Magazine

The

Issue 8 | Spring 2016

Also inthis issue Part 36 prevails over fixed costs MASS celebrating 25 years

Handling Two Wheel Claims

MOTOR ACCIDENTSSOLICITORS SOCIETY

M SSS

2 Tel 0117 925 9604

The industry awaits with interest the Governments consultation detailing their intentions on the proposals to end general damages for whiplash claims and raise the small claims limit. If, as expected this is published in the coming months, it will be scrutinised and comment made on its content.

Still tricky and contentious – we will be looking at the many and varied arguments surrounding LVI claims.

Formed in 1991 to represent the victims of road traffic accidents (RTA) and promote the efficient and effective provision of legal advice – twenty five years on we are proud to still be doing the same! Over the last 25 years, the way personal injury (PI) claims are handled and those involved has changed beyond all recognition. The profession has had to endure and adapt to a multitude of rule and process changes including fixed recoverable costs, RTA Portal, LASPO and MedCo to name just a few. All have demanded RTA practitioners to adapt their businesses and processes and improve efficiencies but with reduced

fees and it is a credit to the profession that they have achieved this. MASS has also evolved and developed to meet those changes and has grown in size and stature to be regarded as the leading authority in all matters involving RTA claims. We are extremely proud to be at the heart of Government and industry discussions and negotiations, surrounding RTA PI claims providing a voice for accident victims and a presence for claimant solicitors whom otherwise would not have the opportunity for their opinions and experiences to be heard. Without doubt, had it not been for

the expertise, dedication and shear hard work of the various MASS Chairman, Committees and our membership, access to justice for the accident victim would be significantly reduced. MASS and our members should be immensely proud of the achievements that we have made. However, our work is far from done. Our profession now has possibly it’s biggest fight ahead in order to continue to protect the rights of the accident victim to ensure they retain their right to justice and a fair and just compensation system and you can be assured that MASS will be at the forefront of this battle.

The MASS Insight Magazine

MASS IS CeLebRATInG A quARTeR OF CenTuRy!

Whiplash Damages and the Small Claims Limit

Low Velocity Impact Claims

Foresight...

ORTHOPAeDIC InjuRIeS Due to their vulnerability on the road, when riders are involved in an accident they are naturally at a higher risk of more serious injuries. Consultant Christopher Handley highlights the main orthopaedic injuries that can be sustained.

10

COnTenTS

eDITOR’S nOTe 5 With the spring weather arriving at last, we continue to await the impending Moj Consultation on their proposals for whiplash damages and the small claims limit. However, with the sunshine comes the increased presence of motorcycles and bicycles on our roads. Consequently this edition looks at all aspects of “Two Wheels” with some very interesting and helpful articles and a perhaps a few facts and figures that you didn’t know!

eDITORRoger Henderson COnTRIbuTORSjane Loneyjenny brauntonPhil Coupland

DeSIGn Paul Skuse | azurdesign.co.uk ADVeRTISInGelena PapantoniTelephone 0117 925 9604 email office@mass.org.uk

MOTOR ACCIDenT SOLICITORS SOCIeTywww.mass.org.uk 19-20 St Augustines Parade, bristol bS1 4uLTelephone 0117 925 9604email enquiries@mass.org.ukDX 78156 bristol

Printed at Doveton Press, Willway Street, bedminster, bristol bS3 4bG. Tel 0117 966 0078. www. dovetonpress.co.uk

CyCLIST InjuRIeS 11 The increased popularity of cycling in the uK is also unfortunately reflected in the increased number of injuries. Whilst the health benefits far outweigh the risk of injury, trauma and orhopaedic surgeon, Simon Royston considers the injuries that cyclists can incur.

nAbD 13 The national Association for bikers with a Disability provides advice and guidance for disabled people who have a passion for motorbikes and would love to start or return to riding. Clearly their work and support is invaluable.

ReHAbILITATIOn Is this different for motorcyclists and cyclists? Liz Haunch discusses not only how to treat the physical injuries but also the psychological issues that riders can suffer.

ROSPA – CyCLe HeLMeTS 15The debate about the benefits of cycle helmets continues to raise some interesting points. The well known organisation, RoSPA puts forward their views on cycle safety and the pros and cons of wearing a helmet.

CyCLInG uK – 16CyCLe HeLMeTS Should cycle helmets be made compulsory like motorcycle helmets? Cycling uK (formerly CTC) prefer to consider it as a matter of choice, like many things in life.

FACTS & FIGuReS 14 Do you know when the first bicycle was invented?! A few interesting facts and figures about cycling and motorbikes.

PART 36 20 Part 36 is a useful tool for settling claims. The recent Court of Appeal ruling of broadhurst v Tan and Smith v Taylor provides claimant solicitors with a significant boost. Ghazala bashey from Winns Solicitors who ran the cases provides a detailed account of the ruling and its significance.

MOTORCyCLe CLAIMS: THe COMPLeXITIeSbeing less visible and therefore more vulnerable on our roads, Motorcyclists are at a higher risk of being killed and seriously injured. Lorna Wilson looks at the complexities of motorcycle claims and provides some useful guidance on what to look out for when handling motorcycle claims.

6

8

The MASS Insight Magazine Spring 2016

www.mass.org.uk 3

neither the Society nor the editor accept any responsibility for the accuracy of articles or their contents or for the views and opinions expressed by individual contributors. Copyright – Motor Accident Solicitors Society 2016.

All rights reserved. no part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system without the prior written permission of the editor.

MOTOR ACCIDENTSSOLICITORS SOCIETY

M SS

MASS DIPLOMA IN PERSONAL INJURY

Are you new to PI, or are you looking to move into it? The MASS and University of Law MASS Diploma in Personal Injury ensures that you are equipped with all of the skills needed to start or further your career. Get on. Go to www.masstraining.org.uk or call 0117 925 9612 for a brochure. The PI Training Specialists

specialise PIin

I needed the skills to

So I got them

4 Tel 0117 925 9604

For more information, and a list of our experts and CVs, contact Julie-Ann Amos

on 0207 118 1134

or visit www.mlecl.com

email us at Reports@mlecl.com

QUALITY MEDICAL EXPERT WITNESSES

With extensive experience working alongside solicitors and counsel in PI, Clinical Negligence and Criminal cases, we offer experienced medical Expert Witnesses in:

Our expertise is second to none.

5

Despite the welcomed seasonal transition from winter into spring, things can hardly be said to have “sprung into life” in

certain areas of the motor personal injury world.

T

Roger Hendersoneditor, The MASS Insight Magazine

he MedCo process for experts wishing to complete their accreditation rumbles on. Some changes to the RTA Portal are scheduled to come into affect in a few months time, other aspects of the portal, such as user pays, have been put back.

Meanwhile, news on the proposals for ending whiplash general damages and increasing the small claims limit has gone rather quiet, perhaps not surprising, given the increasing debate on the rather more important matter of whether the uK should leave europe. It seems to be anybody’s guess as to when the consultation document will be formally released, making the initial April 2017 intended implementation date look increasingly unlikely.

In contrast to the rather “pedestrian” pace of the matters above, we focus in this edition on our (sometimes too) fast two wheel road users. We have a variety of extremely interesting articles regarding motor and pedal cycles, looking at various legal and medical aspects, including contributions from ROSPA and Cycling uK.

It should also be noted that the Motor Accident Solicitors Society celebrates its 25th year in 2016, so happy silver anniversary to MASS!

