1. Do I have a claim?
In order to succeed with a personal injury claim the claimant (the injured person) must establish liability, causation and loss.
In order to establish liability, you have to be able to show that the accident was someone else’s fault. This is done usually by establishing that someone else was negligent or in breach of a lawful obligation (e.g. health & safety legislation).
The test for causation is that the claimant must prove that there is a causal connection between the accident and the injuries caused – i.e. that the defendant’s negligence actually caused the injuries. In most straightforward personal injury claims the issue of causation will be clear
Compensation can only be obtained where there has been a loss. This can either be because you have injured or because you have incurred an actual financial loss as a result of the accident (e.g. loss of earnings, damaged clothing, taxi fares).
In summary, if you have been injured and it was somebody else’s fault you should be able to make a personal injuries claim.
2. What type of accident can I claim for?
You can get compensation for any type of accident provided you can establish liability, causation and loss. Of course, you also have to have a defendant that can pay any compensation you may be awarded. Types of claim include (but are not limited to):
Employers’ Liability (EL)
This includes accidents at work and in the workplace
Industrial Illness or Disease
This covers all types of illness and disease at work or caused by the working environment (e.g. asbestosis, deafness, mesothelioma, miner’s knee, pneumoconiosis)
Occupiers’ Liability (OL)
This includes accidents to people visiting buildings, premises or private or public land generally
Road Traffic Accidents
Comprising all accidents and injuries to do with motor vehicles, including collisions with other vehicles, and injuries to motorcyclists, cyclists and pedestrians.
If you have been injured because of a defective product you can usually get compensation from the manufacturer or retailer
This is where you slip or fall because of someone else’s negligence or failure to comply with the law
Unfortunately children can be very vulnerable to being bitten by dogs and can get some very serious injuries. If a dog has a history of biting then you may well be able to be compensated
Criminal injuries compensation
This is available where a person has been injured as a result of a criminal assault or other criminal act. This is a scheme run by the government. Each injury has a fixed tariff and generally legal costs are not paid additionally to the compensation.
3. What if I have had a road traffic accident but I don’t know who the other driver is or if he is insured?
Motor Insurers’ Bureau
The Motor Insurers’ Bureau (MIB) is a body set up and funded by the insurance companies to provide compensation in these circumstances. There are two schemes, called the MIB Uninsured Drivers’ Agreement, and the MIB Untraced Drivers’ Agreement.
If you are claiming against an uninsured driver, the MIB will step in and act as if it was that driver’s insurer. The MIB will pay you compensation plus your legal costs.
If you do not know who the driver was (e.g. if it was a hit and run accident), then you can make a claim to the MIB under the Untraced Drivers’Agreement. You can apply for compensation for your injuries and financial losses, but the MIB will only pay a nominal sum towards your legal costs.
4. How much will I get?
Your claim will be valued by reference to the severity of your injuries, how long it takes you to get better, whether you have any permanent disability, and how the accident has affected you generally (called “general damages”), and what financial losses you have suffered (called “special damages”). For an overview of the likely level of compensation for general damages, please see the Judicial Studies Board Guidelines.
General damages are monetary compensation awarded by a judge (or agreed by your opponents). They are intended to recompense you for (amongst other things) your injury and the pain and suffering this has caused you and also for any resulting physical or mental disability and the restrictions that this imposes on your way of life.
General damages are assessed by comparing previous court awards in cases with facts similar to your own.
Other examples of general damages include:
- compensation for being handicapped in the job market,
- for the loss of a congenial form of employment
- or compensation for losses and expenses that you are likely to incur in the future.
We will make an initial assessment of the value of your claim at our first interview. However, until your symptoms have completely resolved or stabilised, it is not possible to make an accurate valuation of your likely damages. General damages are valued by assessing the medical evidence. The Judicial Studies Board Guidelines provide guidance on the likely award brackets for each type of injury.
Special damages are compensation for the losses and expenses that you have incurred that can be arithmetically calculated. Special damages can include the following heads of claim:
- Accident damage to your property,
- lost earnings,
- medical and treatment expenses,
- the cost of care and assistance,
- transport costs
- and other items of expense which you have incurred as a direct result of the accident and/or the injury.
Damages are designed to compensate an injured party; a court will not allow a party to profit from the claim (i.e. to be put in a better position than before the injury).
