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.

 

 

Accidental Injury - 2

It's 11 weeks since my accident. I'm more or less back to what passes for normal. My left arm is still painful when I try to do some specific movements like taking a top off, but I'm back to swimming half a mile 4-5 times a week & can do back crawl now.

I still can't remember anything at all about the day of the accident until late evening when they were going to discharge me into the care of my daughter. (She says I was still doo-lally then!) I do think my memory generally is worse than it was. Before if I forgot a word it would generally come back to me fairly quickly. For example, yesterday I tried to think what Naan bread was called all afternoon. It finally came to me watching TV in the evening. The data is there - it's the recall that's the problem.

Finally, 11 weeks after the accident & over 9 weeks after I first contacted them, Saga's legal insurance underwriters have made a decision about allowing me to sue the car owner using my local solicitor. She can go ahead & pursue the matter with a good chance of success. I don't have to use the insurance panel solicitors in Bristol. Thank goodness.

It is completely beyond me why making a fairly simple binary decision has taken so long. It has needlessly increased the amount of time I have had to spend chasing them & added to the uncertainty & stress.

Oddly I feel sorry for the car owner, because I imagine she will have assumed that I have dropped the matter. This may come as a bit of a shock.

A Month is a Long Time

My accident was a month ago today. I still have no memory of the day at all until late evening in the JR hospital. The general consensus is that it may be a good thing, but I would like to know. My impression is that my memory generally is worse than it was.

The facial bruising & swelling has gone, but I still have a tender vertical ridge, (of bone?), up my forhead from the bridge of my nose. I wake with a generalised headache some mornings, but it goes once I get up. I also get headaches when I'm tired, but nothing like as bad as after the accident.

The main problem is my left arm & shoulder & my neck. Movement is better, but is still limited & painful even though I'm taking quite strong painkillers. Dressing & undressing, showering & washing my hair, driving..... all the day to day things you take for granted are difficult. I still can't do back crawl, only breast stroke & sculling on my back, but at least I can swim - UPDATE I did a few lengths of back crawl today - really pleased. The pain is worth the gain. I don't want permanent reduced range of movement & am assuming that exercise will lengthen the tendons / ligaments. 

I am trying to be positive & not let all this dominate my life. I have so many things to be thankful for. I am annoyed though, that someone else's thoughtlessness, which was so utterly predictably dangerous, has caused me so much pain & affected my life so much. If this was just an accident, like falling down the stairs, it would be different. This shouldn't have happened.

On the other hand, that's life. It's unpredictable & sometimes unfair. We shouldn't take the good stuff for granted. Carpe Diem because we don't know how many Diem's we are going to have.

Lawyers & Legal Insurance

I consulted a solicitor who specialises in accidental injury 11 days after my accident.She was really helpful & competent & was very confident that there is definitely good case to answer.

I have the photographs my daughter took on the day of the accident & of my battered face the day after, plus a detailed statement from her perspective. My Blog is a record of the impact on me physically & on my life. I have a statement from D, who is a physical trainer, so has First Aid & H&S skills. I also have a statement form J who found me. There are medical records at the JR hospital & my GP's.

The whole thing is very complicated. The claim has to be registered in something called a Portal. This stage can take 40 days. All parties then decide what their response to the evidence will be. Hopefully, at this point the other side will accept liability & if they do there are guidelines for General & Special damages which have to be agreed.

If they don't accept liability the case goes to Court. Then I may have to have medicals with possibly 2 consultants because there are head injuries & shoulder/arm injuries. The prognosis for any permanent, future, neurological/orthopaedic repercussions will have to be assessed. That could involve a year's wait.

The real b..... is my Legal Insurance with Saga. Apparently it isn't what I assumed 5* Insurance meant - Why am I not surprised? Initially I have to use their Panel Solicitors, Lyons Davidson. Everything would have to be done over the phone or by email because their nearest offices are in Bristol. My solicitor is 5 minutes walk away. I can actually speak to her face to face, which is very important to me.

When I purchased Legal cover I had no idea it was so restricted. I am a 72 year old widow. This accident has affected me physically & mentally. Recovery is very slow. I only started resuming my normal activities after a fortnight. I would find dealing with everything with Lyons Davidsons even more stressful than they already are. I don't think it is reasonable to expect me to deal with all of this remotely. I also think it is unreasonable to expect me to deal with the Portal part of the suit with a different solicitor to the Court section. It would cause disruption & needless repetition, putting much more stress on me. Coping with the accident & injuries is bad enough. This is just making it all worse at a time when I'm really not feeling wonderful.