In the meantime, enjoy the longer days and evenings and as always, if you have any feedback or wish to see any particular issues addressed, please feel free to email your suggestions and comments to office@mass.org.uk

We focus in this edition on our (sometimes too) fast two wheel

road users. We have a variety of extremely interesting articles

regarding motor and pedal cycles, looking at various legal

and medical aspects, including contributions from ROSPA and

Cycling uK

eDITOR’S nOTe

www.mass.org.uk

6

MOTORCyCLe CLAIMS: THe COMPLeXITIeS

The MASS Insight Magazine

Tel 0117 925 9604

Although all types of road user are at danger of being injured or killed, motorcylists are at a greater risk and the Highway Code categorises them as vulnerable road users as they can bear the greatest burden of injury and are less visible.

7

Motorcycle Claims: The Complexities

any motorcycle accidents occur as a result of a vehicle driver’s negligence and despite Government campaigns helping to raise awareness of this issue statistics are still shocking. It’s an unfortunate reality that while motorcyclists make up 1% of total road traffic they account for 19% of all road user deaths, and motorcyclists are 38 times more likely to be killed in an RTA than car occupants. In fact, deaths are rising each year - in 2014 339 motorcyclists died and 5289 were seriously injured in Great britain.

DeTeRMInInG LIAbILITy In bIKe CLAIMSDue to the nature of the accidents, and severity of the injuries, motorcycle claims are usually more complex than many other types of claims. Liability is usually an issue on most cases, at least from the outset. A lot of cases we see involve filtering or overtaking and this is when liability gets more difficult to establish. Filtering is a legal manoeuvre and bikers are entitled to do it. However, a lot of car drivers still do not check for bikers before pulling out in a queue of traffic. However, these types of cases often settle with some split on liability. The level of split can very much depend on the experience of the law firm dealing with the case. Third party insurers often quote out-dated and sometimes irrelevant case law and make low offers based on this. So a high percentage of cases need to be litigated on to get the best result for the client and experienced law firms are prepared to do this. The extra compensation could mean the difference between the client being able to replace their bike or get the care and treatment they desperately need. To prove fault in a motorcycle accident, evidence is key to success. Locus reports, forensic engineering

evidence and accident reconstructions are all often used. As more bikers wear cameras on their bike or helmet, this is the most valuable evidence lawyers can obtain.

THe HIGHWAy CODeIt’s important to consider the Highway Code when deciding how liability should be apportioned and there are a number of rules that provide specific guidance to motorcyclists (83-88). There are also rules advising drivers how to take extra care on the roads, and the need to watch out for motorcyclists (167,151, 170, 211). However, it’s important to remember it’s a guide and it can be difficult to prove which party has not complied with it. The rules which say ‘should/do/do not’ are only guidance and not criminal offences if not complied with.

MOTORCyCLe CASe LAWThe courts have become more ‘biker friendly’ over the years, as the number of bikers on the roads increase. The difference in attitude is evident when looking at case decisions over the years:

1. Powell v Moody [1966] 110 Sol jo 215, The Times, 10 March, CA. Liability was apportioned 80:20 against the biker. This case is often quoted by insurers and offers of 20% made.

2. Davis v Schrogin [2006] eWCA Civ 974. It was held at the court of appeal that the biker could not avoid the accident and no negligence was found.

3. Beasley v Alexander [2012] eWHC 2197 (Qb). This was a case that Fletchers dealt with and took all the way to the high court, who found the claimant motorcycle was travelling too fast and filtering but found the accident would have happened in any event when

the defendant pulled out. no negligence attached to the motorcycle.

4. jones v Lawton [2013]. The judge found the defendant should have checked more carefully before pulling out. The motorcyclist was found one-third at fault for filtering too fast for the circumstances. Obviously no two accidents are exactly the same but the abundance of motorcycle case law does help add weight to a case and how liability is decided at court.

THe FuTuRe FOR MOTORCyCLISTSClaimant lawyers face an uncertain future following the surprise announcement in the Autumn Statement to ban whiplash claims and increase the small claims limit, as the government try to target a ‘compensation culture’. What we do know is that the MOj and AbI previously confirmed to Fletchers and MASS that motorcyclists were not intended to be included in the MedCo reforms. Motorcyclists often do not sustain ‘soft tissue injuries’ as the main injury, and if they do they are not usually defined as ‘whiplash’. The added complexity and injury severity that comes with motorbike accidents makes it essential that bikers are able to get proper representation and are clearly not therefore suitable for the small claims track. It’s expected, and indeed essential, that should the planned reforms go ahead, the definition of ‘whiplash’ will mirror that in the Road Traffic Accident Pre-action Protocol 1.1 (16A). This would mean vulnerable road users will not be included in any ban and will also then potentially be excluded from any significant increase in the small claims limit.

www.mass.org.uk

Lorna WilsonSenior Manager in the Motorbike Accident Team,Fletchers Solicitors, Southport

M

n some respects, no. The injuries from some pedestrian, driving and workplace accidents can be very similar, and the process is the same. We assess, we plan, we implement and then re-evaluate. The plan progresses, we tweak that plan, and coach that injured client towards their goals.However, working with bikers and cyclists is different. Their injuries are often more serious, they are usually men, and may well have physically demanding jobs. On many occasions I’ve met bikers who have never driven a car, so they’ve lost their only means of transport. bikes are a passion, something only other bikers and cyclists understand, and their social life may revolve around those two wheels.

The main difference is their attitude. Someone who regularly gets on a vehicle – whether it has an engine or not – with only two wheels just seems to be wired up slightly differently. While many clients need encouraging to push themselves through the agony of rehabilitation, both mentally and physically, your biker is likely to need reigning in, especially with the physical side of their rehabilitation.

All too often I hear biker clients saying “it’s taking a long time this isn’t it?”, to which I respond “no, it’s only three months since you horribly broke your neck/leg/arm. That isn’t long, you shouldn’t be back at work full time yet”, and yet that is exactly what some of my client have done. So we may have to allow them to fail a little before they learn to pace themselves. The goals they set for themselves usually include “getting back on my bike”. It’s useful to have resources such as the national Association of bikers with a Disability to signpost them to, as they have a wonderful support network, and can help with information on adaptations. They are also often reluctant to have psychological therapy at first. We may have to wait until they have failed at

some personal goal before the need for it hits home. When a biker or cyclist cannot get past that psychological barrier to get back on the saddle, I have seen massive deterioration across the board for their rehab. On the whole, psychological treatment is effective, and even those that say “I’ll learn how to drive now”, or “I’ll get a trike” early on, are often back on their bike before we close

our file. I had one client who was riding his motorbike with an external fixator on his leg, and turned down leg lengthening surgery, with a 4 inch discrepancy, because it would mean a year without riding and he felt that “life is too short to miss a year”. His passion for riding was such that he only had psychological therapy when he ended up in hospital for three months with an infection (not related to his riding with the external fixator I’m pleased to note) which pushed him into a huge depression. bikers often seem to have a positive attitude towards pain, learning to live with it more easily. They have usually had other accidents before they meet us, at times they’ve had worse accidents, and we have to work with pre-existing injuries. There’s nothing more rewarding than seeing these bikers get back out there. I’ve had clients return to off road racing (see attached), fastest wheelie racing, trekking across countries with their friends for weeks at a time. bikers and cyclists tend to reach rehab goals well, usually with less support, because they have a “get on with it attitude” which, quite frankly makes me look good, and they are generally good fun to work with. I would hate to say I’ve got a favourite group of clients, as I have amazing clients from all backgrounds, ages, attitudes and interests. but if I was forced to choose, I would have to say it’s the bikers.

