With JMW's help, a woman who suffered partial loss of smell as a result of a collision with a car whilst on her bicycle, has received £19,000 compensation.

The case

Ms S was proceeding around a roundabout on a Brompton bicycle, preparing to turn right.  As she reached her exit and indicated left, a motorist did not see her, did not change their path and drove into her. Ms S decided to make a claim for her injuries and was put in touch with JMW Solicitors. 

The claim

Although the police were called to the scene, we found out that there was no police report, and despite the police taking witness details, these had not been retained. 

As Ms S had not been able to get the driver’s details at the time, we wrote to the DVLA, who were able to supply the vehicle’s details and help determine the identity of the car’s driver.  We then wrote a letter to the driver, telling them of Ms S’s intent to claim.  The driver responded to us with details of their insurer, and we re-directed the letter there. 

The insurance company responded.  They accepted that the driver was responsible for Ms S’s accident. 

Ms S’s injuries

Ms S confirmed her medical symptoms to us.  She suffered whiplash, bruising to legs and lower back, a cut to the back of her head, concussion, and shock.  However, she also suffered anosmia; a total loss of the sense of smell, as the result of her head trauma. Unlike her other injuries, this had not resolved after the accident and was still on-going. 

We, therefore, asked an independent Ear, Nose, and Throat specialist to examine Ms S and provide an independent report on the loss of her sense of smell, and an independent orthopaedic surgeon to provide a report on her other injuries. 

Ongoing symptoms

The Ear, Nose and Throat specialist confirmed in his report, two years after the accident, that Ms S could only smell really strong scents, and couldn’t detect them in the “normal” way, they smelt different to her.  This is known as hyposmia; a partial loss of smell.  The report confirmed that this happened as a result of the head trauma caused by the accident, and that it was unlikely that Ms S will ever fully recover. 

Meanwhile, we also received a report from the orthopaedic surgeon, which verified Ms S had made a complete recovery from her other injuries.  We took a witness statement from Ms S, about her accident and how her loss of smell affected her life. 

Agreeing compensation

We sent the medical reports to the driver’s insurers to encourage them to start negotiating a settlement.  However, they wanted Ms S to bear a proportion of responsibility for her accident as she was not wearing a helmet.  They asked the orthopaedic consultant to provide his opinion on this, based solely on Ms S’s accident circumstances.  The expert agreed that the nature of Ms S’s injuries wouldn’t have been as severe if she had been wearing a helmet. 

The insurer then said that Ms S should bear 25% of the responsibility for her accident, so any compensation figure should reflect this.  They put forward an offer of £18,000 gross to settle her claim, which would mean that she would receive £13,500 net. 

We felt this was too low for Ms S to accept.  We conducted significant research on cycling case law regarding previous judgments that had been passed on cases where the defendant had tried to allege a cyclist should bear a measure of responsibility for their injuries for not wearing an accident.  We used this to help us put together a counter offer on Ms S’s behalf.  This then encouraged the insurer to engage in a negotiation process with us; they eventually agreed to our offer of £19,000 to settle the case. 

This settlement represented an acceptable compromise based on similar laws for a time when motorbike helmets were a legal requirement, and gave us a position on which to base our recommendations to Ms S.  Ms S was delighted with the settlement figure we had been able to achieve for her.  

The Claims Process

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