Thinking of suing? Pitfalls and delays.

In this article, David talks about his experiences making a legal claim after he was attacked by cows.

I advise you to consider suing

If you have been involved in any cattle aggression incident, it should be reported to the authorities and recorded on this website. But, if any injuries are suffered, then take the matter up through solicitors.

I make this recommendation not because I want to turn our society into a “compensation culture”, nor because I want farmers to be taken advantage of by the unscrupulous. (In fact, no-one in their right mind would risk a “whip-lash” type scam by setting up a cattle trample attack.) But I believe matters should be taken up legally, and I advise you to consider suing, for two reasons.

Firstly, because it is entirely right that victims should be fairly compensated for what they have suffered, and reimbursed for financial losses incurred.

Secondly, because unless the farmer responsible (and parliament has decided that the farmer who owns the cattle is responsible for damage caused by their animals) is held to account financially, and is forced to look at the way they run their farm, then there is no education or incentive for any safety improvements to be made by the farming industry, and things will just continue as they are.

I have seen a judgement where animal attacks were put in the context of “normal social give and take”. That is all very well in theory, but the farmer is running a business, and the farmer “takes” while the victim “gives” – up to, and including, their life.

After hearing of Libby’s case, I was pleased to see Libby got justice and received compensation following her traumatic attack by cows. But, the legal process may not run so effectively as for Libby, as my own story will show.

I suffered a serious cow attack when walking on a public footpath. On my discharge from hospital, I researched the topic, just to find out what I could have done to avoid the incident. I was surprised to find how clear the law and guidance was, which – if the farmer had followed it – could have prevented the incident.

Progress of my claim

Fortunately, I found I had legal insurance cover under my bank account, so I made contact and a nationally reputable firm of solicitors was appointed. I was advised that my claim for injury and loss compensation had a good prospect of success.

A claim notification form was lodged against the farmer. He denied responsibility, and said he had no money nor any public liability cover. After some investigation, my solicitors backed out on the basis that there was little prospect of any compensation (or fees) being paid.

It should be appreciated that although the solicitors technically acted for me, they would be paid by the insurance company and so have a duty to the insurer to recover fees incurred.  On that basis my insurer would not fund another more willing firm of solicitors.

So, because the farmer had decided not to have insurance (I suspect to his regret), the cover I had paid for effectively lapsed.

Farmers without public liability insurance

I would add that, because of the small-scale operation of that particular farm, the farmer was not legally required to have public liability insurance, a situation I have taken up with my MP and above. Small scale organisations, who fall below current thresholds for requiring insurance, may well be run with less regard for employee and public safety than larger organisations, and so be more in need of insurance cover. In addition, small farms may have less financial assets of their own to meet a claim.

Compulsory public and employees insurance, for all businesses, is an issue I would like to see addressed. Without insurance, it is the victim who suffers.

No-win no-fee arrangement

Eventually, I did manage to get a lawyer to act for me on a no-win no-fee basis. This was a commercial decision, made on the grounds that most farmers must have some money hidden away somewhere. Although the matter is still ongoing, that decision may be justified in that the farmer, in my case, has confirmed he owns the farm.

The problem with no-win no-fee arrangements is that there can be less client control of the solicitor, particularly in my situation where I had no other option. The whole matter has proven to be protracted, even with  my experience of the legal process. There were various stages to go through: such as the claim form resubmission, the medical examinations, and the barrister appointment. Rather than these stages being run close to concurrently, they were run consecutively. This led to inevitable delays between each phase.

Delays, delays, and more delays

The worst delay was after the original medical consultant appointment, where the draft report took many months following my examination (by this time over a year since the attack) and the final report was actually never published despite deadlines imposed. A second consultant was appointed after the first one, to cover injuries not within the expert speciality of the first consultant. This second consultant eventually issued a single report covering all aspects of my injuries.

I requested, from my solicitor, the details of the original consultant’s appointment, so that I could make a complaint (the inaction had wasted a year). But those details have not been provided. As the consultant was not engaged by me, I seem to have little client control.

Finally a barrister was appointed to prepare the claim papers, so more delays. From the onset I had been trying to get from the solicitor some ball-park advice on the damages to be claimed, but the barrister then suggested a figure far lower than I thought appropriate. This was without any explanation. This low figure was presented to me by the solicitors almost on a “take it or leave it basis”. With all the delays, the three-year statutory limitation period for personal injuries was almost up, so I was forced into accepting the figure proposed.

It was too late to change course. The claim was served.

A self-defending farmer

Because the farmer had no insurance backing, he had been dealing with the matter himself. I thought that did not help him, or me, because with no legal knowledge he did not seem to understand his clear liability for the actions of his cattle. A defence was served denying responsibility, but I was made a very modest offer of settlement, nonetheless.

Derisory offers

Then out of the blue, the farmer appointed defence solicitors. His solicitors withdrew the original defence and put in a defence which bore no relationship with the facts of the case. The modest settlement was substituted by a derisory offer. Maybe the defence solicitors were also working on an incentivised basis.

Another downside of no-win no-fee appointments, is that there is invariably an incentivised element. A percentage of the damages is taken by the solicitors to compensate themselves for the delay in receiving any fees until after the judgement. This means that, whatever I am awarded for damages and to reimburse what the incident has costs me in loss of earnings etc, I will get a reduced net amount. If the same claim had been won under my original insured claim, I would have received the full amount.

The case continues…

I am still waiting for the claim to be settled. No doubt there will be many twists and turns before this is all played out and the judgment made.

David’s case proves that suing after a cow attack can be a lengthy and frustrating process. Nevertheless, he recommends considering legal action.

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