8

The MASS Insight Magazine

I suppose the first question would be – is it really so different to rehabilitate someone who rides bikes.

Tel 0117 925 9604

I

Liz Haunchbridge Case Management, york

Rehabilitation forbikers and Cyclists

When a biker or cyclist cannot get past that psychological barrier to get back on the

saddle, I have seen massive deterioration across the board for their rehab

Rehabilitation for bikers and Cyclists

The key to successful management of spinal injuries without SCI is the early rehabilitation and mobilisation of the individual

ndividuals involved in road accidents as riders of a motorcycles or pedal cycles do not have the protection afforded to a restrained car occupant involved in an accident. The bodywork of a car absorbs a large part of the “energy” of the impact; a cyclist’s body absorbs all the energy of the impact. The higher the “energy” of the injury, the greater the damage. The greater the damage, the longer the injuries take to heal. The longer healing process takes, the less good the final outcome. The motorcyclist may become a “human projectile” resulting in the significant numbers of spinal injuries sustained, all too many with Spinal Cord Injuries (SCI) resulting in paraplegia or tetraplegia. Limb injuries are commonly severe and frequently compound (open) fractures. Polytrauma is common with injuries to the skeleton and to the head, chest and abdomen and its contents. The non-orthopaedic injuries are the “life threatening” injuries in the acute situation and this may result in the orthopaedic injuries taking second or third place in the order of priority of treatment, such that delayed treatment of those orthopaedic injuries may lead to a poorer outcome than normal. When this occurs it is important that the report writer identifies the delays and the medical reasons for those delays such that a poor outcome is justified in the context of the overall injury complex.

SPInAL InjuRIeS WITHOuT SCIbone or joint injury to the spine, or

the more common diffuse soft tissue injury to the spine are the remit of an orthopaedic surgeon if there is no SCI. Where spinal injury results in SCI then the matter becomes the remit of the Consultants in Spinal Injuries. The key to successful management of spinal injuries without SCI is the early rehabilitation and mobilisation of the individual. Prolonged “rest and restriction” allows the musculature of the spine to become deconditioned and “core muscle weakness” becomes established; once established, chronic mechanical low back pain is common and very resistant to treatment.Polytrauma usually results in the patient being restricted from active early mobilisation as lower limb injuries restrict weight-bearing and activity and result in the use of crutches with gait disturbance and this may cause the back pain to become irreversible.

SPInAL CORD InjuRIeSIn the context of the patient with an SCI, the orthopaedic aspects of the

case may be as a result of orthopaedic injuries to the rest of the skeleton in the index accident or as a result of past orthopaedic injuries or problems that are adversely affected by the rehabilitation from the SCI and wheelchair life. Injuries as part of the injury complex of the index accident should be straightforward, but in polytrauma the upper limb injury takes second place at best with late management and poorer outcomes. Pre-existing orthopaedic injuries or problems in the upper limbs can have a severe impact on the rehabilitation for wheelchair life and the ability of the individual to accommodate wheelchair life. For example, a “minor shoulder problem” from an old sports injury may severely interfere with an individual’s ability to transfer or self-propel a wheelchair. Whilst the shoulder problem was not caused by the index accident, the necessities of wheelchair life will significantly change the outcome of the minor shoulder problem.

www.mass.org.uk

I

9

Christopher HandleyOrthopaedic Consultant, Aylesbury

The Orthopaedic Aspects of Motorcycle and Pedal Cycle Injuries(excluding Head Injuries)

10

The MASS Insight Magazine

Tel 0117 925 9604

In this context the report writer must address the “but for…” situation. but for the SCI most minor shoulder injuries are easily accommodated in normal ambulant life and if they become bad enough to warrant surgery, then that surgery, in the ambulant individual, carries a high expectation of outcome. A wheelchair user cannot transfer or wheel with a damaged shoulder without inevitable progressive deterioration of that shoulder and has a poor response to surgery, resulting in acceleration of care needs.

bRACHIAL PLeXuS InjuRIeSFalling onto the point of the shoulder and distracting the shoulder down from the neck can result in injury to the brachial plexus. nerve roots come out of the side of the neck and coalesce under the collar bone into a plexus from which all the nerves of the shoulder and upper limb emanate. The spectrum of injury is vast, from the devastating avulsion of nerve roots from the neck to a transient neuropraxia (bruising of the nerves) that resolves. Part of the plexus can be injured, sparing other parts. If so, usually the upper part is damaged most and this results in severe shoulder problems from loss of innervation of the proximal muscles and a “flail

shoulder” with a functional hand below, but no ability to put that hand to use as the shoulder is not actively mobile.

SHOuLDeR InjuRIeSThe “classic” injury to the shoulder of a cyclist is the fall onto the point of the shoulder and disruption of the acromio-clavicular joint (the little

joint at the top of the shoulder at the end of the collar bone). Whilst complete disruptions of this joint are obvious, less severe disruptions are not and are commonly missed initially. This is particularly important in the SCI patient. Fractures about the shoulder complex are common.

eLbOW FRACTuReS & FRACTuRe DISLOCATIOnSThe elbow is a very complex joint allowing both hinge movement at the elbow and the rotational movement of the elbow-forearm-wrist complex. Fracture dislocations of the elbow do give generally poor results and stiffness with a degree of loss of function following management is common. Following “high energy” injuries Heterotopic Ossification or Myositis Ossificans (the formation of bone within the soft tissues about the joint) is not uncommon around the elbow and leads to very poor outcomes.

LOWeR LIMb InjuRIeSThe pedal cyclist is at risk of crush injuries when hit by a vehicle; they have nothing to protect the legs from direct injury. Crush injuries inevitably involve damage to the soft tissues as well as fractures to the bone. Whilst the bones heal with the formation of

new bone, the soft tissues heal with scarring, such that the crush injury to a calf muscle in a fracture of the leg will result in long-term loss of function as a result of the muscle damage healing with scar rather than healthy muscle. “Compartment Syndromes” are common in crush injuries. bleeding into a muscle compartment causes a pressure rise within that compartment

and that pressure can then stop blood flowing in and out of the compartment resulting in muscle death. Fasciotomies (cutting the skin and fascia overlying the affected compartment and leaving them open) are required and the fractures are managed with an external fixator, delaying bone healing.Severe crush injuries can lead to the loss of the viability of a limb and subsequent amputation. If a motorcyclist is knocked off his bike at 50 mph and hits an immovable object his lower limbs suffer severe fractures that are commonly compound. The “Compound Fracture” is a spectrum from the “Grade 1” where a spike of broken bone comes through the skin from within (of minor consequence) to the limb threating severe compound fracture with neuro-vascular injury and skin, soft tissue and bone loss. The truly “Mangled extremity” with a compound fracture, skin and soft tissue loss and neurovascular injury is best treated with immediate amputation. The patient who has protracted attempts to salvage such a limb and then has a late amputation never rehabilitates. Multiple limb injuries can result in the individual having no “good leg” to walk on with crutches or, upper limb injuries prohibit the use of crutches for a single leg injury. The inevitable protracted time spent in bed, or in a wheelchair temporarily, results in generalised “deconditioning” and subsequent rehabilitation is compromised. As a simple example, the motorcyclist suffering a single severe leg injury, a compound fracture of the tibia, managed in an external fixator and multiple operations, taking a year to heal fully will find it very difficult to get back to work in anything other than a sedentary job. He was deconditioned over a year and then started his rehabilitation one year after the accident – too long and then too late.

