Slater and Gordon on contributory negligence

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squeaker
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Slater and Gordon on contributory negligence

Postby squeaker » 20 Jun 2018, 10:37am

This from the firm who are supposed to be on our side :roll:

https://www.facebook.com/slatergordonUK ... 147058366/

:shock:
"42"

Phil Fouracre
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Re: Slater and Gordon on contributory negligence

Postby Phil Fouracre » 20 Jun 2018, 10:43am

Well, that's a great help then!
Never attribute to malice that which is adequately explained by stupidity

Tangled Metal
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Re: Slater and Gordon on contributory negligence

Postby Tangled Metal » 20 Jun 2018, 10:46am

Aren't they just giving their view on the attitudes of the legal system on contributory negligence? If they took the helmet phrase out would that stop the lack of a helmet being considered by courts as contributory?

I thought you'd prefer good legal advice over the legal advice you want to hear. They can't change the prejudices of the legal system they can only advise on the situation as it is.

Just to provide you with an alternative view of that post. From the viewpoint of someone who I contend hasn't taken a knee jerk response to something he didn't like to hear, but accepts that legal professionals have to advise based on the situation as it exists.

thirdcrank
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Re: Slater and Gordon on contributory negligence

Postby thirdcrank » 20 Jun 2018, 10:54am

I'm not on facebook so that passes me by. As I've posted before, contributory negligence is relatively new to our legal system - 75 years old (?) - and before that, if any negligence by a claimant could be proved, their claim failed; a %age reduction is a big improvement. Otherwise, don't shoot the messenger.

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Re: Slater and Gordon on contributory negligence

Postby Psamathe » 20 Jun 2018, 12:45pm

https://www.facebook.com/slatergordonUK/videos/10155627147058366/ wrote:....which would be if the cyclist was cycling in an unsafe manner or not wearing a helmet,

To me, that they mention "cycling in an unsafe manner" OR "not wearing a helmet" suggests that not wearing a helmet is not unsafe.

Ian

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Re: Slater and Gordon on contributory negligence

Postby mjr » 20 Jun 2018, 12:51pm

thirdcrank wrote:I'm not on facebook so that passes me by.

The posted message says "The first thing we have to prove is primary liability and then the defendant will have to assess contributory negligence, which would be if the cyclist was cycling in an unsafe manner or not wearing a helmet, explains our Steve Hill" and there's a video elaborating the point.

Note "would be" not "could be". That takes it from a possibility to apparently a statement of S&G's view. At best, it's poor phrasing and I wouldn't want solicitors who misphrase things to be representing me. At worst, the zealots have captured S&G.
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Re: Slater and Gordon on contributory negligence

Postby Tangled Metal » 20 Jun 2018, 1:00pm

Or they're just stating what would be the decision of the courts. I read that as solicitors stating what is the current thinking of the court system with contributions towards negligence. They see not wearing a helmet as contributory not the solicitors.

It would probably be misrepresenting the situation by not stating this. Would you want your solicitor only telling you what you wanted to hear?

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Re: Slater and Gordon on contributory negligence

Postby thirdcrank » 20 Jun 2018, 1:13pm

One plea: let's not turn it into a helmet thread.

A big consideration here is who is paying the bill? If you win, it's the other side (subject to conditions.) If you lose, your side pays. If you are funding your own case yourself, you can instruct your lawyers as you wish, within the law. If the funding is coming from somebody else like CyclingUK or a specialist After the Event (ATE) insurer, then they will want advice about the winnability of the case before deciding whether to fight or settle.

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Re: Slater and Gordon on contributory negligence

Postby Tangled Metal » 20 Jun 2018, 1:39pm

Wasn't that the issue the op had? An issue with the helmet comment, which kind of makes it a thread about helmets too.

Truth is the comment could be about any aspect of the current legal situation which is based on existing judgements. So if the courts were saying anyone cycling with a custard pie on the head had a contribution towards negligence then they'd be mentioning that. Even if the op only wanted to talk about people with bakewell tarts on their heads, or even no dessert on their head at all.

Truth is legal advice should be based on the legal opinion based on laws, case laws, precedents, etc. Basically their opinion of what the current situation is. Ignoring courts reducing payouts for missing helmets is ignoring what is probably happening. Bad legal advice to do that surely?

Solicitors should give their clients good / factual / honest legal advice, whether facts of the legal situation are good or bad from your viewpoint is irrelevant to the giving of that advice. It seems to me that an element of it doesn't sit well with the op and others so they don't want to hear it. That's like sticking your fingers in your ears and going "nah! Nah! Nah!" until the advice goes away.

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Re: Slater and Gordon on contributory negligence

Postby mjr » 20 Jun 2018, 1:46pm

Tangled Metal wrote:Or they're just stating what would be the decision of the courts. I read that as solicitors stating what is the current thinking of the court system with contributions towards negligence. They see not wearing a helmet as contributory not the solicitors.

