No Win/No Fee Lawyers

[KathDayKnight50]

Asking for a relative. Daughter was knocked down by bus and in a coma - has come out of a coma with a brain injury. No idea if she'll ever live independently again.

The insurance company is blaming Daughter for accident (80%) blame. She did have alcohol level found in blood. No witnesses at all even though it was a busy highway! Some strange bits of story but with no witnesses it is driver's word only. Daughter has amnesia surrounding accident.

Relative has contacted a No Win/No Fee lawyer.

This is what Relative emailed me:

I am terrified of the costs. I did ask for Pro Bono & he agreed but I got letter stating "Costs in court proceedings are taken on your behalf,the court may order the other party to pay your costs of the proceedings.This sum will not necessarily cover the whole of your legal costs due to us. It is possible that the court may make an order that you pay the other party's costs if you lose the case. These costs are payable by you to the other party in addition to the costs payable to us."

Could someone explain it in layman's terms for us, please?

Could we ask if the lawyers could give us an idea of likelihood of winning? They surely wouldn't take case if no hope of winning? Relative really has no money to offer up if case loses. What happens then?

Sorry to be so ignorant. Never been involved with anything like this before.

Thank you in advance for your time and patience

Did the police not get any cctv footage if it was a busy highway at the time.? Was the bus driver prosecuted for dangerous driving? Did no one on the bus see anything? Sounds like 50/50 chance of winning if there really were no witnesses .

Most buses now have cctv on the front and back of them.

Has your relative asked for a copy of the cctv?

Were there any independent witnesses? Buss passengers or pedestrians?

Sorry I should have mentioned no CCTV. I think it was broken? And not legally required apparently. Also, driver said a doctor and nurse came on scene whilst he was calling ambulance. They check the victim and made her comfortable but then left as ambulance came. So nothing from them. The bus was a private one carrying schoolchildren at 4pm and none of them seem to have been asked for a statement. Police report skeletal. I suppose they saw alcohol in the blood and wrote it off there and then.

Bus driver wasn't speeding according to police.

Victim was crossing a four lane highway. Bus was fourth lane along and last lane she was crossing. So he should have seen her crossing the previous three lanes from a mile off?

Bus driver wrote a statement. His age/DOB do not tally and he wrote wrong day of accident down!

Basically it means if you win the judge might ask the other side to pay all, your costs or might only ask them to pay some of the costs. If you lose you may have to pay the other sides cost as well as your own.

Wad she crossing the highway at a crossing point? Is it legal to cross a four lane highway? I would be checking that up in the town laws before I would do anything else

This sounds like a standard wording on an initial instructions letter.

Personal injury solicitors usually get conditional fee agreements in place for no win no fee cases and sometimes insurance on such cases to cover their own spiralling legal costs. However, if your family member took the case on and lost they would potentially be responsible for the legal fees of the other side (in this case the drivers legal team via the insurance company).

Has there been any criminal proceedings? If not, I would strongly consider whether it is worth it. I know you said there is no evidence either way, but crossing a four lane carriageway, with alcohol in your bloodstream, you would have to be cautious given the level of traffic.

The family need to clarify the position with the current solicitors and see whether they believe the Courts would, on the balance of probabilities, find against the girl or the driver. And if they do find 80% liability from the girl, then it may cost the family money, rather than receive compensation.

Assuming that the injured party does not have the capacity to pursue the claim on her own due to her injury, she will need to be represented by a litigation friend, presumably her mother.
The solicitors will investigate and tell her the prospect of succeeding before taking formal legal action against the bus company. If the prospects of winning the claim are not more than say 50%, the solicitors will tell her this and not charge for any work done so far - hence "no win/no fee"
If the solicitors think they have a more than 50% chance of winning, and cannot agree settlement with the bus company, they are likely to issue proceedings to try and win compensation for the injured person.
If at Court she does not win compensation, her solicitors will not charge her for their work - no win/no fee. The bus company, may at this point be entitled to seek their legal costs from the injured person, the injured persons' solicitor will normally be able to advise on this, rules have changed vastly since I last practised, it used to be the case that you could take out insurance to guard against paying the bus company's legal costs, I think this may have changed but her solicitor should be able to explain this in detail.
Good luck with this, it sounds like a very nasty injury.

There is a difference between Pro bono and No win No fee
This doesn't actually look like either

Thank you all so much for your time with this issue. Very generous of you all.

Jaywalking is a thing in the country it happened. However, the bylaws of the area she crossed were not covered at that point. This is just from our amateur checking - I don't know what the lawyers would say.

No criminal proceedings taken place.

The person who has Power of Attorney is the one who is contacting lawyers. They have no money and no assets so not sure how they would pay costs if it came to that. What would happen then?