The MASS Insight Magazine

If a motorcyclist is knocked off his bike at 50 mph and hits an immovable object his lower limbs suffer severe fractures that are

commonly compound

Injuries in Cyclists

www.mass.org.uk 11

The use of bicycles, as opposed to motorbikes, has risen steadily in the uK over the last two decades, and rose by 12% in the

years 2002-12. This rise therefore predates the so-called “Wiggins effect” prompted by events in 2012.

ational figures suggest that 2 million people cycle once a week or more in the uK, and that the great majority of these cycle for leisure rather than to commute of for business. With this rise, there has been a steady increase in the number of cyclists injured and killed each year. This has lead to a common misconception that cycling is dangerous and risky. Analysis suggests that the risk of any injury to a cyclist in the uK is 1 injury per 20 000 hours cycled, and a single death occurs for every 8 million cycle trips. Overall, cyclists are at no more risk of serious injury than pedestrians. Cycling is no more risky per hour than tennis, gardening and, curiously, use of a rowing machine. Public health data suggest that, across the population as a whole, the overall health benefits of cycling far outweigh any risk of injury. The pattern of injuries seen in cyclists who share a road with motorised vehicles is similar to those seen in pedestrians, and these vary widely. In cyclists who are injured under their own power rather than being hit by larger vehicles, there is a clear pattern of injuries. These differ from injuries in motorcyclists and in pedestrians hit by vehicles. because

cyclists travel at relatively low speeds (25 mph on the flat is difficult to maintain) and because they tend to fall forwards over the bars or sideways, the great majority of injuries are to the head and to the upper limb, especially to the shoulder girdle. 40% of reported injuries are to the upper limb,

and roughly 40% of patients attending hospital after a cycling accident have a head injury. Only 25% of injured cyclists have an injury to the lower limb, which is equivalent to the rate in pedestrians hit by vehicles. Significant injury to the trunk is rare (5%) in isolated cycle injuries. In the upper limb injuries sustained by cyclists, it is reported that the great majority are to the shoulder girdle, and this is reflected in patients seen in the author’s own unit. The 2 commonest injuries are dislocations of the Acromio-Clavicular joint [ACj] and fractures of the clavicle. The ACj is easily injured joint and is injured when significant load is applied to the extended arm. Dislocations can be classified by

various systems, but broadly the distinction is made on the extent of displacement between the acromion and the lateral end of the clavicle – see Fig 1.

For relatively minor injuries, with no great displacement, simple treatment in a sling until the acute pain settles, which is usually within a few days, followed by a 3-4 month period of self-directed mobilisation and rehabilitation usually leads to a almost complete recovery with only minor discomfort and loss of function. Minor ACj injuries are very common in contact athletes, and conservative treatment returns even elite rugby players to their previous level of function. When the initial displacement is greater, as in Fig 1, there is now good clinical evidence that surgical stabilisation gives better results, especially for patients who require a lot of overhead activity for work or leisure.

n

Simon RoystonConsultant Trauma & Orthopaedic Surgeon, northern General Hospital, Sheffield

Public health data suggest that the overall health benefits of cycling far outweigh any risk of injury

Fig 1 ACj dislocation, showing the displacement between the clavicle and acromion.

12

The MASS Insight Magazine

Tel 0117 925 9604

This surgery is usually now performed arthroscopically as a day-case, and involves passing a suture through the clavicle to hold the clavicle down in the reduced position while the ligaments around the ACj heal – see Fig 2. Surgery is followed by a 4 week period of full time sling use, which is a significant functional imposition. Rehabilitation begins after this 4 weeks and most commonly involves one or two physiotherapy sessions a week for 8 to 10 weeks. The great majority of rehabilitation is self-directed and consists of regular exercises to regain movement, strength and confidence. The author’s experience of his own ACj dislocation treated surgically is as follows: Movement returns to a functional level by 4 months form surgery, and is completely restored by 6 months. Strength is normal by 6 months. Light manual work is possible by 5 months and sporting activities are normal at 6 months from injury. by 6 months from injury, pain is insignificant.

If the initial ACj injury is treated conservatively, and the results are not acceptable, it is possible to perform a delayed reconstruction of the injured ligaments. This is a larger surgical undertaking, with a much more prolonged and intense rehabilitation. For these reasons, and because the results of early arthroscopic repair are so good, there is an increasing tendency to recommend surgery for even fairly minor injuries.

Clavicle fractures in cyclists are treated as they would be in any other group. The clinical literature suggests that when the fracture is significantly displaced (usually by shortening and overlap of the fragments) or there are multiple fragments, better clinical results are obtained by surgical stabilisation (Fig 3, 4) than by conservative treatment in a sling.

It must always be borne in mind that the great majority of clavicle fractures treated conservatively will heal, but significant shortening will alter the position of the shoulder and this can make cycling, carrying rucksacks, overhead work etc. more difficult. Again surgery is usually as a day-case or overnight stay. because the fixation obtained with a plate and screws is stronger and more stable than the suture used to stabilise the ACj, many surgeons would only recommend the use of a sling for comfort after fixation of most clavicle fractures. Many patients are able to wean themselves out of their sling for day to day activities after 2 weeks, so they are much less likely to lose movement and strength in the shoulder. The rehabilitation process is therefore much quicker and less intensive. Most patients see a therapist 4-6 times in the first 2 months after surgery and can then complete their own rehabilitation at a standard gym. by 6 months from injury, the great majority of well-motivated patients will have essentially normal function in the injured limb, with only minor discomfort and loss of confidence. because the clavicle is subcutaneous, the plate used to stabilise the fracture is always palpable and usually visible form a conversation distance. A number of patients ask for plate removal once the fracture is healed. Plate removal is a day-case procedure. A sling is used

only for comfort, and the great majority of shoulder function is restored to it’s previous level within 4 weeks of surgery. The commonest lower limb injury of significance (most cyclists regard abrasions and sprains as a part and parcel of cycling) is a hip fracture. These result from a sideways fall landing directly onto the hip. unlike hip fractures in the elderly these are fractures through normal healthy bone with good healing capacity.

Surgery is universally recommended (Fig 5, 6), the precise surgery being determined by the fracture pattern. Whilst the fracture will heal in roughly 95% of cases, most surgeons would recommend a 6-12 week period of protected weight-bearing with crutches, which is a major imposition on daily activities. Most patients can be walking with a single stick or less by 6 months. Return to light work is possible by about this time. A significant number do not return to heavy work, or to cycling, after a hip fracture because of residual discomfort, loss of strength, and loss of movement.

The MASS Insight Magazine

Fig 2 Post-operative image, showing the reduction of the ACj, and the buttons on the suture inserted to stabilise the joint.

Fig 3 Clavicle fracture, showing the displacement and shortening at the fracture site.

Fig 6 Post-operative image after stabilisation with an intramedullary nail.

Fig 4 Post-operative image, showing the plate and screws.