I've contacted Saga & asked them to re-consider & allow me to use my solicitor - I won't hold my breath. In my experience Insurers are really good at avoiding fulfilling the expectations of the insured. The small print is so lengthy & so small that everyone knows no one reads it or understands it. The law is a closed shop for Lawyers, us mere mortals really can't grasp the intricacies.

Insurance & the Law is meant to protect us - Personally I'm not convinced it does. It just costs a lot in stress, time & cash.

PS - 28th April
6 weeks / 42 days after my initial contact with Saga about my legal cover I still have no clear answer from them  about whether they will let me use my local solicitor. Why on earth does it take so long for a fairly simple decision. All through I have been emailing to try to progress the request & get a decision. If their unreasonable delay means that my case runs outside the timescale for the Portal stage I am going to be a very angry customer.

Returning to Normal

Two weeks on from the accident I'm taking stock.

I'm going back to my volunteering jobs this week, really pleased not to be letting people down. I'm swimming, still only breast stroke & sculling on my back. Still very slow & less lengths, but it is helping I'm sure, & I always see friends there. I'm back on Warfarin now, so my INR should get back to normal. Resuming my Psychology course too.

Just as well things are improving because I am due to go to a school reunion at the weekend & then to Seville for a mini break next week.

I have a discernable raised ridge from the bridge of my nose up my forhead which is tender to touch. I'm not getting the bad headaches, just slight aching at times, but my brain feels odd - fuzzy - I'm not confident in my memory. Still no recollection of Monday the 6th until the evening. My left elbow is also tender. My left arm & shoulder & my neck are the most painful ongoing issues.

I'm seeing my Osteopath on Wednesday, so it will be interesting to see what she makes of the injuries.

The body has amazing powers of recuperation - I just need to give it time. Time is at a premium at my age though & I try to make the most of it. This last fortnight has been stolen from me. But on the plus side friends have been lovely - very concerned & supportive.

Fully Functioning?

We humans take so much for granted. We have the most unbelievable bodies & brain. A complex system which can never be matched by a machine, however intelligent & complex. It isn't until something goes wrong that we realise just how reliant we are on it all working properly.

My brain definitely isn't. 10 days on from the accident & concussion I still can't remember almost all of Monday 6th.The swelling has gone. The black & blue Panda eyes are back to normal. I'm optimistic I won't have a permanent vertical scar line down my forhead & nose.

I am nervous about walking about outside. I've lost my confidence & I'm concerned I won't see something & will have an accident. I've morphed from a hare into a tortoise. In short I've become an old lady overnight. I've become obsessive about writing things down. We all have memory lapses as we get older. We all set off to do something & forget what it was & have to re-trace our steps. That's normal. This is different. Unless I write things down I won't remember. I can almost feel a thought drifting away. I try to grasp it but it has gone like a butterfly. Sometimes it comes back, but not always eg Naan bread - could not remember what it is called!

The x Rays yesterday confirmed that my shoulder isn't broken. But I struggle to use my left arm. Showering, washing my hair, dressing & undressing is difficult. I can't drive yet because I can't change gear. My neck & back is painful too. I know I just have to give it all time. Older people just don't recover as quickly as the young. At least I'm a more patient patient now I'm older & accept what I can't change. Thank God for strong Co-Codamol.

On the plus side I went swimming for the first time today. The GP said to try if the arm wasn't broken. I can do breast stroke & scull on my back. I can't do my normal back crawl though. It was just really nice to get out of the house & meet people I know at the pool.

Claims & the Law

Today I contacted the car owners insurers. I had asked if she had informed them & the police about the accident. She said she had - The police weren't interested & there was a claim number for the insurers. It turns out that she only notified them yesterday after my email query.

I got put through to Admiral's underwriters who have to assess my claim. They took the details & will get back to me. There may be a point when I need to get a lawyer who specialises in accidental injury, but I'd rather avoid that if I can. In my voluntary experience as a Magistrate for many years & then a trained Mediator, the Law just complicates matters because our system is so adversarial.

What's happened has happened. Nothing can change it.

I don't think I have recovered from the concussion yet. My memory of Monday shows no sign of returning. The facial bruising is much better though. My left arm, shoulder & neck is still very painful & movement is limited. I'm seeing my GP today.

The thing is, given that the car owner has admitted that she caused the accident beause the car shouldn't have been parked with the cycle rack jutting out so far onto the pavement, you would think that all of this could be settled fairly simply. I'm not holding my breath though. Insurers aren't known for paying out without a fight.