It would probably be misrepresenting the situation by not stating this. Would you want your solicitor only telling you what you wanted to hear?

When I looked a few years ago, most of the times these sorts of things have gone to court, the so-called negligence has been found not to be contributory because most often it could not be proven that the claimant's action or inaction contributed to the injuries or their severity, and sometimes because it was not actually shown to be negligence.

Whatever the action/inaction, if there is current thinking which is flawed, harmful to cycling and not precedence, then surely a good solicitor with our best interests at heart would be challenging and seeking to change that flawed thinking, rather than pandering to it by implying we should harm ourselves and the public?
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Re: Slater and Gordon on contributory negligence

Postby mjr » 20 Jun 2018, 1:49pm

Tangled Metal wrote:Ignoring courts reducing payouts for missing helmets is ignoring what is probably happening.

Go on, cite the cases which make that a general precedent rather than a few very specific unusual cases.
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Re: Slater and Gordon on contributory negligence

Postby thirdcrank » 20 Jun 2018, 1:57pm

The one that has always concerned me - at least since they started to sprout - is ignoring farcilities. I can't remember his name but a solicitor from Russell, Jones and Walker (the huge firm swallowed up by Slater and Gordon) used to have a regular Q&A slot in the CTC mag and he opined that this would not amount to contributory negligence. The point is the persuasive authority of the HC.

On the subject of "our interest at heart" AFAIK, the benefit here of the CyclingUK scheme is that it's self-financing in that CyclingUK puts up the money and then can take the margin which would normally go to the hard-nosed specialist ATE insurance company. That gives a bit of latitude in respect of cyclists interests. It can't be a bottomless fund of magnanimity and IIRC Kevin Mayne founded the Cyclists' Defence Fund in an attempt to fill the gap.

(I've no idea if the Cycling UK scheme runs on the same principles as its CTC predecessor.)

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Re: Slater and Gordon on contributory negligence

Postby PH » 20 Jun 2018, 2:13pm

thirdcrank wrote: If the funding is coming from somebody else like CyclingUK

When would the funding come from Cycling UK?
let's also be clear about who is paying - since 2013 the success fee in a Conditional Fee Agreement case is paid directly out of the compensation, up to 25% of it. It's an absolute disaster and broke the convention of being returned to the same position as pre accident.
Does anyone know how often not wearing a helmet has been accepted as contributory negligence? Last case I heard about was dismissed as the rider was going at a speed where it was decided a helmet wouldn't have made any difference. If it's as rare as I think it is I'm not sure why S&G would give it such prominence.
EDIT - I see you've partially answered the first point, the ATE insurance is taken up by CUK, though it's only a small percentage of the costs.

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Re: Slater and Gordon on contributory negligence

Postby Psamathe » 20 Jun 2018, 2:34pm

Tangled Metal wrote:......
Truth is the comment could be about any aspect of the current legal situation which is based on existing judgements. So if the courts were saying anyone cycling with a custard pie on the head had a contribution towards negligence then they'd be mentioning that. Even if the op only wanted to talk about people with bakewell tarts on their heads, or even no dessert on their head at all......

I'd be expecting the solicitors to explain the existing judgements and then going on to say that they believe there are good arguments about the ineffectiveness of custard pies and that they believe they can present good arguments against any contributory negligence but highlighting the risk that the courts might or might not accept their case.

So in general terms, for a company hoping to represent cyclists certainly present the current position the courts take but I'd hope they'd be adding bits about how often/sometimes/etc. there can be a good case to argue against such contributory negligence award reductions (depending on the circumstances) and then add that they make every effort to argue the case for the cyclist based on the requirements of the law (e.g. helmets are not a legal requirement), etc.

Ian

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Re: Slater and Gordon on contributory negligence

Postby thirdcrank » 20 Jun 2018, 2:36pm

PH wrote: ... When would the funding come from Cycling UK? ...


There's a bit of forum history to this. "Legal aid" was always one of the big selling points of CTC membership, along with the insurance. RJW used to advertise no win, no fee representation to the general public, which prompted the question about what benefit was there in CTC membership. I never managed to get any sort of answer but I noticed in the published accounts a credit item for the legal aid: I eventually found out - as I posted above - that by putting up the £££, the CTC was able to collect the margin that would otherwise go to the ATE insurer. The success fee was controversial because lawyers were piling it on, particularly in defamation cases. The fact that it now comes out of the compo doesn't - I think - affect the underlying priniciple.

AFAIK Conditional fee agreement = the lawyer only charges for winning, so they are cautious about taking on cases which might be lost.
Collective conditional fee agreement = when an organization such as a trades union (or in this case the CTC) puts up the money from its own coffers as a membership benefit. The nature of such organisations suggests they have their members' interests at heart. Defining those interests may be problematic.