Fig 5 Hip fracture sustained falling off a bike.

nAbD. For Motorcyclists ‘A Disability need not be A Handicap’

www.mass.org.uk 13

e offer advice, guidance and support on any issues affecting the use of motorcycles, trikes, sidecar outfits and/or quad-cycles by people with disabilities. We have also been involved in the design and development of many of the most popular and successful types of motorcycle control adaptations, many of which are now commercially available from uK-based manufacturers. Control adaptations come in many forms, such as; electronic push-button gear changers, twin-lever units for break and/or clutch adaptations, thumb-operated brake levers, thumb-operated throttles, left-hand throttles and many more. In addition to this we have a number of specially adapted 125cc motorcycles that are loaned-out free of charge to people with disabilities specifically for the purpose of taking training and tests. These learner/loaner motorcycles are also often used when people with disabilities require rider assessments. We also have two trikes converted to suit the needs of wheelchair users that are specifically used for assessment purposes.There are very few disabilities that cannot be catered for with the correct combination of control adaptations

and/or vehicle modification. From paralysis due to brachial plexus injuries, to amputations, paraplegia, incomplete quadriplegia, to cerebral palsy, MS and/or paralysis due to stroke; with the correct adaptations and a little ingenuity, when it comes to motorcycling a disability need not be a handicap.To date the nAbD has directly helped more than 12,000.00 people with disabilities to gain or regain access to the freedom and independence of motorcycling throughout the uK, eire, Isle of Man and the Channel Isles. We have also been very successful in ensuring that motorcyclists with disabilities are not unfairly penalised by vehicle and/or licensing legislation.The nAbD negotiated the europe-wide exemption from MSVA testing for vehicles that are specifically built for the use of disabled people. More recently an exemption that allows people with disabilities to ride trikes or sidecar outfits on provisional licences came about as a result of a report I provided for the Driving Standards Agency during the consultation period on the 3rd european Licensing Directive’.We produce a quarterly magazine called ‘Open House’ which is mailed directly to nAbD members and other

interested parties. Some back issues are also available on-line at www.openhousemagazine.co.uk. We also have a web site at www.nabd.org.uk As a result of my experience as a disabled motorcyclist and my 24 years as the Chairman of the national Association for bikers with a Disability (nAbD), over the past four or five years I have been regularly instructed by a steadily-growing number of solicitors as an expert witness to carryout assessments and produce comprehensive reports for the court detailing all of the motorcycling needs of seriously injured motorcyclists (due to RTAs, industrial injuries etc.) and the costs relating to those needs. being all too painfully aware of how these often-significant costs can sometimes be overlooked in compensation claims I have gone to great lengths to ensure my reports include thorough explanations of these needs and a detailed break-down of both the initial and the projected future costs of control adaptations, vehicle modifications, adaptations to protective motorcycle clothing, specialised equipment to allow a disabled rider to maintain a vehicle correctly and any number of other factors relating to their needs as disabled motorcyclists.

What is the nAbD all about? Here it is in a nutshell…

The nAbD is a uK-based registered charity and like MASS, is celebrating its 25th anniversary in 2016. We are recognised by many authorities and organisations in the uK, Isle of Man and Channel Isles as the world’s leading experts in the field of motorcycling for disabled people.

WRick Hulse national Association for bikers with a Disability (nAbD), Manchester

14 Tel 0117 925 9604

The MASS Insight Magazine

• First bicycle, the Draisine, was invented by baron von Drais in 1817. Also known as the Hobby Horse.• In 1858, a version was created with pedals added to the front wheel. Known as the Velocipede or boneshaker.• The first Penny Farthing was created in 1866.• by 1869, solid rubber tyres were being used. That year, the first cycling road race took place, from Paris to Rouen, a distance of 113 km.• The first chain-driven bicycle was patented in 1879, known as the bicyclette.

• Inflatable tyres first appeared, courtesy of john boyd Dunlop, in 1888.• 1903 saw the first Tour de France, six stages each averaging over 400 km. The winner was Maurice Garin.• 1937 saw derailleur gears introduced in the Tour de France. Riders previously had to change wheels to change gear.• The first organised bMX event took place in 1956.• The first mountain bikes appeared in 1970.• bicycle almost unique machine in that it looks virtually the same today as it did 100 years ago.

In 2014, 21,287 cyclists were injured in reported road accidents (up 9.5%), including 3,514 who were killed or seriously injured. The real figures however are likely to be much higher if cycling accidents

away from the road are included, as well as casualties not reported to the police.

MOTORCyCLISTS

5289 seriously injured (up 8.7%)339 motorcyclists killed (up 2.4%)

On road pedal cycle traffic rose by 3.8% to 3.25 billion vehicle miles (a rise of 27% since 2007).

CyCLIST CASuALTIeS 2014

Child Adult All*Killed 6 107 113Seriously injured 273 3,090 3,401Slightly injured 1,726 15,684 17,773All 2005 18,881 21,287

(Source – “Reported Road Casualties Great britain: 2014 main results”, Department for Transport, 2015)

Colin Richmond, barrister at Zenith Chambers, Leeds, looks back at how it all started with the humble bicycle and a few milestones since.

Pedal and Motorcycling Accidents – Facts and Figures

The History of the bicycle – How much do you know?

15www.mass.org.uk

Cycle safety and the effectiveness of helmets

RoSPA does not support calls for compulsory cycle helmet laws because it is not clear whether such a law would discourage some people from cycling, which, if it did, would mean losing the

health and environmental benefits from cycling

he Government’s ambition is to make us a cycling nation and to double the number of cycling trips by 2025, with cycling and walking being the natural choice of travel for short journeys. This vision is outlined in the recently published DfT Cycling and Walking Investment Strategy.The benefits of active travel are now well recognised. Regular cycling helps

to reduce the risk of illnesses such as: cardiovascular disease, strokes, type 2 diabetes and a variety of cancers. However, on the flip side, unfortunately there were 21,287 cyclist reported injured on our roads in 2014, 3,401 seriously a rise of 8.2% on the previous year. This does not necessarily mean that our roads are becoming more dangerous, it could be partly explained by increased exposure rates. On-road cycling rose by 3.8% to 3.25 billion miles in 2014 (a rise of 27% since 2007). RoSPA believes, as its new brand strap line says ‘accidents don’t have to happen’ and that we need to ensure that more cycling does not

lead to more cycling casualties. The key is to create a safe on and off-road cycling environment, improve driver and cyclist attitudes and behaviour towards each other, and to produce safer vehicles that reduce the risk to cyclists. RoSPA strongly supports measures which encourage healthy and sustainable travel. There continues to be much debate

regarding the effectiveness of cycle helmets and whether the wearing of them should be made compulsory. RoSPA position regarding this is that we strongly recommend that cyclists wear a cycle helmet, as it reduces the risk of suffering a serious head or brain injury in an accident. However, cycle helmets do not prevent crashes from happening in the first place, nor guarantee survival, but they do provide a last line of defence for the cyclist’s head. RoSPA does not support calls for compulsory cycle helmet laws because it is not clear whether such a law would discourage some people from cycling,

which, if it did, would mean losing the health and environmental benefits from cycling. If we are to make cycling safer it is vital that drivers and cyclists share the road space and that drivers have a greater appreciation of their vulnerability. Cyclists are most likely to be injured at junctions, roundabouts, where the road narrows (pinch points) and near left turning HGV. Cyclists are particularly vulnerable at junctions where drivers ‘look and fail to see’. RoSPA has a newly completed free downloadable presentation which looks at where and when cyclists are most at risk and considers what actions drivers can take to help make cycling safer. This can be found at: www.rospa.com/road-safety/resources/free/drivers/ Helmets do have a role to play, however they must be regarded as a secondary safety feature. Preventing the collision happening in the first place should be paramount. This article is focussing on adult road cycling. Children who are prone to falling off at low speed should wear a helmet. Medical research has found that most serious brain injuries are caused by rotation and there has been discussion as to how effective helmets are in preventing this. A report by TRL , found no evidence of increased risk of rotational injury when wearing a helmet. An American study from the university of Arizona, Tucson 2015 similarly found that from those who sustained traumatic brain injury after a bicycle related accident, the ones wearing helmets had a 58 percent reduced odds of severe traumatic brain injury and a 59 percent reduced odds of death. Wearing a helmet however, remains an individual’s choice. If we all play our part and look out for one another let’s strive to create an environment where ‘accidents don’t have to happen’.

