Forget your fantasy pay-out

Forget your fantasy pay-out

I was involved in a nasty motorcycle accident. A car failed to give way, pulled out in front of me and I sustained serious fractures to both of my wrists.

I work as a window fitter and the expert surgeon picked by my solicitors says there is no realistic prospect of me ever working in a manual trade again. Even the defendant’s expert accepts that if I were to return to a manual trade I would not be able to sustain it for more than a few years and would significantly increase the harm to my wrists.

I am 45 years old, but this accident means I have lost the chance of setting up my own business as a window fitter. I have friends who do this self-employed, employing teams of fitters, earning £80-100,000 a year. My solicitors say my pre-accident take-home earnings of £25,000 a year is what my future loss will have to be based on, but I think this is unfair. I am sure I would have set up my own business and I want my solicitors to put forward a case with me earning £75,000 a year. A lot of my mates say they will write references for me – one has been running a successful business for 10 years and will say there is no reason I should not have done as well as him.

My solicitors asked if I had any sort of business plan, or had organised business loans, set up my own company or done anything similar. I had not, but I would have. However, my solicitors say they are not prepared to put forward my losses on the basis of me running a successful company.

Do you think I should put forward a case based on what I think I would have earned? They are telling me if I want to do that, I can start paying them privately rather than doing it on a no-win, no-fee basis – which I cannot afford to do. I feel bullied and not listened to.

Answer

Your solicitors are correct. I have read the barrister’s advice and she is not bullying you. She is politely pointing out a few home truths. You are 45 and have been employed by someone else all your adult life. Your successful mate is no help, as he actually set up his own business. You did not – and you don’t have even the most basic plans in place to show you were realistically thinking of doing so. Being rather blunter than the barrister, it is very difficult to accept that you could have trebled your earnings but never did anything about it.

There is a presumption in English law that, whatever the situation was prior to the intervening cause (in your case, serious injuries), things will continue much as they had done. You have steady earnings, which for the past four years was £24-27,000 take-home. You will get nowhere by standing up in front of a judge and saying, “All of this was about to change, but I do not have a shred of evidence to support it – so I would like you just to take my word for it.”

The defendant’s solicitors will put forward an offer based on ordinary personal injury settlement principles; that you have some post-accident earning capacity, but it is not going to be anything like what you had as a skilled man. You are 45 and have worked in the building trade since the age of 17, so a high-paid new career in a different industry is unlikely – but the court will expect you to work. You would be well advised to make sure you have a job before the trial starts.

Any judge would inevitably find, in the absence of evidence to the contrary, that you would have continued working in your trade until you retired. Your prospects are now for limited earnings, with long periods of unemployment being likely. The worst thing that you can do is turn a judge against you by making a trumped-up, fanciful claim.

I am afraid your proposal is fantastical to the point of being nonsensical. Leave it well alone. As your solicitors are on a no-win, no-fee deal, they can decline to press on if you ignore their advice. Your mates may be trying to help but, just as you wouldn’t get a lawyer to fit windows, window fitters are not a good source of legal advice.

Andrew Dalton

RiDE Magazine June 2017

Posted by Andrew Dalton. Posted on: June 1, 2017 at 12:00 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.