of the medical evidence is that the claim is valued below £25k it would normally mean the defendant wouldn’t instruct their own expert, unless there was something considerably wrong with the claimant report.

If you agree to their request, fully expect them to instruct a defendant friendly expert. 

If you want a claimant leaning expert then instruct a solicitor. They’ll instruct an expert via an agency who will defer payment till settlement. If you instruct an expert yourself fully expect to pay the cost of the examination and report upfront/on normal 30 day payment terms. A decent expert will cost £1-3k, which you won’t get back from the defendant until the case is settled. 

Even if you instruct a medical expert without legal assistance, will you know if your expert has covered everything relevant? Will you know how to value the claim based on the report? 

Say you agree to the defendant’s expert and they send you a copy of the report with another offer. Will you know if the expert has covered everything relevant? Will you know if the expert is downplaying certain features of the injury to allow his client a lower settlement? Will you know if the offer is reasonable based on the report? 

As I said, my opinion (as a defendant personal injury lawyer) is that this isn’t something you should be handling without legal assistance, and I strongly recommend that you instruct a solicitor. 

Edited March 5, 2019 by SuperVillain

[HP Mum]

Thanks very much for this SuperVillain.   I agree.  Seems like now is the right time for a lawyer

I should have more time to assist very soon - which will help.

 

[HP Mum]

Finally at lawyer stage.

Just wanted to ask about costs.

So far the defendant has written offering money to relative and at no time have they ever written "without prejudice" on their letters.   Does this mean that they will additionally cover legal costs - including the medico-legal expert's fees - too, upon final settlement?

Having never done this before, is it likely that solicitor and the medico-legal expert's costs for relative will be more than 5k?

[honeybee13]

Hi.

 

Have you got a lawyer on board or are you about to please? If you have one now, they should be able to answer your questions.

 

HB

[HP Mum]

this week coming.  just trying to mentally prepare

[SuperVillain]

Does it say Part 36 Offer then? Unusual if it’s not a part 36 offer or a calderbank (without prejudice save as to costs) offer.

 

Your lawyer will assist with explaining the offers once he/she has seen them.

[HP Mum]

No mention of part 36 in any letters.  No mention of without prejudice save as to costs

 

I think its been handled, so far, by a junior - perhaps because the claimant is an elderly person??

Edited May 11, 2019 by HP Mum

[HP Mum]

Also - what happens if the potential claim looks like being above £25k?   Does this mean it falls outside of the CPR - Protocol Procedure.

I was just looking at the JC Guidelines.  Given a lot of time has passed now and the injury has caused and is causing a lot of pain,  now with surgery looking like a possibility, this claim may well be in the "very serious" bracket

[renegadeimp]

2 hours ago, HP Mum said:

No mention of part 36 in any letters.  No mention of without prejudice save as to costs

 

I think its been handled, so far, by a junior - perhaps because the claimant is an elderly person??

More so because you dont have legal representation yet. A good lawyer will also tell you never to accept the first offer.

[HP Mum]

point taken Renegadeimp.

Now "we" will be taken serious by way of having legal representation. 

So lets see how "quick" they respond with better offers from now on.

"we" have rejected several offers already.  Mostly because we know they have been well under the JC Guidelines.

I will keep you all informed as to what the lawyers recommend...

Thanks

[HP Mum]

So - now in the hands of a PI lawyer.

I didn't realise there is a 3 year time in which to start proceedings...

 

So all medical records and reports collated for the (relative's) medico legal expert.

 

Now getting quotes for stair lifts.  Lawyer suggests that if injury so bad that impairs walking upstairs, that installing a lift may be part of the claim?

 

Certainly everything that's been discussed on here seems accurate - ie that injury isn't minor, so checking against the JC guidelines, their latest offer falls well short of the appropriate considered level.

Lets see...

Edited May 23, 2019 by HP Mum

[HP Mum]

update:

liability admitted in writing by lawyer on behalf of supermarket!

Waiting for medico-legal lawyer to 'do their job' so the PI lawyer & Defence lawyer can come to an agreement on claim value and costs..

Been a long time, but finally getting there.... 

[HP Mum]

Bit more of an update. This is still running along.  It seems to have taken ages to collate all the different medical reports - medico legal lawyers involved now. 

The injury and repercussions have worsened - so really not sure where this will end up as a financial payout?  Certainly very happy that we took the forum advice to get a pi lawyer - it would have been far too much work and stress to handle for relative and family alone.

Really hoping lawyers come to a good agreement soon...