The potential for cycle helmets to prevent injury - A review of the evidence, Hynd, Cuerden, Reid and Adams, TRL published report PPR446, 2009

Since the success of the Gb Cycling Team at the London Olympics and british riders at the Tour de France the popularity and profile of cycling has increased dramatically.

Cycle safety and the effectiveness of helmets

T

nick LloydRoad Safety ManagerRoSPA, birmingham

16

CyCLe HeLMeTS –FReeDOM OF CHOICe?

The MASS Insight Magazine

Tel 0117 925 9604

Vote brexit on june 23 or stay in the eu?your choice.beethoven, beatles or beyonce?your choice.Cycle helmet or no cycle helmet?your choice.

17

Cycle helmets – Freedom of Choice?

s Cycling uK, the national cycling charity formerly known as CTC, we have been promoting cycling at protecting cyclists for 138 years – and few subjects spark more debate than the wearing of helmets. It can be a divisive issue even among our 67,000 members. but we believe it should be a matter of informed personal choice and are opposed to both cycle helmet laws and even to helmet promotion campaigns that exert pressure on people to wear them. Why? because cycling has huge benefits for our health, our streets, our economy, our environment and our quality of life. The health benefits alone are enormous. Those who cycle regularly in mid-adulthood have a level of fitness equivalent to being ten years younger and have a life expectancy two years above the average. So, faced with a climate crisis and an obesity crisis, the last thing we want is to deter people from cycling, by hyping up the perception that it is “dangerous”. Report after report has shown that cycling’s health benefits far outweigh the risks involved. Cyclists in britain gain 20 years of statistical life-expectancy for every one year lost due to injuries. That 20:1 ratio would doubtless be higher still – around 50:1 – in a country like the netherlands, where cycling is a safe and normal way for people to get around, wearing normal clothes. yet even at 20:1, it would only take a tiny reduction in cycle use for helmet-laws or promotional campaigns to do more harm than good. even if those helmets could theoretically prevent every conceivable cycling injury – including non-head injuries – it would only take a

4.7% reduction in cycle use before you ended up shortening more lives than those helmets could possibly save. That’s mainly because the risks of cycling are nowhere near what most people think they are. One cyclist is killed on britain’s roads for every 27 million miles travelled by cycle. you are about as unlikely to be killed in a mile of cycling as a mile of walking. In fact, you are more likely to be injured in an hour of gardening than an hour of cycling. Do we need walking and gardening helmets? Helmet promotion campaigns and laws might not just be bad for the health of those who are deterred from cycling, but also for the safety of those cyclists who remain. How come? Well, for one thing, there is plenty of evidence that cyclists benefit from a “safety in numbers” effect: cycling is safest in places where cycle use is high. Denmark and the netherlands exemplify this – and very few people in those countries wear helmets. Conversely, where cycle use has been reduced through helmet laws, for instance in Australia and new Zealand, the remaining cyclists gained no detectable improvement in safety, and possibly even a worsening. It seems their “safety in numbers” had been eroded. Cycle helmets are, and can only be, designed to withstand linear impact forces equivalent to simply falling to the ground, i.e. an impact force of around 12mph. Moreover, by effectively increasing the size of one’s head, evidence suggests that helmets could cause serious neck or rotational-force brain injuries due to glancing blows.Other evidence also suggests that helmet

use may cause both cyclists and drivers to be a little less cautious. Overall, helmet wearers have around 14% more injuries per mile travelled than non-wearers. It isn’t clear why. Given all these uncertainties, it seems wholly inappropriate to expect the police to enforce helmet laws, especially when so many other safety-critical traffic laws – such as speed limits and mobile phone use – are routinely flouted. Cycling uK therefore believes the emphasis should be on promoting cycling as a safe, normal, aspirational and enjoyable activity, using helmet-free role-models and imagery. The goal should be more, as well as safer, cycling – maximizing the benefits of the “safety in numbers” effect. We should look to prevent injuries occurring in the first place though measures such as 20mph speed limits, better designed roads and junctions, good cyclist and driver training, tougher and better-enforced road traffic law, and tackling the threats from lorries. Some individual cyclists will doubtless continue to wear helmets. Cycling uK fully supports and respects their decisions. However, we also believe that nobody should feel any pressure to wear them, whether from Government and other public authorities, or from well-meaning friends and families. For the sake of our health, it is more important to encourage people of all ages to cycle than to make an issue of whether or not they use a helmet when doing so. For what it’s worth, the author of this article wears a helmet whenever he cycles - My choice. Let’s keep it that way.

www.mass.org.uk

Tony UpfoldCommunications and Media Officer. Cycling uK, Guildford (formerly CTC)

A

ith the development of training techniques and IT technology there are now many ways of providing training for your staff, all with their various advantages and disadvantages. no matter what size your firm is, training your staff within the normal office environment can benefit both firm and individual.

TRAInInG COST SAVInGSCost per delegate is typically lower than for public courses due to the fact that savings are made by the course provider on the venue. Consequently reasonable savings can be passed on. However in order to maximise the benefits of the training, MASS Training recommends a minimum of 8 delegates for an in house course.

TRAVeL COST SAVInGSIn addition to the savings made per delegate the firm does not have to pay travel and possibly accommodation costs to get employees to a course. As training venues are often in city centres where accommodation is at its most costly, this could save a significant amount.

MORe FOCuSeD TRAInInGRunning an in house training course generally allows the training to be a lot more focused on the specific subjects and skills that are relevant to your firm. Public scheduled courses and e-learning will often be more generic and for firms of any sector or size that attend them.

CAn uSe CuRRenT WORK eXAMPLeSTraining in house means the courses can be prepared to meet your firms individual needs using real life examples and therefore have the most effect. Delegates will be able to use their current cases or problems they are facing, as examples, that can be discussed and worked through for solutions. This method of learning can be invaluable and very effective.

COnVenIenCeOrganising legal training for a group of individuals, all with their own timetables and responsibilities, can be a very difficult task. However by having in house legal training courses in your own building it can make working around people’s schedules a lot easier. Cutting out logistical issues as well as the fact any candidates can be easily reached in case something arises that needs to be addressed quickly.

TeAM buILDInGHaving a room full of staff be it from the same or different departments and levels, can encourage team work. Often this social learning environment is where the most learning is done. This often leads to increased awareness and understanding of each other’s roles as well as staff morale. A friendly workplace is always a good thing!

