It’s insurance Jim, but not as we know it!

In the second of our series of blogs we concentrate on what happens to your car when it is damaged. You’ll remember that the particular scenario that we are using is where you are the driver with 2 passengers in your car and, unfortunately, through misadvertance you fail to realise that the car in front has not moved away to join the roundabout when you expected it and you run into the rear of the car in front. Much depends on whether you are comprehensively covered or not. Most of you will be familiar with ‘comp’ cover, in that your motor policy covers you for the cost of repairs for the vehicle damage, subject to any applicable ‘excess’ . This is the first part of the claim that you have to pay yourself and is the amount that you will have to pay the garage before they will release the car to you once it has been repaired. There may be an additional excess depending on who is driving, particularly a young driver. If you have a company vehicle and your company is VAT registered then, in addition to the amount of the excess, the garage will also want payment of the VAT for the whole repair (as your insurers will only pay net of VAT if a company is VAT registered) before the car is released to you. Under the terms of the policy you are obliged to report all accidents and here, as you are at fault for the accident, you have a choice to pay for the repairs yourself or if you are ‘comp’ covered, and the repairs are likely going to be over your excess, you will normally ‘make a claim on the policy’ and ask your insurers to pay for the necessary repairs. Increasingly, nowadays you will have to take the vehicle to an approved repairer and leave it there for an estimate to be prepared and/or for the insurers’ engineer (or an independent engineer) to come and physically inspect the car or for a video inspection to be done from an engineer’s desk, after which the charges will be agreed for labour and any special features of the repair agreed; parts will then be ordered. At some approved repairers the insurers will authorise repairs even without an inspection as the garage will prepare an estimate on industry agreed procedures, timings and rates of pay. The garage may let you have the use of a courtesy car whilst yours is at the garage but this depends on the garage and the cover on your policy; they are not obliged to provide you with a car. If the garage has not done the repairs to your satisfaction then there may some difficulty in getting them to complete the work, if other damage is found that then requires input from the insurers again. It is your right to have the work done to the necessary standard, as there is a contract between you and the garage for the work to be done even though the insurers have paid for it and may have to be involved. The insurers will have to accept that it is additional damage due to the accident for extra work to be done and paid for it. In the scenario described it is unlikely for the cost of the repairs to exceed the pre- accident market value of your car and you car has to be written; that’s another story! Increasingly you may be faced with a recent innovation, the credit-repair arrangement where, even though you have comp cover, you have to enter into a credit agreement to get the repairs done. This will not happen in our scenario as there can be no claim against another party; insurers will get the credit-repair arrangement in place so that they don’t have to pay the garage straight off if a claim can be made against another party at fault for the accident. Your car is still repaired but the garage is not paid straight away by your own insurers.

If you are insured third party only or third party, fire and theft then you will have to sort out the repairs yourself in our scenario as there is no insurer who can be involved. This might leave you in a poor bargaining position with your garage if you do not know them and they will not be bound by any agreed labour rates.

For more information and independent advice on personal injury claims and how Blacks can help, please contact Stephen Ball of the Personal injury Department of Blacks Solicitors LLP.

SBall@LawBlacks.com 0113 2279390

See You In Court

It is not uncommon for businesses to spend substantial sums on marketing, but there are dangers involved in using a marketing campaign which aggressively targets a competitor by reference to its trade marks. Businesses should be aware that the Courts will not allow them to “ride on the coat tails” of others or build unfairly on a well-known competitor’s reputation, even where the business itself is a well-known brand in its own right.

The case of Specsavers –v- Asda concerned a marketing campaign by Asda to promote its in-store optician services. Asda used various marketing materials in their stores and on their website which included the taglines “Be a real spec saver at Asda” (“the first strapline”) and “Spec saving at Asda” (“the second strapline”). Asda had also used a logo mark of two non-intersecting ovals similar to those used by Specsavers.

Specsavers issued proceedings in the High Court for trade mark infringement and passing off. The Community Trade Mark (CTM) Regulation provides the owner of a CTM with the right to prevent unauthorised third parties from using any sign where there exists a likelihood of confusion on the part of the public and any sign which takes unfair advantage of, or is detrimental to, the distinctive character of the CTM.

The use of the first strapline was found to be an infringement because it drew on the reputation of Specsavers and as this was intentional, it was found to be unfair. The second strapline was however acceptable because it had a much weaker link and any detriment was therefore much less likely.

Mr Justice Mann found that the use of the logo did not amount to trade mark infringement because the ovals did not overlap (as those used by Specsavers) and Asda’s very well known name appeared in the logo so there was no confusion. This was reinforced by the fact that the material appeared only in Asda’s own stores and on its website.