Driver said girl "ran across road leaving him no time to stop". Yet, girl was obese, never ran, was not late for anything, had a bad knee (?arthritis) which sometimes needed strapping up.

Normally the actual person ie not the Attorney would be liable#

That's a tricky one.

Did she usually cross there? Where was the nearest pedestrian crossing? What is the speed limit on that stretch?

Tbh if a pedestrian is crossing 4 lanes of traffic at a place with no crossing I would presume the speed limit to be quite high, and therefore a vehicle would not be preparing to stop, so quite likely their stopping distance wouldn't allow them to safely stop in time.

I worked in insurance for years and wouldn't want to predict the outcome of that one.

If the bus was not breaking the speed limit and there was no pedestrian crossing then I would not put my money on your relative winning, as I wouldn't consider the bus driver to have been negligent. However if a pedestrian is trying to cross 4 lanes of traffic with no pedestrian crossing and with a high speed limit then it could be argued that they were negligent.

It was just along from her place of work. She'd worked there years. There was a pedestrian crossing approximately 100 metres or so from where she actually crossed and was hit. She would have crossed the road many times before. I don't know if she was in the habit of not bothering to use the crossing or was this a reflection of the alcohol she had consumed on this occasion.

The speed limit on that stretch is 60kmh/40mph. Driver said he was doing about 30kmh/18mph.

He had to draw a diagram for police and there is no indication from driver about whether other three lanes of traffic were moving or stationary. However, this was not at a crossing so likely cars were moving?

Another relative doesn't think the other cars were there at all (since no-one else seems to have come forward as a witness) and that maybe driver's drawing was just representing that these were three car lanes (but not necessarily in use).

It's all terribly confusing!

Sorry OP, but based what you've said it doesn't look good for your relatives.

Thanks, cheesefield it is kind of you to give this your time and expertise. I will pass your thoughts onto them. As you can imagine, this girl's mother has been to hell and back recently and she just doesn't know what to do about this court stuff. She looks to me for advice but to be honest I am completely ignorant of these things and don't want to say the wrong thing and add to her woes.

Thank you!

lawyers do not generally take on cases on a no win no fee basis unless they think you will win. We don't typically like working for free. Sometimes we will but this doesn't sound like the sort of case someone would take on a pro bono basis.

But in any case, even if a lawyer agrees to take on the case on a no win no fee basis or a pro bono basis, you would still remain responsible for the other sides costs if you lost.

What country are they in? It might be worth researching some RTA caselaw from that country.

If you can look for some examples of similar incidents involving pedestrians you can see how they were handled and what the outcome was, to see if there is any argument that could be successful. In the UK we use the Bingham & Berrymans book to look up examples of caselaw. They might have something similar.

The insurance company cited a couple of cases which did not seem relevant to me. (What would I know though?!) It just seemed off to me, though they are the experts not me of course.

For instance, they cited a case of a toddler running between two parked cars (not crossing the road from the other side) and going straight under the wheels or a vehicle. There was something about "if drivers had to expect the unexpected at all times, they would not be able to function". Seemed odd to me.

The family are in Oz.

Not quite the same and in the UK but in case it helps my aunt was knocked down by a driver when she was crossing the road. Because there was a pedestrian crossing 100 metres away that she had not used her family was advised there was no case against the driver.

Thanks, MrsWobble3 - I reckon that would be the same for my relative too. Sorry about your aunt

Name change fail. I didn't want to put too much family stuff all under one name. No harm done though!

Yes as user says if she loses then she has to pay the other side's costs. If she wins certainly in some kinds of cases in England the conditional fee uplift of her own lawyers' costs comes out of her damages even if she wins. Also even in cases without conditional fees and even if you win you usually just get about 2/3rd of costs and have to pay the rest.

However I presume she could take out an insurance policy against paying the other side's costs were she to lose and that they would be likely to negotiate a settlement eg she may be 50% liable and get half the damages she otherwise might get. It sounds serious injury and I am very sorry about it. So the damages were she to win could be quite high which is important as in cases with not much likely to be won the costs could be a lot and wipe out all the gains.

She should check if she has any insurance that already covers her legal costs by the way.

So what that paragraph means is that if she loses she has to pay the other side's costs. (But as I say she can insure against that)

Sorry I just noticed they are in Australia - so ignore everything I wrote about English conditional fee arrangements etc. however the same point seems to apply there - if you lose you pay the other side's costs.

Thank you, Xenia, for taking the time to reply. This is all useful information for me to give to my relative so she can decide whether to pursue or not. Thank you!

Hi, I can't help with the lawyer/ court side of things but wondering if her family have contacted TAC/ put a claim in (www.tac.vic.gov.au/what-to-do-after-an-accident/who-can-claim-with-the-tac) since they are in Australia?

Thank you, user I have a feeling her mother claimed this already, but I will just double-check with her. Thank you so much