MASS Training is passionate about maximising learning and development in a way that suits the individual and firms needs. Our training is unique by ensuring that all our courses involve interaction and practical skills and knowledge based learning. This we believe is the most effective method of learning and retaining knowledge. As with all of our courses, MASS members get discounted rates. Prices will differ depending on numbers and your requirements. All non-member rates are extremely competitive. For more information on our in house legal training (or any of our other training courses) please go to www.masstraining.org.uk

18 Tel 0117 925 9604

The MASS Insight Magazine

In house Legal Training for Solicitors –Is this the right option for your firm?

W

Philip CouplandMASS Training Co-ordinator

no matter what size your firm is, training your staff within the normal office environment can benefit both firm and individual

by having in house legal training courses in your own building it can make working

around people’s schedules a lot easier

MASS Matters

19www.mass.org.uk

We are constantly reviewing the benefits that we provide our members, which includes amongst others dissemination of information, discounted training courses and annual conference and quarterly magazine. With increasing our profile over the years comes a reputation for not only representing the victims of RTAs but also for the expertise of

our membership. This enables us to negotiate Discounted Schemes that can be a significant benefit for our members.

We now have quite list of arrangements with specialist companies which your firm, and your staff, can take advantage of:

Arthur j. Gallagher’s is the latest supplier to be added to the list and they are offering discounted premiums to our membership via their “new and exclusive Specialist Solicitors Office Insurance” package. To find out more just login to the Members area of our website or contact either benjamin_woodall@ajg.com or sally_gillum@ajg.com

building on these benefits we are currently looking to develop an experts Directory and we will be asking our Membership to recommend tried and tested ‘experts’ who you feel are worthy of being approached for inclusion. The experts Directory will be accessed by our membership via our website www.mass.org.uk and we are looking to deliver a ‘Gold’ standard information source of ‘trusted’ specialists.

When mentioning membership benefits we mustn’t forget to remind you of the benefits of our Annual Conference –

which members can attend at discounted prices. This year’s Conference and associated events are as follows:

AGM (MASS Members only) – Tuesday, 15th NovemberCharity Dinner – ‘Black Tie’ - Tuesday, 15th NovemberConference – Wednesday, 16th November

All three events will be at the Hilton Manchester Deansgate

With 2016 being MASS’ 25th anniversary this years conference will have a few ‘special’ additions and so put the dates in your diaries and join us to celebrate the success of the Society! booking information will be available soon.

If you would like to find out more about Membership benefits or wish to become a member, then visit our website: www.mass.org.uk or contact Jenny@mass.org.uk

MASS Matters

Celebrating our 25th year not only shows the success of our Society and the achievements that have been made but also provides a good opportunity to continue to plan for the future.

Airport Parking and Hotels with APHSpecialist Solicitors Office Insurance from ArTHUr J GALLAGHerDocument Storage with DrSMobile App Communication Tool with INCASeTelephone Conferencing with KIDATUProfessional Indemnity Insurance Scheme with LOCKTON‘rest And relaxation’ with MArrIOTT HOTeLS & COUNTry CLUBSLegal Courses with MASS TrAININGOnline Marketing with MMADIGITALFunding Solutions with NOvITAS LOANSFree Software Training with PICALCULATOrServiced Apartments with SACOAdvertising Scheme with yeLLOW PAGeS

MASS. A Society well worth being a Member of!

The MASS Insight Magazine

20 Tel 0117 925 9604

ewcastle based firm Winn Solicitors lead the above cases to victory last month to secure a decision which confirms that where a Part 36 offer is beaten at Trial, Indemnity Costs are payable rather than just fixed costs. The above Appeals were lodged due to an ongoing tension between the rules within Part 45 and Part 36 which provoked conflict between Claimant and Defendant Solicitors nationwide since the Fixed Recoverable Costs regime came into force in 2013. Whilst the Defendant accepted that where the Claimant had beaten a Part 36 offer they were entitled to costs assessed on the indemnity basis they submitted that those costs were fixed pursuant to Part 45. Conversely, the Claimants argued that indemnity costs and fixed costs were conceptually

distinct and that indemnity costs were to be awarded in such cases rather than fixed costs. The above judgment was handed down on 23 February 2016 and upheld the Claimants position that indemnity costs should be awarded rather than fixed costs. This was a unanimous decision lead by the Master of the Rolls, Lord justice Dyson and followed by Lord justice McCombe and Lord justice David Richards. This case is of huge importance to Claimant Solicitors given the implementation of the Fixed Costs Regime and the proposed extension of “Fixed Costs” to cases valued up to £250,000. It also encourages early settlement by reinforcing the need for Defendants to seriously consider Part 36 Offers made within litigation to

avoid the penalties for failure to beat these at Trial.

bACKGROunD both of the above cases were commenced under the MOj Portal for RTA Low Value Personal Injury Claims but subsequently removed from the Portal once proceedings were issued for liability/quantum. The Claimants made a number of Part 36 Offers throughout the course of each of the claims which were all rejected by the Defendants and were then subsequently beaten at Trial. The Claimants therefore argued on both cases that indemnity costs should be awarded from the date of the expiry of the Part 36 Offers on an indemnity hourly rate basis rather than Fixed Costs under the Fixed Costs Regime. However, both Trial judges at first instance refused to award the Claimants their indemnity costs pursuant to CPR 36.17(4) indicating that only Fixed Costs applied. The Claimant appealed both of the decisions. In the case of broadhurst, the Claimant made Part 36 Offers including a 75/25 and 50/50 offer on liability, both of which were rejected by the Defendant and the claim proceeded to Trial where the District judge found 100% in the Claimant’s favour. The Claimant therefore substantiality beat her own Part 36 Offers and claimed indemnity costs on an hourly rate basis from expiry of that offer. The first appeal in the case of broadhurst v Tan was heard before His Honour judge Robinson at Sheffield County Court on 28th August 2015. HHj Robinson accepted that the provisions of CPR 36.17(4) applied to a case which was brought pursuant to Section IIIA of Part 45 however he accepted the Defendant’s submission on this issue and held that whilst the Claimant

n

Broadhurst v Tan [2016] eWCA Civ 94Smith v Taylor [2016] eWCA Civ 94

Ghazala bashey of Winn Solicitors, newcastle, reports on the Court of Appeal landmark ruling

relating to the interaction between Part 36 and Fixed Recoverable Costs.

PArT 36 PrevAILSOver FIXeD COSTS

In the case of broadhurst, the Claimant made Part 36 Offers including a 75/25 and 50/50 offer on liability, both of which were

rejected by the Defendant and the claim proceeded to Trial where the District judge

found 100% in the Claimant’s favour

21

Part 36 Prevails Over Fixed Costs

www.mass.org.uk

was entitled to an award of costs on the indemnity basis, the amount of such costs was nonetheless fixed by Section IIIA of Part 45 as this was the overriding effect of CPR 45.29b. In the case of Smith v Taylor, the Claimant made three Part 36 Offers and successfully beat two of these offers at Trial thereby claiming entitlement to indemnity costs as above. The first appeal in the case of Smith v Taylor was heard before His Honour judge Freedman at newcastle County Court on 9th november 2015. HHj Freedman awarded in favour of the Claimant and found that costs under the Fixed Costs Regime and costs on the Indemnity basis could not and should not be construed as being one and the same: they were separate and distinct and required a completely different approach when costs were being assessed. both of these cases were then subject to second Appeals by the Claimant and Defendant respectively.

