A horrible fracture to his ankle left this motorcyclist with an uncertain future. Factoring in deterioration into his award of damages was key.
Kevin McKay was on his Kawasaki ZZR1400 whilst out for a ride with a fellow motorcyclist in August 2019. They were heading north on a straight section of the A815 on Sandbank High Street in Dunoon just after 12 noon. Kevin was riding at around 25mph, well within the 30mph zone in an urban area. He adopted a riding position towards the centre of his carriageway.
Travelling in the opposite direction, were two road cyclists followed by a BMW and a Skoda. Kevin, an experienced rider, was able to determine that the BMW driver appeared impatient behind the cyclists. He reacted by braking and reducing his speed to around 10mph. As Kevin had anticipated, the BMW shot out over the centre lines and into his carriageway to overtake the cyclists before returning to the southbound carriageway.
With no warning, the Skoda driver followed suit and overtook the cyclists, encroaching into Kevin’s lane. Kevin tried to move left but was unable to avoid a collision. All four wheels of the Skoda encroached into his lane and as the car passed the offside wing mirror and side of the car hit Kevin’s bike and his right leg and arm. Despite the searing pain, Kevin brought his motorcycle to a stop and then collapsed to the ground. The Skoda drove off, unaware of the collision.
The incident locus from Kevin’s direction of travel.
Extent / Impact of Injuries
Lying on the road and unable to stand, Kevin was attended to by paramedics. He was taken by ambulance to Dunoon Hospital. X-rays revealed a nasty spiral fracture of his right ankle with ligament damage. He was transferred to Inverclyde Hospital where he underwent surgical reconstruction and fixation.
Kevin was off work as a joiner for around 7 months. He needed help from his wife and was unable to help her with caring for their four month old son. The road to recovery was slow and painful.
The Correct Assessment of Damages
Despite the presence of three witnesses to the accident, the third-party insurers refused to admit liability alleging that Kevin’s motorcycling friend was not an independent witness. The elderly driver of the Skoda had, in fact, made it all the way to the ferry terminal at Dunoon before being apprehended by the Police. He was charged with dangerous driving by Police officers.
The driver having been tracked to the Ferry terminal.
We continued to press the insurers for an admission of liability which eventually came many months after first intimation of the claim. We secured interim payments for Kevin’s damaged motorcycle gear and wage loss.
Due to the type of injuries Kevin sustained, we instructed a leading Consultant Trauma Surgeon. Despite Kevin having made a good recovery from his injuries, the type of fracture left him at an increased risk of developing arthritis in the future. The experienced trauma surgeon was able to provide an opinion on the likely risk of osteo-arthritis, the consequences and potential impact on Kevin's ability to work until normal retirement age as a joiner.
Why are MLS different?
It is vitally important to consider carefully the medical evidence and to factor into any settlement the risk of developing a condition such as osteo-arthritis that could have long term consequences on the ability to work. Due to our experience of helping clients who have suffered complex and serious injuries, we are well placed to determine the correct level of damages. This comes through knowledge built up over decades and the fact that all of our staff are well trained lawyers. If Kevin’s damages had been assessed on the fracture and surgery alone, with the future considerations disregarded, Kevin would have been significantly undercompensated. That’s why we have a policy of trained, knowledgeable lawyers working for clients.
Kevin had the following to say about his experience:
"I was unlucky enough to require help regarding an accident last year where my leg was broken badly when I was hit by a car. I was pointed in the direction of Motorcycle Law Scotland by a friend who had previous dealings with them with great results. He advised me to deal with them from the start and I am so glad I did. They have done an amazing job for me achieving a settlement that was much bigger than I could ever have anticipated. I couldn't recommend them highly enough. It just goes to show that if you get the correct advice early and take it, it can transform what is a terrible situation into a more relaxed experience especially with the knowledge they have of motorcycles and the consequences of motorcycle accidents.
I hope I’ll never need their assistance again, but if I did or anyone I know did, they would be my first and only recommendation. Anyone who rides a motorbike should know about this fantastic company."
Like so many motorcyclists, Kevin is a stoic individual and has made a good recovery from his injuries to date. The settlement which was far more than Kevin ever expected provides him with some financial security. Kevin has many years ahead of him, so looking to the future it is vital to consider all risks and include them in the assessment of damages.
It’s a sad fact that many motorcyclists suffer complex injuries and often serious orthopedic injuries that can lead to complications in the future. Such complications can often affect ability to work and live a pain-free life. Instructing the right medical expert and understanding the medical evidence is vital. We cannot emphasise enough the importance of instructing your own experienced lawyer.
Cases can be vastly under-settled when there is a failure to factor in the likelihood of developing a deteriorating condition such as arthritis. Motorcyclists beware. Never allow an insurer to appoint a lawyer for you. Instruct your own experienced lawyer and make sure you ask about the likelihood of future deterioration and the consequences of that. Failure to factor in risk of deterioration will result in significant under-settlement and will leave you exposed to an uncertain future.
Remember, legal representation is your choice and so always choose an experienced lawyer. You are entitled to ask about your lawyer’s experience and that includes whether they are qualified or not.
After all, it’s your future that's at stake.