The claim for passing off failed because Asda’s intention was only to invite favourable comparisons with Specsavers and not to misrepresent itself as its competitor.

The parties appealed. The Court of Appeal upheld the decision relating to the first strapline and further found that the second strapline did infringe Specsavers’ marks when used as part of its composite advertising campaign. Using Specsavers brand as a reference point for consumers to convey that Asda’s service was of good value did amount to taking an advantage.

Asda’s cross-appeal relating to the first strapline was dismissed as the Court considered they had adopted the strategy of using a strapline that was intended to bring to mind its competitor and to convey its own superiority in terms of value, range and professionalism. The Court rejected the argument that this was merely comparative advertising.

Lord Justice Kitchin confirmed that in assessing the likelihood of confusion arising from the use of a sign, the Court must consider the matter from the perspective of the average consumer of the goods or services in question. It must take into account all the circumstances that are likely to operate in the average consumer’s mind in considering the sign and the impression it is likely to make on him.

The Court found that Asda had intended to benefit from and exploit the Specsavers brand to its own advantage. Specsavers had a significant reputation and it was the intention of Asda to target this campaign for identical goods and convey the message that they offered good, if not better, value.

The Court of Appeal is seeking guidance from the Court of Justice as to the importance to be attached to the colour of a trade mark which, although not registered, has become synonymous with that mark when assessing public confusion and unfair advantage.

For more information or advice on these and related matters, please contact Luke Patel on 0113 2279316 or by email at LPatel@LawBlacks.com

Ambulance Chasing: A free for all?

It is a jungle out there and the prey is the person who has had an accident. This is regrettable to say the least. A lot can happen after an accident and in a series of blogs we will develop themes from one particular scenario and take you through various aspects arising.

The scenario that we will use is where you are the driver with 2 passengers in your car and, unfortunately, through misadvertance you fail to realise that the car in front has not moved away to join the roundabout when you expected it and you run into the rear of the car in front.

We will take you through the process of what happens to your car, your passengers and the other car and its occupants, if any, but this blog will focus on so called ‘third party capture’, an all too common feature nowadays.

After an accident a person will normally inform their own insurers about the accident so that they can have their vehicle repaired if there is comprehensive insurance on their vehicle. Typically the insurers will ask if there has been anyone inured; a legitimate question but this can lead to the insurer obtaining details of other parties involved not solely for information purpose but to step in and take direct action.

In our scenario this will mean that the two passengers in the accident, passengers in your car, can be contacted to ask if they have been injured and would they wish to make a claim. This claim would be against you and this may seem incongruous that your own insurers can enquire about whether a person wishes to make a claim but against you! Strange as it may seem but they will do the same with the driver of the other car and any passengers in that car rather than wait to see if a claim is made against you.

Increasingly the insurers will consider not just trying to minimise a clam for the damage to the other party’s car by arranging for the repairs to be done in their approved garage, but they will offer a  ‘free’ car whilst the car is on for repair (we will come to whether it is ‘free’ in subsequent blogs). In addition, they may offer a so called ‘pre-med offer’; that is a person might be offered an amount that will vary from between £750 and a £1000 straight off to settle a claim for any personal injury that that person might have had, after receiving the most rudimentary information and without any medical evidence. If a pre-med offer is not made then the details of the injured person will be passed invariably to a firm of solicitors to act for them in making a claim, in this instance against you; the ‘capture’ part of the ‘third party capture’ phenomenon. The insurers will receive a referral fee from the solicitors for referring that person to them. Referral fees will be the subject of a subsequent blog!

Under a long standing principle following the case of Horry v Tate and Lyle an insurer must not seek to take an advantage of an unrepresented party when making settlement proposals and must advise that person about the basis of any offer and of their right to seek independent legal advice. The thin line can be crossed and in the above examples it is clear that this can happen. In our scenario your passengers and the other parties have a right to make a claim for compensation if they have been injured as a result of your negligence and you cannot legitimately stop them but one is forced to ask exactly who is your insurer helping?

For more information and independent advice on personal injury claims and how Blacks can help, please contact Stephen Ball of the Personal injury Department of Blacks Solicitors LLP.

SBall@LawBlacks.com 0113 2279390

Snakes and Ladders

Having building work carried out at your home can lead to endless problems. From cowboy builders to unsatisfactory work, a home owner can be left feeling helpless and may find it difficult to put things right. Here we look at various examples of improvements of home owner’s rights providing protection to those engaging contractors, although sometimes the results can be a little frustrating.