THe ARGuMenTThe cases were expedited by the Court of Appeal following an application made by Winn Solicitors, on behalf of the Claimants given the important point of principle and the conflicting views of judiciary upon the issue of the interplay between the rules that required clarity. The argument brought by Horwich Farrelly Solicitors on behalf of the Defendant was that only Fixed Costs should be awarded pursuant to CPR 45.29b. Defendant Counsel, james Laughland argued that although CPR 36.17(4) applied, in Fixed Cost cases

there was no difference between costs assessed on an indemnity basis and the Fixed Costs provided in Table 6b of rule 45.29C. by way of counter argument

ben Williams QC on behalf of the Claimants submitted that indemnity costs, as well as fixed costs, were warranted in such circumstances, and any other future cases, in accordance with CPR 36.17(4). He submitted that any tension between CPR 45.29b and CPR 36.21A was resolved by the general provisions yielded to specific provisions pursuant to Solomon v Cromwell. Furthermore, it was contended that CPR 36.1 was a self contained procedural code: that CPR 36.21 was intended to prevail over CPR 45.29b and that Fixed Costs and assessed costs are conceptually distinct.

juDGMenTLord justice Dyson stated that “CPR45.29b does not stand alone and the need to take account of Part 36 Offers in Section IIIA cases was recognised by the Draftsman of the rules, as CPR 36.21 (was CPR 36.14A) is headed ‘Costs consequences following judgment where Section IIIA of Part 45 applies’”(emphasis added).He said: “I do not consider that there is any doubt as to the true meaning of these rules. The tension is clearly resolved in favour of rule 36.14A”.Outlined in the judgment, he further stated: “The starting point is that fixed costs and assessed costs are conceptually different. Fixed costs are awarded whether or not they were incurred, and whether or not they represent reasonable or proportionate compensation for the effort actually expended. On the other hand, assessed costs reflect the work actually done. The court examines whether the costs were incurred, and then asks whether they were incurred reasonably and (on the standard basis) proportionately”. “Where a claimant makes a successful

“I do not consider that there is any doubt as to the true meaning of these rules. The tension is

clearly resolved in favour of rule 36.14A”

The MASS Insight Magazine

22 Tel 0117 925 9604

Part 36 offer in a Section IIIA case, he will be awarded fixed costs to the last staging point provided by rule 45.29C and Table 6b. He will then be awarded costs to be assessed on the indemnity basis in addition from the date that the offer became effective. This does not require any apportionment. It will, however, lead to a generous outcome for the claimant. I do not regard this outcome as so surprising or so unfair to the defendant that it requires the court to equate fixed costs with costs assessed on the indemnity basis. As Mr Williams says, a generous outcome in such circumstances is consistent with rule 36.14(3) as a whole and its policy of providing claimants with generous incentives to make offers, and defendants with countervailing incentives to accept them”(emphasis added). The Claimants appeal in the case of broadhurst v Tan was therefore allowed and the Defendants appeal in the case of Taylor v Smith was subsequently dismissed.

THe IMPACT FOR CLAIMAnT SOLICITORSThis judgment is a significant triumph for all Claimant Solicitors given the Government’s introduction of Fixed Fees in 2013 and recent proposals to extend this to cases worth up to £250,000 mooted to take effect by next year. The decision clearly encourages the parties to settle cases early but also provides the Claimants with all of the benefits of Part 36 if they are forced to proceed to Trial

when reasonable offers have been rejected by the Defendant. This supports Lord justice jackson’s reported recommendations to incentivise parties to make and accept reasonable Part 36 Offers. As a result of the judgment, instead of receiving only the fixed costs to trial which in an RTA are typically £2,655.00, the Claimant is entitled to claim costs on an hourly rate on an indemnity basis from expiry of the relevant Part 36 offer. The latter will be likely to be considerably more than the fixed costs and this should therefore incentivise Defendants to consider reasonable offers rather than incurring the extra costs of proceeding to trial and risking indemnity costs. Ghazala bashey, Legal Director at Winn Solicitors, said: “This is a tremendous result for the firm and all Claimant Solicitors who will significantly benefit now and in the future as a result of our commitment, dedication and courage in taking these cases to the Court of Appeal. It is a just decision which provides the incentive to parties to settle cases early and avoid trial costs, thereby saving Court time and resources.”

Costs Lawyer and Manager of the Winn’s Costs Team Rachel Allen said: “It is an amazing achievement for Winn’s Costs team to be at the forefront of such a landmark case and one that is a huge success for all Claimant Solicitors.”

This is a tremendous result for the firm and all Claimant Solicitors who will significantly benefit now and in the

future as a result of our commitment, dedication and courage in taking these

cases to the Court of Appeal

As a result of the judgment, instead of receiving only the fixed costs to trial which in an RTA are typically £2,655.00, the Claimant is entitled to claim costs on an hourly rate on an indemnity basis from expiry of the relevant Part 36 offer

Case Watch

23www.mass.org.uk

Case Watch

Following this recent High Court decision, the court heard that it was reasonable to allow the full fast track trial fee in a case which had settled on the morning of a trial. At first instance, the Recorder refused to allow the fixed fee on the basis that it settled before a final contested hearing had commenced.

However, Coulson j overturned this decision and on considering the facts and that counsel for both parties had already asked for more time before the start of the trial to try and reach a settlement, he found that the full fee was recoverable. This is yet another technical challenge placed on the transition of the fixed fees within CPR 45.29C and demonstrates that there are still attempts being made to reduce fees to that of the lower recoverable amounts.

it was not a claim for “damages for personal injury” but a claim under the specifics of this MIb scheme.

Leaving the debate open to continue, Stewart j stated “Whether the non-applicability of the QOCS regime offends the principles of equivalence and effectiveness is not for me to determine. This requires a wide-ranging and careful analysis.”

Mendes v Hochtief (uK) Construction [2016] eWHC 976 (Qb) – recovery of fixed fast track trial costs where settlement is reached prior to hearing commencing

A claimant was recently awarded full costs on her case despite that fact that she lost on one issue at trial. The case involved alleged negligence by the Trust which resulted in spinal injuries suffered at birth. The claimant had pleaded two main allegations and on one of which she was unsuccessful.

On the issue of costs at first instance, HHj Saffmann ruled that the costs of the Midwifery expert should be deducted as well as 25% of the total overall costs on the basis of an issue based costs order which he believed was proportionate to the outcome of the case.

On appeal the court heard how the Claimant had made a good Part 36 offer which was more favorable to the Defendant than the outcome and this was a factor when deciding that costs would be allowed on a 100% basis, overturning the original decision.

The High Court have recently decided that a claimant did not enjoy the protection of qualified one-way costs shifting (QOCS) in a claim following an accident in France against the MIb.

Whilst the claimant had suffered personal injury, and the rule under CPR 44.13 is quite clear that QOCS applies to this category of cases, the court found that this case did not. The case was brought under regulation 13(1) of The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation board) Regulations 2003. It was decided that

Webb -v-Liverpool Women’s nHS Foundation Trust [2016] eWCA Civ 365 – 100% costs order despite claimant losing one issue at trial

Howe v Motor Insurers’ bureau [2016] eWHC 884 (Qb) – QOCS application and the MIb

MOTOR ACCIDenT SOLICITORS SOCIeTywww.mass.org.uk 19-20 St Augustines Parade, bristol bS1 4uLTelephone 0117 925 9604email enquiries@mass.org.ukDX 78156 bristol

MOTOR ACCIDENTSSOLICITORS SOCIETY

M SS