I am the one who has to acept all the repercussions from this accident, now & possibly in the future. I feel that Justice is on my side, but am old enough to know that doesn't mean that the Law will be.

PS
Well, sadly I was right. Admiralty Insurers have just phoned to say that they do not accept liability for this accident. They say because the car was unattended & stationary it was there to be seen. So the only relevant factor is I should have seen the cycle rack.

I really wish I could remember what happened, was I distracted, was I looking down at the pavement, which is most likely given the hazards on the pavements in Oxford? It seems that pedestrians should adopt a search & destroy stance, constantly on the look out for hazards in their way at whatever level. At least I could prove that I wasn't on my mobile phone, which I imagine is what the insurers might assume.

Now I have to decide whether to take it to a lawyer. Admiral would prefer to go to court. Is it too cynical to think that's because most plaintiffs would not want to endure that stress, hassle & cost?

PPS
Visited my GP. Have to go and have more X rays on the arm, shoulder, neck & back. Life isn't fair.

Slow road to Recovery

Today I walked to the surgery for a Warfarin blood test because I was told not to take it after the head injury. Very slow progress & tired out when I got there. I arrived 2 hours early for the appointment, despite a calendar, diary & weekly wall chart with the right time on! The nurse was surprised I hadn't been referred to a trauma clinic. Seeing my GP tomorrow.

It's a lovely day but I haven't got the energy to do anything. I've cancelled my volunteering again this week. I see no prospect of being able to resume swimming, given that I can't raise my left arm & it's quite painful. I have to raise the arm using my right hand. Dressing & showering is difficult.  I'm normally very active, so enforced inaction is very frustrating. On the other hand everything is too much effort.

Today it all hit me & I feel very sorry for myself. Up till now I've been more focussed on the pain & just getting through each day. I am so cross that my life has been impacted so much by someone else's thoughtlessness. I've been trying to find out exactly what happened last Monday from witnesses. It now seems possible I might have been lying unconcious for an hour or so before I was found.

The irony of the fact that I have had an accidental head injury is not lost on me, given how my husband died. Had my INR been high, (it has been 9.7) the consequences of this would have been really bad.

Impact

Obviously there is the impact of the collision with unyielding metal on my head. I'm waking up with an awful headache every morning. Being vertical does seem to make it recede eventually. Yesterday I had two episodes of flashing lights which are usually the precursor to a migraine. My shoulder is still painful & really limits what I can do. I'm trying not to take too many pain killers, but can only get some sleep at night if I do.

The other impact is on my life. Now, after almost a week, I am really fed up with being confined to the house seeing no one. Normally my life is quite busy. I swim 4 or 5 times a week & usually see friends at the pool. I volunteer at the community centre once or twice a week. I'm a volunteer usher at the theatre most weeks. I am doing a Psychology course in a group. I normally go out of the house at least once every day & would usually meet people I know. I need to go into Oxford to do a couple of things, but don't feel fit enough to face that yet.

If I am ill or have hurt myself, although it's not necessarily my fault, I can accept it. I am, after all, used to years of coping with chronic conditions & pain. This is different. This has happened to me through no fault of my own, but because someone else did something thoughtless or even negligent which put pedestrians at risk. I still don't understand why I didn't see the cycle rack - was I distracted by something? I know I tend to look down at the pavement when I'm walking because the pavements in Oxford are so full of pitfalls for pedestrians & I don't want to trip up - How ironic is that?

The big consolation is my friends who have read my Blog. So many have emailed or phoned to commiserate & see how I am. Without exception they have encouraged me to take this further, either report it to the police or get legal advice or both. Their support is wonderful & much appreciated.

So some good does come out of adversity.

Accidental Injury

Day 5
Today was a milestone - I was able to wash my hair. It's not easy when you can't raise one arm, but if I bent over the sink I didn't have to. Probably only another woman would appreciate how much better that made me feel. Fortunately I have been able to shower having had a wet room ensuite installed last year. Getting going in the morning seems to take ages.

The bloody scabs on my face  are starting to peel off. I'm trying not to knock them because I don't really want a permanent vertical scar line down my forhead & nose! My eye sockets are changing colour. The black / purple is changing to a delightful mix of green, yellow & red - very Lucien Freud. I've had two bouts of flashing lights today. I used to have dreadful migraines, but now I just tend to get the visual disturbance - Not twice in a day before though.

