Legal Frequently Asked Questions

These legal questions have been answered by our resident Legal Eagle in recent issues of our Newsline Magazine. Please be aware that it is not possible to answer your queries directly. Please raise any legal queries you have either by email: info@sisonline.org or phone: 0800 0132 305
Question:
I had been out for a few drinks with my workmate on a Friday night and stepped out on to the road in front of a car. I was knocked down and suffered serious injuries. I don’t think I’ll ever be fit enough to return to my job as a joiner. The car that knocked me down was an old Ford Fiesta. I doubt the man driving it will have much money. Is there any point in me claiming against the driver if he hasn’t much money himself?

Answer
It does not matter how wealthy the driver is. There is a legal requirement for every person driving a vehicle on a public road in the UK to have motor insurance. If you make a claim for damages against the driver, your claim will be dealt with by the driver’s insurance company. It will be the insurance company that pays any damages to you. If a driver has no insurance, you are able to direct your claim to the Motor Insurers’ Bureau (MIB). The MIB was established in the 1940s to compensate victims of negligent uninsured or untraced motorists. The MIB is funded by all UK motor insurers.

Question
My daughter has suffered a severe injury which affects her arms and wrists. She cannot write. She has been
unable to sign her name. While she is in hospital, I am trying to deal with her finances for her, but she can’t sign anything to confirm that I have her authority to deal with her bank account or pay her bills for her. Is there anything I can do so that I can deal with her affairs for her?

Answer
It would be worthwhile having your daughter grant Power of Attorney to you or any other person that she trusts. Power of Attorney is an authority given by an individual to another person to deal with their affairs on their behalf. This could relate to financial affairs and/or personal/welfare matters. Because your daughter will be
unable to sign the documents granting Power of Attorney, it may be possible to have a solicitor who is also a Notary Public notarise the documents on her behalf, so that she does not have to sign anything. More information on Power of Attorney can be found on the Office of Public Guardian (Scotland) website at www.publicguardianscotland.gov.uk

Question
I have recently taken legal advice about making a claim for compensation. I’ve heard from friends that it can take years before compensation will be paid. I just don’t know how I’m going to manage financially. My employers have been good and paid me in full for the first three months I’ve been off work, but now I’m only getting Statutory Sick Pay. But it could be months before I’m able to go back to work. Is it normal for it to take years before compensation is paid? Is there anything I can do to get compensation now and not have to wait?

Answer
The length of time it takes to conclude your claim will depend on the circumstances of your case. If liability (fault) is in dispute then it may be necessary for the court to hear the evidence in your case in order to make a decision on whether compensation should be paid. If you have suffered a serious injury, then it will take time for your solicitor to gather all the evidence relating to your injuries and losses. You should discuss with your solicitor the likely timescale for completing your claim. If liability is not in dispute, your solicitor should request the negligent party to make interim damages available to you which will alleviate your financial pressures. Once a court action is raised, the negligent party can be ordered to pay a reasonable proportion of the total value of your claim to you. However, if liability is denied or if you are likely to be found to have contributed to the accident to a considerable extent, it may not be possible to obtain interim damages. Again, you should discuss the possibility of interim damages with your solicitor.

Question
I was seriously injured in an accident about one year ago. I was sitting in my car which was parked next to a pavement. My wife was in the butcher’s shop and I was sitting in the car waiting for her to come back. All of a sudden, a car just crashed right into my parked car. It just seemed to come from nowhere. I was so badly injured that I was not able to speak to the driver after the accident. I was taken away to hospital in an ambulance. I have thought about making a claim for compensation, but I have heard locally that the driver had taken a hypoglycaemic (or diabetic) attack while driving and he cannot remember anything about the accident. Apparently, he had driven for two miles before his car hit mine! I suppose it was not the man’s fault that he had taken unwell while driving. Would compensation be paid if the man was unwell and couldn’t prevent his car crashing into mine?

Answer
From what you say, yes, you are likely to succeed with a claim for compensation. The court would apply a test to determine whether the man was ‘driving’ at the time of the accident. The court would consider whether the man was in conscious control of the vehicle and whether his movements were voluntary. A number of cases like this have gone before the courts in the past, where the driver has pleaded a defence of ‘automatism’. This expression in law means a complete loss of consciousness. For a defence of automatism to succeed, there must be a total destruction of voluntary control on the part of the driver. Impaired, reduced or partial control is not enough for the defence to succeed. If the court finds that there has been some degree of control during the journey of the car, a defence of automatism is unlikely to succeed.That means that compensation will have to be paid to you.