- You have a duty to mitigate your loss. Which means that you must take reasonable steps to minimise your losses. For example: if your injury has prevented you from working, you must take reasonable steps to resume your pre-accident employment or to obtain suitable alternative employment as soon as reasonably possible.
- If you are deemed to be partly to blame for the accident, your entitlement to compensation (general or special damages) will be reduced to take into account the extent of your culpability (ie to reflect your own responsibility for the accident). For example, were a court decides that you were equally to blame for the accident then it is likely to reduce the total amount of your award by as much as a half. This is called contributory negligence.
We can advise you what kinds of damages you are entitled to, and their likely amount.
5. Will it affect my state benefits?
Personal Injury trusts
If you are in receipt of means assessed state benefits then the receipt of a capital sum may effect your entitlement to future benefits.
Capital up to £6,000 is disregarded in assessing means tested benefits. From £6000 to £16,000 a tariff system is in place where £1 of benefit is lost for every £250 of capital held. Capital in excess of £16,000 means that there is no entitlement to means tested benefit.
This means that even a modest award of compensation can reduce or extinguish your entitlement to state benefits (and don’t forget that if you already have some savings, then your compensation will be added to that when determining if you have crossed the £6,000 threshold). However, it is possible to set up a personal injury trust, which holds your compensation on your behalf (and where you keep control of the money), but because the money does not actually pass to you, your benefits should be unaffected.
6. How long will it take?
Most simple claims can be finished within 9 - 12 months. If it is necessary to start court proceedings then it will take longer, perhaps 18-24 months. The amount of time a claim takes depends on a number of things, such as:
- How long it takes you to get better or to reach a stage in your recovery that the doctors can predict how long your recovery should take. For example, your doctor may examine you 4 months after the accident but say he needs to see you again in 12 months time to be able to say how serious your symptoms are and whether there will be any permanent injury
- Some claims require us to investigate what happened before we can assess whether you are likely to win or not. If your opponent’s insurer takes a long time to provide us with access to the documents we need, this can slow things down. In that situation we may need to apply to the court for an order requiring your opponent to disclose its relevant documents to us
- Whether your opponent’s insurer accepts liability. If the insurer says the other person was not at fault then we will have to start court proceedings
- If court proceedings are started, these might persuade the insurer to settle the case quickly, but if the case goes to trial this will take much longer.
7. Will I have to go to court?
Most personal injury claims settle without the need to issue court proceedings. These tend to be cases where liability has been admitted by the other side. Sometimes it is necessary to issue court proceedings because an agreement cannot be reached on the value of your claim. Many claims that are issued are still capable of being settled without actually proceeding to trial. While about 30% of cases start the court process, only about 1-2% actually go to trial. The rest are settled before trial. You will only have to stand up in court and say what happened if there is a trial, and this is statistically very unlikely.
8. Will I have to pay anything?
Our view is that the client should pay nothing, either upfront or from his or her compensation.
We will never ask you for money upfront. However, if you ask us to conduct your case in a manner against our advice and where we think this will incur costs that cannot be recovered from your opponent even if you win, then we may ask you to guarantee you will reimburse us for that expense out of your compensation.
There are a number of ways to pay for the cost of legal representation. These include legal expenses insurance that you may already have, trades union funding, and legal cover provided by a motoring or professional organisation. If none of these are available to you then we can act on a conditional fee agreement (or “no win-no fee”). With all of these types of funding you should usually expect to pay nothing yourself.
9. How long have I got to bring a claim?
In personal injury cases, generally court proceedings must be started within 3 years from the date of accident. This is known as the limitation period. This period runs from:
- the date on which the cause of action accrued, ie the date of the accident, or
- if later, from the “date of knowledge” of the person injured
- Special considerations apply to persons who die from their injuries within the 3 year period and to children.
Other time limits:
- Aviation claims - 2 years
- MIB Untraced Drivers’ Agreement claims – 2 years
- Criminal Injuries Compensation (CICA) claims – 2 years
Only in exceptional circumstances can a personal injury claim be brought outside the statutory time limits.
For a CICA claim to succeed, the assault or allegation must be reported to the police as soon as possible after the incident occurs, and the injured person must co-operate fully with the police in the investigation and prosecution of the offence.
It is a good idea to make a claim as soon as possible following your accident. This is because the circumstances of the accident will still be fresh in your mind. Additionally the sooner we have details of your claim, the sooner we can advise you and start obtaining evidence and making contact with the insurance company of the person who is at fault.