Osbornes’ Personal Injury Department specialises in serious and complex injury work but its Cycling Team acts for injured cyclists at all value levels above £1000 PSLA, and we advise and represent members of the London Cycling Campaign (LCC) who have been involved in accidents.
We are content for the Association of Personal Injury Lawyers (APIL) and other representative bodies to address the full range of issues referred to in the Justice Committee’s call for submissions, but we would like to address in this submission one particular point that is of considerable importance to one group of road users who will be affected by the proposed increase in the Small Claims Limit (“SCL”), and that is the way the increase will affect cyclists.
The wording of the proposal (at paragraph 93 of the Government’s Response to its consultation (Reforming the Soft Tissue Injury (“whiplash”) Claims Process) is that the SCL will go up to £5000 “for RTA related claims”. The limit will increase only to £2000 for “all other types of PI claims”.
When a cyclist (or pedestrian) is injured in a road traffic accident that was caused by a vehicle then the resulting personal injury claim will clearly fall within the definition of “RTA related claims” and so will be subject to the new £5000 SCL.
It is set out in terms in the consultation paper (Reforming the Soft Tissue Injury (“whiplash”) Claims Process) and the Government’s Response document that the mischief it is seeking to tackle by an increase in the SCL (and by other measures) is the number and cost of whiplash claims.
It is also clear from the Government’s response to its consultation that it accepts the Claimant lobby contention that there should not be an increase of the SCL across the board for personal injury claims, and for the reasons set out at paragraph 88 of the Government’s response document. Even the Defendant lobby accepts that the SCL should be limited to RTA claims, at least initially, and acknowledges that non-RTA claims “can be more complex as there were often more issues related to liability and causation” (see para 90 of the response document).
Where we submit the Government is wrong is in allowing the injured cyclist (and it must be said the injured pedestrian), whether as a casualty of loose drafting or due to a failure to recognise the differences between the two types of claim, to be treated in the same way as a vehicle occupant who has sustained a whiplash injury.
Cyclists tend to sustain completely different injuries. They typically suffer impact injuries, and at the lower end of the scale of severity these may include broken bones and dislocations, soft tissue injuries (including lacerations, grazes, bruises, friction burns), damage to teeth, concussion and the like, that may involve a relatively long recovery period, the need for treatment and the possibility of some residual minor but permanent effect such as facial or other scarring or psychological impact (aversion to cycling being a common one).
A significant proportion of the cyclist cases we deal with fall into the £2000 – £5000 damages bracket. A cyclist who has been knocked off their bike by a car or other vehicle almost always suffers some physical and often some psychological effect. Many are thrown over their handlebars or a car bonnet and land in the road and so typically suffer soft tissue injuries to the shoulder as well as cuts and bruises.
Many shoulder injuries fall short of a fracture or dislocation but nonetheless cause significant symptoms and some disability, but (according to the Judicial College Guidelines used by judges in personal injury cases) “a soft tissue injury to the shoulder with considerable pain but almost complete recovery within a year will attract a damages award of £2050 to £3630” (13th Edition, page 43). So such a case would be subject to the new £5000 SCL.
Such injuries need careful consideration and expert medical evidence. Because cyclist injuries are not included in the definition of RTA soft tissue injuries for the purposes of the recently created MedCo medical reporting they are – rightly – not subject to the streamlined and fixed cost medical reporting process used for whiplash cases.
Cycling claims are also more difficult cases on liability and the majority of cycling cases which start in the RTA Portal fall out at Stage 1 because liability is not admitted, and where primary liability is later accepted there are commonly arguments over contributory negligence. Those arguments tend to cover many issues, including the claimant’s visibility (eg whether the bike was properly lit), their actions (arguments as to road positioning and priority, signalling, inattention etc) and whether they were wearing a helmet and whether that made a difference.
It should be added that pedestrian injury cases fall into the same category as cycling cases: they suffer a wide variety of impact injuries which can be serious but which nonetheless may attract a damages award of less than £5000 and their cases are subject to similar arguments on liability. Defendants routine reject these cases on the grounds that the pedestrian stepped out into the path of the oncoming vehicle, that they were or could have been running and were not using a designated crossing and/or not keeping a proper lookout.
Under the wording currently proposed to distinguish PI cases that are subject to a £5000 SCL as opposed to a £2000 limit, all cycling and pedestrian cases worth up to £5000 damages would fall into the SCL jurisdiction, meaning that legal costs could not be recovered from the wrongdoer or their insurer, and so they would have to try to bring their claims without assistance or else have to pay their own legal fees. In that way they would be deprived the level of access to justice that the Government proposes to allow to all other non-whiplash claimants, and that to us appears illogical and unfair.
Cyclists and pedestrians make up only a tiny fraction of the total number of RTA claims and so there would be no erosion of the effect of the reforms by removing that category of claimant from the group of RTA whiplash cases for whom the £5000 SCL is proposed.
We would urge the Government to confirm that it is just whiplash cases that it intends to make subject to the higher SCL and to proceed with a wording in the relevant rule that excludes cyclists and pedestrians. This could be simply done by reference to vehicle occupancy, as in the definition used for the MedCo rules.