Question
My step-daughter is learning how to drive and she asked me to take her out in my car for a lesson. I organised the insurance. I had taken her out for a few lessons. However, on our last lesson, she stopped at a junction and was about to turn right. She let the clutch out too quickly and didn’t have enough time to straighten up. She crashed into a bus stop. I was injured as a result of the accident. I wondered if I would be entitled to compensation when I was supposed to be in charge of her. Will the insurance company say that it was my own fault as I did not manage to straighten the steering wheel for her?

Answer
I doubt the insurance company could escape liability by placing the whole blame on you for the accident. The driver, whether learner or qualified, owes a duty of care to all persons on the road, whether drivers or passengers in vehicles, pedestrians or otherwise. The driver owes that same duty of care to the instructor. However, an instructor may be found to have contributed to the accident if he or she has not been quick enough to correct errors. This is called contributory negligence. If the instructor has been found to have contributed to the accident by not reacting quickly enough, the court will make a percentage deduction from the award of damages to reflect the extent to which the instructor contributed to the accident. In previous cases involving learner drivers, the court has found that an instructor and learner driver are jointly concerned in driving a car and they must maintain the same level of control over the car as an experienced and skillful driver.

Question
I was cycling on a bike trail a few months ago. Next to the bike trail, there was a burn. I could see a trail on the other side of the burn and decided to ride my mountain bike across the burn to get to that part of the trail. The burn looked pretty shallow but, about half way across, the bed of the burn dipped quite a bit and the water turned deeper. I lost my balance and fell on to rocks. I hurt myself badly. I have complained to the owners of the bike trail. I think they should put a fence up or at least warn people about the depth of the burn to prevent an accident like this happening again. The owners have told me that they do not have to put anything up. So, I have told them I am going to sue them. They told me to go ahead because, in their view, I don’t
have a leg to stand on. Should the owners have fenced off that part of the burn or put warning signs up?

Answer
The Occupiers’ Liability (Scotland) Act 1960 places a duty on owners and those who have control over land to show reasonable care for persons entering on to their land. The duty of care to be shown to a person entering onto the land or premises is to take reasonable care to see that the person does not suffer injury. What is reasonable will depend on the circumstances of each case. The burn is likely to be considered a ‘natural hazard’. There is fairly consistent authority from the Scottish courts that a land owner need not take steps to fence off natural hazards such as river banks or cliffs. In a Scottish case in 2007, the court confirmed that the general law remained as stated in back in 1908 – that an occupier of land containing natural phenomena such as rivers and cliffs which present obvious dangers are not required to take precautions against persons becoming injured by reasons of those dangers unless there are special risks such as unusual sources of danger. I do expect that a court would consider the river to be a permanent, ordinary and familiar feature of the landscape which does not need to be fenced off. The depth of burns and rivers change and the change in depth would be seen to be a normal feature which one would expect to find when attempting to cross the water.

Question
My parents are now in their 70s and my dad’s health has deteriorated over the last few months. He has developed severe dementia. The social work department has become involved and, at our last meeting with the social worker, it was agreed that my dad would have to go into a care home. My mum just can’t cope with looking after him on her own. But my mum is beside herself with worry that she will be forced to sell their home to pay for dad’s care home fees. Can you tell me if she will have to sell their house?

Answer
The Charging for Residential Accommodation Guidelines (CRAG) which can be found on the Scottish Government website will provide the answers to questions
you have about charges for residential care. For the situation you describe, you should consider section 7.003, which confirms that where a resident no longer occupies a house, its value should be disregarded where it is occupied in full or in part by:
• the resident’s partner or former partner (except where the resident is estranged or divorced from their former partner)
• a lone parent who is the resident’s estranged or divorced partner
• a relative of the resident, or a member of their family who:
– is aged 60 or over, or
– is aged under 16 and is a child whom the
resident is liable to maintain, or
– is incapacitated
Section 7.007 also confirms that where the local authority considers it reasonable to do so, they can disregard the value of the house in which a third party continues to live. Local authorities will have to balance the use of this discretion with the need to ensure that residents with assets are not maintained at public expense. It may be reasonable, for example, to disregard a dwelling where it is the sole residence of someone who has given up their own home in order to care for the resident, or someone who is an elderly companion of the resident, particularly if they have given up their own home.

