Hodge Jones & Allen

Our client, whilst riding his motorcycle in Central London, was involved in a collision with a car, driven by the Defendant. The Defendant was turning right from a minor road onto a main road. It was after dark. There was a line of parked cars along the main road and our client was riding in the dominant position of the main road following some traffic ahead of him. The Defendant edged out to turn right and then stopped. Our client believed the Defendant had seen him and was stopping to give way, and so proceeded onwards at about 30 mph, which was the speed limit. As our client got to the junction the defendant then pulled out in front of him and a collision occurred.

Our client was thrown over the bonnet of the Defendant's car and landed in the road on his left shoulder. Police and ambulance came to the scene. Our client was taken to hospital and was diagnosed as suffering from a brachial plexus injury. The brachial plexus is a network of nerves around the shoulder leading from the spinal cord which supply and operate the arm, forearm, hand and parts of the shoulder.

He underwent an exploratory operation where the nerve damage was identified close to the spinal cord. He was advised that there was a reasonably good prospect of the nerve repairing itself over the following couple of years but this has failed to occur.

As a result of the accident, our client permanently lost all function in his left arm and shoulder. He now wears his arm in a sling although he can move his fingers. Our client had previously been very active and sporty, enjoying mountaineering, paragliding, rock climbing and diving.

Our client initially consulted 3 different firms of solicitors about 6 months after the accident, including this firm. He received similar advice to the effect that he had quite good prospects of success although there may be a finding of some contributory negligence, or at least a risk of this. He had legal expenses insurance but those insurers would not allow him the freedom to appoint solicitors of his own choice.

Our client hoped that he might make a full recovery and consequently delayed instructing solicitors to pursue a claim.

He works as a self-employed IT Consultant and managed to return to work within about 3 months of the accident. His injury did not prevent him from working apart from increased time off for medical treatment and increased occasional sickness.

Our client then contacted us again, believing the 3 year limitation date was about to expire. He indicated that he had decided to instruct us to pursue his claim. He had however made a mistake and the limitation period had in fact already expired 4 days earlier.

Once we pointed out his mistake over the date we advised the claim could be rescued and proceedings were immediately issued and an application was made to the court under section 33 of the Limitation Act 1980 seeking an order allowing the claim to proceed out of time. Faced with our application to the court, the Defendant's insurers chose not to dispute the application and consented to an order allowing the claim to proceed.

The Defendant's insurer’s response to the claim was to formally deny liability and to allege the accident was our client's own fault.

The Defendant then made an offer of settlement of 60% liability i.e. a discount of 40% contributory negligence by our client. We advised on this and our client rejected this offer.

Our client then made a counter offer of 5.1% contributory negligence on the basis that Defendant accepted 94.9% liability. This was refused by the Defendant, who put forward another offer of 80% liability discounting 20% for contributory negligence.

The Defendant applied to the court for permission to rely on expert evidence from an accident reconstruction expert. We successfully opposed this application before the case management Judge on the grounds there was an adequate police report and an absence of any useful forensic data requiring expert analysis. The lay witnesses who saw the accident were generally supportive of our client.

The Defendant later disclosed a report his insurers had obtained in any event from an accident reconstruction expert and indicated he planned to apply to the trial Judge for permission to call such evidence. The report opined that the accident was our client's fault for driving too fast.

Our client did not accept the Defendant's offer of 80% liability and after advice he made a counter offer of 10.1% contributory negligence. This was also refused by the Defendant.

We made a claim for general damages (pain suffering and loss of amenity) and special damages (loss of earnings and future earnings, care, adaptions, medical treatment).

Shortly before the final hearing the Defendant made a payment into court of £300,000 as a fully inclusive settlement for both general damages and special damages and interest.

Counsel advised, and we agreed, that there was a risk that this payment in would not be beaten at trial. Our client chose to accept the £300,000.00 plus recoverable legal costs. We were instructed in late September 2001 and settled the claim in early January 2003.

Points of interest

The Limitation Act 1980 stipulates that a claim for damages for personal injury becomes void if court proceedings are not commenced within 3 years of the date of the accident.

However section 33 of the Act provides that the court may disapply the period if it is "just and equitable" to do so. The court has a considerable discretion and consequently appeals from first instance decisions are rarely successful. This means the applicant must ensure the case is handled with skill and care. A clear understanding of the law is essential, as time is always very limited in these cases.

Faced with such an application in a substantial claim, a Defendant will usually strongly contest it, as success will mean the insurers will completely escape any liability. In this case however the Defendant's insurers could see they were going to lose and chose to settle to prevent costs escalating.