News Category 3
Summary of Recent Cases, November 2019
15/11/19. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Samantha Mustard v (1) Jamie Flower (2) Stephen Flower (3) Direct Line Insurance [2019] EWHC 2623 (QB)
The claim arose from a road traffic accident in which the Claimant's stationary vehicle was struck from behind by the Defendant's vehicle. As a result of the accident, the Claimant claimed to have sustained a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury, leaving her with a cognitive deficit. She had a complex pre-accident medical history. Whilst liability was admitted, the severity of the impact was in dispute, the Defendant arguing that it was a relatively minor collision, whereas the Claimant maintained that it was at least a medium velocity impact. The Defendant's experts were of the view that the Claimant had...
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PI firms ignoring clients who contact them after 5.30pm or via Facebook - Qamar Anwar, Managing Director, FIRST4LAWYERS
25/10/19. Personal injury (PI) law firms are failing to adapt to clients using less traditional methods of contacting them by not responding when clients call them out-of-hours or via Facebook, according to our latest mystery shopping research.
Two-thirds of shoppers who called firms after office hours and left a message did not receive a call back, while a third of shoppers who tried to contact firms via their Facebook pages did not receive a reply.
The research, Creating a customer-first culture – conducted by customer experience specialist Insight6 – saw mystery shoppers contact 52 PI firms by telephone during the working day and also between 5.30pm and 7.45pm, as well as via their Facebook pages, and rank their experience of the contact and efforts to convert them into clients.
Nearly a quarter (24%) of out-of-hours callers managed to speak to someone when they called, while a further 56% were able to leave an answerphone message. However, there was no facility for 18% to do so. One firm’s answerphone was full and couldn't take any more messages.
Unsurprisingly, only 8% of callers actually managed to speak to a fee-earner/expert when they called, while a similar number received a call back that same evening. But a staggering 67% didn’t hear from that firm within two working days – the latest we allowed for in the research.
The findings indicate that many firms are approaching Facebook well:
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64% of our shoppers said they had either a ‘very positive’ or ‘positive’ impression of the firm based on the Facebook page alone;
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When they sent a message via Facebook, the best firms (12%) responded online within 15 minutes, while 32% did so within a very respectable two hours;
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A further 14% replied the same or following day;
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At the other end of the scale, 32% did not reply at all.
These figures exclude automated responses.
For the calls made during the working day, all the shoppers said the phone was answered with a “genuine welcome” and almost all said their enquiry dealt with in a “polite and enthusiastic manner”.
Where the call handler could not put the call through to a fee-earner, 83% asked for contact details for a call-back, but only a third were given an idea of when the call-back would take place. Both figures, particularly the latter one, are notably lower than the similar research we carried out last year. And of this group, more than half did not receive a call-back at all.
The good news is that the people dealing with the substance of the call – either fee-earners or well-trained call-centre staff – generally scored well. But where they were not so good was in ‘selling’ the service. Two-thirds explained how the firm could help and just 56% outlined the cost structure of the claim, while only 44% actually outlined the benefits of using their firm.
And just as we found last year, law firms are failing to follow up – they give the information and then leave it at that. Only 30% of call handlers offered to send any further information (albeit this was nearly three times the number last year) – while a mere one in five said they would make a follow-up call. And of those, just a third actually did.
Next year’s Civil Liability Act reforms will change the PI market in a way not seen for a generation. The old ways of practicing are over. For firms to survive and thrive in the new world, they cannot afford to sit and wait for the business to come to them – they need to do everything they can to attract and convert clients.
While this year’s results have not found any serious deterioration in the way firms deal with standard incoming telephone enquiries during the working day – nor any notable improvement, it should be said – they do give cause for concern for how they cope with non-standard enquiries. And calls after 5.30pm and contact via Facebook are not really ‘non-standard’ in 2019.
The good news about the bad news is that this is an opportunity. Standing out in a competitive market where there are areas of significant underperformance and industry challenges could bring major rewards very quickly. None of the issues we have identified in this report are especially difficult to resolve – they just need commitment and some investment.
The white paper is available at https://jointhepanel.first4lawyers.com/news-and-research/white-papers/
Qamar Anwar
Managing Director
FIRST4LAWYERS
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Case Summary: W v Burns - Kristy Price, Spencers Solicitors
23/10//19. Case Name : W v Burns
Accident Date : 24/02/2017
Settlement Date : 30/04/2019
TOTAL GROSS SETTLEMENT : £3955.80
Background
The Claimant was involved in a previous road traffic accident back in 2015 and the Claimant also suffered with pre-existing multiple sclerosis.
Immediately after the accident, the Claimant suffered with severe symptoms to his head, neck and lower back causing a restricted range of movement. These symptoms improved over time. The Claimant also suffered with severe driver anxiety including nervousness and being over-cautious. Driving also exacerbated his symptoms.
The Claimant saw his GP and received 5 sessions of physiotherapy.
The medical expert, for the purpose of a medico-legal report, confirmed that the Claimant had suffered from an exacerbation of pre-existing symptoms which had increased in severity. He had pre-existing symptoms of headaches, neck pain and stiffness with radiating pain to the shoulders, acute low back pain, tingling in the arms and worsening of pre-existing MS.
The Claimant did not take any time from work; however, he was restricted in his work, as well as housework, lifting and sleep.
The Claimant's neck and back symptoms reduced to their pre-accident level within four months of the date of the accident.