Question
I was badly injured in an accident when I was helping out my friend who owns a caravan park. He needed to move a couple of caravans on to new plots. My pal owns a tractor which he uses for work around the caravan park. He was using his tractor to tow the caravans to their new plots. I was standing on a plot, shouting directions to my pal who was driving the tractor, so that he could guide the caravan into place. My pal reversed too quickly and I was hit and knocked over by the tractor. Because of my injury, I doubt I’ll be able to go back to my job as a plumber. My pal feels terrible about the accident and has made enquiries with his insurers to find out if I can make a claim against his insurance policy. However, the insurance company say that, because I wasn’t an employee and only helping him guide the caravans into place, I can’t make a claim. Can you tell me if this is right enough?

Answer
It sounds like your friend has enquired with his Employer Liability Insurer about a possible claim. The policy will protect only employees of your friend’s business and will not extend to people who are “doing a favour” for your friend. However, if your friend has motor insurance over his tractor, you may be able to make a claim against the motor insurers. The law has changed quite drastically recently so that it may well be possible to bring a claim against a motor insurer when the accident has not happened on a public road but on private land. In addition, it may also be possible to make a claim against the motor insurers even when the tractor was not being used simply to transport someone, but was being used as a piece of machinery to tow the caravan into place. The European Court of Justice issued a decision last year (Vnuk v Zavarovalnica Triglav) which concerned a Slovenian national who was injured when a tractor with a trailer attached reversed in the courtyard of a farm. The trailer struck a ladder, which caused a man to fall from the ladder and suffer injury. In that case the European Court of Justice decided that the requirement for compulsory third party motor insurance must extend to cover:
• any motor vehicle;
• any use of that motor vehicle (provided that use is a normal function of
that vehicle); and
• anywhere in the Member State
You should ask your friend if he has a policy of motor insurance for the tractor. If he has motor insurance for the tractor, you should make a claim with that insurance company. If he does not have insurance for the tractor, you may still be able to make a claim to the Motor Insurers’ Bureau, which is a body that compensates victims of negligent, uninsured motorists.

Question
My husband was knocked down by a car about five weeks ago when he was on a works night out. He has been in a coma in hospital since the accident. Our child benefit and child tax credit were paid into his bank account. His employers are continuing to pay his wages into his bank account. I have my own separate bank account. I have not been able to go to work as I am visiting him in hospital each day. My employers are paying me statutory sick pay at the moment. I’m in financial dire straits. I’m making applications for the benefits to be paid into my bank account instead, but it will take weeks to get sorted out. We have biffs to pay and I’m trying to make ends meet from my SSP. I went to the bank to explain the situation, but they have been no help at all. Is there anything I can do about this?

Answer
This is not an uncommon problem, I’m afraid. The Office of Public Guardian operates an Access to Funds Scheme which allows a person to access funds of an incapable adult It is used as a temporary measure and would allow you to pay day-to-day living expenses, including utility bills. More information on this Scheme can be found on the Office of Public Guardian website: www.publicguardian-scotland.gov.uk

Question
I was a passenger in a car being driven by my friend. We were at a roundabout and my friend crashed into the car in front of vs. I think she was so busy texting me a story about someone from her work that she wasn’t paying attention to what was happening on the road ahead of her. I hurt my neck and back in the accident. I had not thought about making a claim for compensation, but I then got a phone calf from my friend’s insurance company telling me that they will appoint and pay for a solicitor to make a claim for me. But I can’t get my head around why this insurance company is trying to get me to make a claim when they would be paying the
compensation. Can you explain it to me?

Answer
I can understand why you ask that question. Most people feel uncomfortable at the thought of the person who is ultimately going to pay the compensation appointing a solicitor on your behalf. A lot of drivers have legal Expenses Insurance as part of their motor insurance policy, although most people do not know that this section of the policy also covers passengers in the car. It is a matter for each person to choose whether they perceive a conflict of interest arising when the person you are claiming compensation from also appoints your solicitor.