Which Legal responded to say that they don't give advice on accidental injury, but I should contact a solicitor. In my experience the Law & Lawyers just complicate matters & are extremely expensive. It's not the course of action I would chose. However the consensus of my friends seems to be that I should, so I have contacted 2 local law firms who have specialists in the field.

It's all such a b..... nuisance. Not what I want to be spending my time doing. I just think I have to consider the possible repercussions of a head injury.

Concussion Repercussions.

4 days on from the head injury - still can't remember anything about Monday. But the swelling has gone down considerably & the pain is significantly reduced, so I only have to take pain killers at night to be able to sleep. The range of movement in the shoulder is very limited, so I have to help the arm to move with the other hand - dressing & showering is difficult. I couldn't drive. Not only because of the concussion, but also because I couldn't change gear.

I tried walking into Summertown this morning to get some pills & food - Extremely slow. My legs feel like lead & I was tired out when I got back. Resuming swimming obviously isn't going to happen any time soon. My whole life has been halted.

On the way I went into the Wine Cafe to thank I, who apparently found me. She wasn't there, but the owner of the car, R, was, so I have got her details. Obviously she came face to face with my injuries, but she didn't ask how I was, what had happened at the hospital, what treatment I've had / will need. Nothing. Nada. Rien. She did accept that the car shouldn't have been parked as it was, but no apology or concern whatsoever.

Yesterday friends said the accident should be reported & I should take this further because there could possibly be long term effects given my age & the injury. (Wish I knew a lawyer). I am a member of Which Legal so have sent them an email to ask advice.

Suing wouldn't be my natural course of action. The woman was moving into a flat above the Wine Cafe, I think it must be a new job. She was rushing because she was late for her shift. We can all make mistakes. Accidents happen. I just find her attitude to the pain, disruption & cost of all this to me & everyone involved quite unbelievable. She was happy to give me her insurance details & seems to think that's the extent of her responsibility.

Maybe it's an age thing.

Accidents - Concussion & Dementia!

My lovely daughter M has had a taster of the senile me! I had an accident on Monday afternoon walking to one of my volunteer jobs. I was knocked out & badly concussed. So much so that I can't remember any of Monday at all.

Some North Oxford idiot, in a big 4WD, had parked their car so that a huge cycle rack on the back protruded out over most of the pavement & I walked right into it. I have no idea why or how because of the memory loss. Someone found me on the floor & somehow called M & the ambulance. A kind person, I, brought a chair out for me to sit on. When the ambulance didn't arrive, a Good Samaritan, J, took us to hospital in his car.

M is obviously going to be excellent at dealing with someone with no short term memory because I apparently amused the occupants of A&E enormously repeating things over & over. I also had no inhibitions & pointed out things about other people in a loud voice - For example how silly it was not to do up your shoe laces because you might trip up. (I doubt M found it funny after several hours & I imagine it's quite surprising someone didn't take exception to me & add to the facial bruises!)

Apparently I was triaged, had scans, xrays, blood tests etc. But none of it registered. The result is no broken shoulder or nose, but a face like a prize fighter's after coming out the worst from a boxing bout.

We eventually got home late in the evening. M had been told I had to be watched for 24 hrs. My lovely grandsons couldn't hide their shock when they saw me the next morning.

It's not appropriate to go into all the circumstances here, but it is interesting that the person whose car it was, & definitely knew what had happened as a result of their poor & probably illegal parking, didn't have the grace to ask how I was or apologise. Instead she apparently left a very jolly message on M's answerphone, which incensed M quite reasonably.

The thing about this story is that one thoughtless person has caused all the people involved so much time, cost & trouble. The cost to the NHS must be considerable & there might be long term consequences as I'm in my 70's. The people who helped me really put themselves out & were kind & considerate. M had to leave her teaching job & spend hours in A&E & then come home to check on me the next day. She is very capable, but it must all have been very stressful & worrying.

I have been in quite considerable pain for 2 days. As well as the facial / head / shoulder injuries all my leg & arm muscles hurt because I must have fallen quite heavily. In effect I have lost a complete day of my life & may never recover it. I never turned up for two appointments on Monday & have had to cancel everything since. I'm not sure when I will be fit enough to resume my life.

I'm trying to keep a balance between the many people who were kind & helped me & the one person who is responsible for all this but doesn't seem capable of accepting that responsibility. An enquiry how I am & an apology doesn't seem too much to ask.

Not sure where I will go from here. Accidents happen, but this was an accident waiting to happen.

PS

Someone who was blind or partially sighted would stand no chance. Equally if the weather was bad & you had a hood up, or very bright sun. I think the point is that it was predictable that the obstruction might cause an accident.