Liability
The Claimant was the driver of a motor vehicle sat at traffic lights. The lights changed to green and the Claimant began to proceed. The Claimant saw an emergency police car approaching from the left, so he stopped. The Defendant, who was travelling behind our client however, failed to stop and collided with the rear of the Claimant's vehicle.
Liability was admitted by the Defendant's insurers.
Quantum
Global settlement in the sum of £3955.80
PSLA £3850.00
Special damages £105.80
Solicitors for the Claimant
:
Kristy Price of Spencers Solicitors Limited
Insurers for the Defendant
:
Sedgwick International UK
Image cc flickr.com/photos/didbygraham/219375981/
Package Travel Claims: Where Are We Now? - Katherine Allen, Hugh James
21/10/19. In April 2018 regulations[1] implementing Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements (PTD 2015) were published. These came into effect on 1 July 2018. The Directive acknowledges that since the first Package Travel Directive was adopted in 1990 (PTD 1990), implemented in the UK in the form of the 1992 Package Travel Regulations (PTR 1992), the holiday market has undergone considerable changes and holidays were no longer purchased in the same way. Many combinations of travel services sold as a result were either clearly not covered by PTD 1990 or fell into a legal “grey zone”, creating uncertainly about the status of the holiday purchased.
So what has changed under the 2018 Regulations (PTR 2018)?
Wider Definition of the Term “Package”
Regulation 2(5) defines “package” in much wider terms than its predecessor. A “package” has to be a combination of two different types of travel service for the purpose of the same trip or holiday.
“Travel service” is defined in Regulation 2(1) as:
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the carriage of passengers;
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the provision of accommodation which is not intrinsically part of the carriage of passengers and is not for residential purposes;
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the rental of cars and other motor vehicles subject to some qualifications;
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any other tourist service not intrinsically part of a travel service within the meaning of points (a), (b) or (c)”
As well as the traditional pre-arranged package holiday (usually consisting of a flight and accommodation purchased from one tour operator at the same time), the definition in Regulation 2(5) now also covers a holiday where separate contracts for travel services are concluded with individual travel service providers provided they are either:
(1) purchased from a single point of sale and selected before the traveller agrees to pay;
(2) offered, sold or charged at a total price as well as an inclusive price;
(3) advertised under the term “package” or a similar term;
(4) combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services; or
(5) purchased from separate traders through linked online booking processes where the traveller’s name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders, and a contract with the latter trader or traders is concluded at the latest 24 hours after the confirmation of the booking of the first travel service.
Despite the wider definition, there remain some obvious ways in which a holiday can be marketed that would avoid the application of the regulations. In addition, ongoing innovation in the travel industry may mean that the 2018 Regulations are out of date almost as soon as they come into force.
In any event, it is only a matter of time before the issue of whether a combination of travel services amounts to a package is tested before the courts.
Responsibility for Performance of the Package
Under the PTR 1992, for a tour operator to be liable, the Claimant had to establish improper performance of the package holiday contract by reference to local standards.
Regulation 16(3) of the PTR 2018 states that the organiser must offer the traveller appropriate compensation for any damage which the traveller sustains as a result of any lack of conformity. Regulation 16(4) confirms the traveller will not be entitled to compensation if the lack of conformity is:
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attributable to the traveller;
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attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or
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due to unavoidable and extraordinary circumstances
Although the language appears at first blush to be slightly different from that used in the PTR 1992, when you look at the detail the terminology is not dissimilar. “Lack of conformity” is still likely to fall to be determined by reference to local standards given that the definition of the term refers to the concept of “improper performance”. The defences are in remarkably similar terms.
It is likely, therefore, that it is the wider definition of what amounts to a package that will be the area where the most significant changes between the PTR 1992 and the PTR 2018 will surface. At the date of writing there are no reported cases on the interpretation of the PTR 2018 but the wealth of case law that its predecessor generated suggests that it can surely only be a matter of time before the PTR 2018 finds itself before the courts.
Katherine Allen, Partner and Travel Litigation Specialist, Hugh James
[1] The Package Travel and Linked Travel Arrangements Regulations 2018
Image ©iStockphoto.com/Elerium
The legal liability of the sportsman for causing injury to a third party - Alec Samuels
11/10/19. In the course of engaging in his sport the sportsman causes injury to a third party. For a criminal conviction the prosecution will have to prove subjective criminal intent to injure or a reckless indifference as to whether or not an injury would be caused. For negligence the claimant will have to prove the duty of care, proximity, foreseeability, reasonable objective standards, breach, the typical common law claim. A mere error of judgment will not suffice Wooldridge v Sumner [1963] 2 QB 43, CA.
The sportsman is expected to adhere to the rules of the sport and the normal customs and conventions and practices expected in the sport, the culture of the sport. Following the rules is not necessarily a defence, just as a breach of the rules is not necessarily sufficient for liability, but compliance or non-compliance will be very significant. The evidence, the facts, will naturally be critical. Modern photography can often provide excellent contemporary evidence. The sport may be inherently “rough”, tackling being inherent in rugby and football; and usually strong young men, and nowadays even young women, are loyally striving to bring to bear their energy and strength and skill to win.
If the sportsman is or should have been aware that the opponents were novices or inexperienced then he may be expected to be particularly careful in such circumstances.
Every sport carries inherent risks, some greater than others. Boxing is a contact sport, the known intention being to knock out the opponent. Football, rugby and hockey are also contact sports. Cricket can send hard balls whizzing through the air, and a third party can receive a nasty blow...
Image ©iStockphoto.com/padnpen
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- Summary of Recent Cases, September 2019
- Case Report: B v Murtezi - Helen Reynolds, Spencers Solicitors
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