Responsibility & Liability - Access to Justice

I was the plaintiff in a trial in the Crown Court on Monday. It related to the accidental injury I suffered three & a half years ago. I walked into a metal bicycle rack overhanging more than half of the pavement at head height. I lay on the pavement, unconcious, for an hour before I was found. I was concussed & still can't remember anything about the day until late evening in hospital. I also fell badly & injured my shoulder & arm - Rotator cuff damage.

I thought the whole thing was black & white. The car shouldn't have been parked with the bike rack causing an obvious danger to pedestrians. It was negligent & an accident was forseeable. 

Well no - Although I won it was a hollow victory. The defendant wasn't present & gave no statement. I wanted her to hear the impact the accident had on me & take responsibility for what she had done. 

The disclosure bundles, 2 massive ring files of 1,004 A4 pages, took days to go through, make notes on, highlight & label. I was lucky, I had hard copy. Everyone else had to use the electronic version. The case was heard via computer link, not actually in Court. I have to say that panicked me when I heard. It wasn't as bad as I imagined, but there was no opportunity to pass notes or speak to my barrister during the hearing.

I felt I was on trial.The Insurers stance had been very aggressive, accusing me of dishonesty, (which the defence barrister frequently said he wasn't doing, which I found quite patronising), exaggerating the injuries, negligence & nuisance. Also the Insurers denied that the bike rack actually caused the injuries. They actually hired private investigators, who found nothing.

The Insurers refused mediation or the offer of early settlement. When I was a magistrate we were advised that if this happened in trials we should take a view on the possible waste of Court time. The stance of the Insurers caused additional unnecessary stress to me, but the barrister was very clever & didn't give me any openings. He asked closed questions, so I couldn't elaborate on anything or put it into context. I just had to say "yes" to most of his questions.

My case was unusual because I have several chronic conditions which cause pain & fatigue. This resulted in it being difficult to prove that the concussion & rotator cuff injuries lasted a really long time. 18 months in the case of the shoulder & arm injury. That made a difference to the damages which were awarded. The very expensive independent Consultant I had to hire to write a medical report carried little or no weight because he didn't see me untill I after had recovered from the injuries. The defence & Judge thought that his report was largely my recollection of what happened. Plus there were several factual inaccuracies despite the fact that I had had to ask for him to correct the original one.

The Judge said there was "no issue about the bike rack - it was socially unacceptable, a hazard, below the duty of care, an accident was foreseeable, no H&S precautions were taken - therefore it was negligent". Then she said that I had equal duty of care to see & avoid it. Accidents happen because, for whatever reason, people don't see hazards. So this doesn't seem logical to me. No one deliberately walks into a metal hazard.

Then she said that it was clear that the injuries were caused by the bike rack, but only allowed that they lasted for 6 months not 18, despite the medical evidence to the contrary.

 

The case has cost me quite a lot of money despite the fact that my solicitor & barrister acted for me with a Conditional Fee Arrangement & I had legal insurance with Saga, which I hope will pay up.  I am truly grateful for all the time & effort my legal team put into this. I probably won't get all my costs back. But at least I did win & don't have to pay the thousands of pounds for the defence legal team. My relatively small compensation was halved because the judge said I was equally responsible for the accident. At the end of the day I hope not to be out of pocket.

I brought this case for 2 reasons. I don't think the defendant behaved well in causing an accident & afterwards & I wanted her to face up to her carelessness & lack of empathy. 

 

But also I am really fed up with the many hazards pedestrians have to cope with when walking the streets of Oxford & probably most cities, towns & villages in the UK. We are lowest in the pecking order of users of pavements & highways. I perennially walk looking down because of uneven footpaths, especially lowered kerbs in front of driveways, broken paving, obstacles on the pavement, etc etc. I do make huge efforts to be aware of what is around me for my own safety - overhanging trees & shrubs, wheelie bins, vehicles parked on the pavement, street furniture..... But hardly any of the hazards are metal, at head height, in the middle of the pavement & completely unexpected.

So that is why I feel justice wasn't done in my case. I can't accept that I was equally as negligent as the vehicle owner who parked so thoughtlessly & inappropriately. 

I could afford to take the risk financially & because I'm retired I was able to give a considerable amount of time over several years. Most people couldn't do that. 

So I don't feel that our adversarial & very expensive Justice system gives everyone an equal access to real justice.