Home owners can now obtain protection against cowboy builders and rogue traders by using the Bondpay scheme endorsed by Trading Standards. The home owner pays the full amount of money for the work up front which is then held by Bondpay and only released to the builder upon satisfactory completion of the works. The scheme is free to homeowners and provides protection and peace of mind. Bondpay also offer a 1 year guarantee on all works at no additional cost which covers faulty workmanship and materials. The guarantee will also provide cover if the builder ceases trading.

All works which are undertaken by the builder must comply with the strict Consumer legislation and Building Regulations. In the case of Lowe –v- Machell Joinery Ltd the Claimants purchased a bespoke oak staircase for their barn conversion at a cost of £16,000. It transpired that the design of the staircase was in breach of the Building Regulations because the spindles were too far apart. The Court found that the staircase was not fit for purpose or of satisfactory quality, as required by the Sale of Goods Act. The Judge held that the fitness of goods for purpose must include compliance with the Building Regulations. On the basis that the staircase could not lawfully be used for its intended purpose, it was not fit for purpose and not satisfactory. The Claimants were therefore entitled to reject the staircase.

Home owners can also find themselves facing claims from builders who suffer injuries while working on the properties. However, the Court of Appeal ruled in the case of Kmiecic –v- Isaacs that home owners were not responsible for the safety of workmen on their property. The Claimant sought compensation for injuries sustained after a fall while working at a house in Hampstead. The owner of the property had given him a ladder to access the roof and had prevented him from taking the safest route to the roof because she did not want him walking on her white carpets. The Court held that it was the duty of employers and not home owners to ensure the safety of their workmen.

But it’s not all good news for home owners. In the case of Atwal –v- Rochester, the Claimants entered into a contract with Mr Rochester, a builder, but after starting the extensive works he suffered a heart attack and was unable to return to complete the works. The Claimants argued that the builder was in breach of contract and sought damages from him. The High Court held that the work was to be personally performed by Mr Rochester and because he was seriously ill and unable to complete the job, the contract was frustrated. This meant that the builder was not in breach of contract and he was able to claim damages from the home owners for a reasonable sum for the work he had performed. The contract was held to be a personal one because the builder was known to the home owners, he had agreed to perform the works substantially below the market price and the Claimants knew that there was no-one else who could have done the work on his behalf.

Home owners should be wary of entering into contracts with sole traders without clear terms in the contract setting out the parties’ rights and obligations where the contractor is prevented from working and the steps to be taken to remedy that situation.

For more information or advice on these and related matters, please contact Luke Patel on 0113 2279316 or by email at LPatel@LawBlacks.com

A Costly Delay in Diagnosis

Last week a Yorkshire woman won her compensation claim  against the NHS North Yorkshire and York Hospital Trust after a hospital failed to spot that her foot was broken for a period of four months.

The 52-year-old woman could not walk due to the tremendous pain and yet, despite having an X-ray on her foot, doctors still did not realise that it was broken.

The woman thought something was untoward but did not like to challenge the doctors, especially as an x ray had been done. However, they mis-read the x-ray as it clearly showed a broken bone and so they neglected to tell her and also failed to take any action to reset the bone.

On a second visit to the hospital at a routine clinic she was told she just needed to rest the injury. However, due to continuing pain over the next two months she decided to go to see her GP Two months and it was only then that she was given the accurate diagnosis.

The bone took much longer to heal than it should have done because the correct treatment was delayed and this caused her to suffer more pain and discomfort than she would have had to suffer.

Blacks Solicitors know that claims for medical negligence against the NHS (a hospital or a GP) or against a private health provider can be difficult and you will need help and understanding.  To be successful in a claim you must prove that there has been a breach of duty (the care or treatment received was substandard or unacceptable by the usual standards of the medical profession; this is important as a simple mistake or unintended and/or unfortunate consequences of medical treatment may not necessarily be negligent). Also it is necessary to prove that the substandard care or treatment actually caused the injury or made the condition worse than it would otherwise have been.

Blacks can offer a conditional fee agreement (more commonly known as a ‘No Win, No Fee’ agreement) with the protection of appropriate specially tailored legal expenses insurance cover to safeguard your financial position. For more information or advice on medical negligence claims please contact Stephen Ball or Ian Jones of the Personal injury Department of Blacks Solicitors LLP.

SBall@LawBlacks.com   0113 2279390
IJones@LawBlacks.com 0113 2279355

Stressed at Work: Read on

Last week in a Queen’s Bench Division case the court emphasized the important criteria to consider in work related stress cases.

Whilst the main issue was that claimant was unable to establish a causal link between alleged amount of work and stress and her medical condition which included Chronic Fatigue Syndrome CFS, the court took the opportunity to emphasize the hurdles to establishing liability, when dismissing the claim.

