We are very pleased to have recently achieved a settlement for a cyclist injured in France. Our client was injured whilst on holiday and cycling with his son.
On 26 July 2018 at about 5 pm, our client, Leigh, was cycling near Morzine, France, with his son. They had cycled to the top of Col de Joux Plan and were descending back towards Morzine. They reached a long straight section of the road which was on a slight incline with a bend to the left. As they approached the bend, Leigh’s son was ahead of him cycling on the far right hand side of the road. Leigh was cycling behind him but slightly offset to the left so that he could see ahead (albeit still on the right-hand side of the road).
As Leigh and his son reached the bend, the defendant came around the bend at speed from the opposite direction and encroaching onto the wrong side of the road. The defendant’s line of travel as he came around the bend meant that his car was travelling towards Leigh and his son. Leigh tried to swerve to avoid the defendant’s vehicle but it’s collided with him, causing him to come off his bike, spin in the air and suffer injuries as set out below.
French law applied to the accident. In accordance with Art. 1240 and 1241 of the French Civil Code together with Art. 3 of the 85-677 Act, the defendant was responsible for the accident as Leigh’s injuries were caused by the defendant’s insured vehicle as he was driving it. Furthermore, the accident was the defendant’s fault.
Leigh’s injuries were significant and expert reports were obtained in a number of fields. Leigh suffered from a fracture of the left thumb, an injury to the left shoulder, a deep laceration to the right thigh, injury to the pelvis including a sacral fracture, ow back fractures to L1, L3 and L5 and Post-Traumatic Stress Disorder. He also suffered from a mild traumatic head and brain injury (his helmet was cracked in the accident).
At the time of the accident, Leigh worked as a consultant in construction and required significant time off before returning part time. He required assistance with domestic and household tasks. He is restricted in his hobbies of cycling, long distance walking, swimming and skiing. He has been unable to return to his pre-accident work levels.
Challenges of litigation
It is fair to say that the conclusion of Leigh’s case was not straightforward, and the defendant’s insurer (and solicitor) played hardball at many points in the litigation, including challenging the effectiveness of the service of the court proceedings. This led to lengthy application before the court, the decision of which is now being referred to in a number of cross border litigation cases. In this case, the issue for the Judge was whether Leigh required permission to serve out of the jurisdiction on the defendant, who had actually nominated solicitors in England and Wales to accept service. The Judge dismissed the defendant’s application on this ground as where a foreign defendant nominates solicitors to accept service in the jurisdiction, there is no need for a claimant to apply for permission to serve out of the jurisdiction. The judge then went on to confirm that the forum non conveniens (appropriate jurisdiction to decide the case) burden shifts to the defendant where permission to serve out of the jurisdiction is not required. The court can exercise its inherent discretion to decline jurisdiction if there is a challenge by the defendant. However, the defendant must show there is a clearly or distinctly more appropriate forum.
The case outcome
Following the resolution of the defendant’s application and the return to the usual litigation, the parties were able to engage in settlement negotiations and the claim was settled for a six-figure sum, allowing Leigh to move on from the accident and concentrate on his recovery.
Tim Kirfield was the lead fee earner in the case and the team included Alex Carington, Barrister at 12 King’s Bench Walk.
How Moore Barlow can help
Achieving appropriate compensation is often complex, and requires exceptional legal support. Our specialist serious injury lawyers offer legal services within the UK and abroad from offices in London, Richmond, Southampton, Guildford, Lymington and Woking. We can offer anyone struggling with personal injury, specialist support and expert advice. Contact our personal injury team for more information.