• It was insufficient for a claimant to show that his employer knew or ought to have known that he had too much work to do, or even to show that he was vulnerable to stress as a result of overwork.
• To succeed, a claimant had to show that his employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm in terms of a psychiatric or other medical condition.
• Even then it was insufficient merely to show that there was a known risk of some psychiatric or other injury in the future.
• The claimant had to show that the employer knew or ought to have known that, as a result of stress at work, there was a risk that he would suffer harm of the kind he in fact suffered.
• Although most employees would have difficulties with the amount or nature of their work from time-to-time, very few were at risk of psychiatric illness as a result. An employer was entitled to assume that an employee could withstand the normal pressures of the job unless the job was such that employees were known to be at particular risk of injury.

This is a timely reminder for all personal injury lawyers, be they claimant or defendant, and all employment lawyers.

The case citation of the judgment in MacLennan v Hartford Europe Ltd is [2012] EWHC 346 (QB).

For more information or advice on work related stress, please contact Stephen Ball of the Personal injury Department or Tom Moyes of the Employment Law Department of Blacks Solicitors LLP.

SBall@LawBlacks.com 0113 2279390 
TMoyles@LawBlacks.com 0113 2279238

 

“Here to help” : Covering the cost of your legal action.

by Luke Patel  -  Head of Commercial Litigation at Blacks Solicitors LLP

Legal Expense Insurance (“LEI”) is a type of insurance policy which covers the costs involved in potential legal action; it can cover the cost of instructing a Solicitor and protect you against any costs awarded against you.  Many people have LEI without even realising it or are unaware of the extent of the coverage it provides. 

Research carried out by the Ministry of Justice in 2007 revealed that less than one in four consumers had even heard of LEI.  Despite this, it is estimated that around 28 million adults in the UK (almost 60% of the population) do actually have LEI cover in place, and without them knowing. 

As well as being available on a stand-alone basis, LEI is commonly included as an additional benefit on some motor and household insurance policies, as well as some credit cards.  It is usually included free or is available for a small additional sum (typically less than £30.00).  Some Insurers automatically add the cost of the premium to your quote or renewal and will only remove it if you specifically ask them to.  However, the small cost involved may prove to be money well spent if you find yourself wanting to start a legal action. 

LEI is often available for a wide spectrum of disputes, including property disputes, consumer claims, employment disputes and personal injury.  As well as covering your own solicitor’s costs it will provide cover for your opponent’s legal costs in the event your claim is unsuccessful. 

If your policy does not contain LEI, you may wish to raise this with your Insurance Company or Broker and obtain a quote for ‘adding on’ this benefit, but be aware that there may be a deferred period within which no claims can be made.  For maximum cover it is worth having LEI on both your household and motor insurance policies. 

It is important to check your policies at the outset of any claim to ensure your costs are covered.  Your insurers are unlikely to pay for any legal costs you incur before reporting the claim to them.  There may also be a time limit on making a claim under your insurance policy, so you must act fast.  We can assist with checking insurance policies and making the appropriate initial enquiries with your Insurance Company, usually at no cost to you, to find out the cover you have. 

Whilst your Insurance Company may have a preferred panel of Solicitors to refer your case to and ask them to act for you, it is often possible to instruct Solicitors of your choice instead, particularly when the issue of proceedings is the next step.  We would contact the Insurance Company for you. 

The type of policy described above is known as ‘Before the Event’; the insurance is taken out in case something happens in the future, that is, before an event has happened.  There is also a type of policy called ‘After the Event’ (“ATE”) insurance, which is taken out after the incident has happened and this provides similar cover insuring you against your opponent’s costs. 

The premium for “ATE” cover is usually more expensive but many insurers offer deferred premiums which means that the premium does not have to be paid until the case concludes successfully.  If your case is successful, your opponent will normally reimburse the cost of the policy.  Most ATE policies where the premium is deferred will not require the premium to be paid by you if your claim is unsuccessful.  We can obtain an appropriate ATE policy on your behalf, if required. 

In addition to checking your insurance policies for legal expense cover before commencing any legal action you should also check if you can get free legal advice if you are a member of a trade union or other professional body.  You may be entitled to a public funding certificate (formerly Legal Aid) but the categories of cases which qualify are restricted.  We would always check this with you. 

Even if you are not at present thinking about pursuing a legal case, it would be prudent to check your insurance policies or contact your Insurance Company or Broker to ascertain if such a benefit is available and what the premium would cost.  To take these steps now will be time and money well spent, providing the financial assistance for your legal action and protection against any potential award against you for your opponent’s costs in the event of your action not being successful.