Over the last 20 or 30 years there has been a significant increase in the size of the personal injury claims market. While much of this is to do with advertising and educating consumers on their rights, many people are still not fully aware of the process. We will now take a look at the process of pursuing a personal injury claim, what you need to do, the information required, and who can assist you.
The law of tort
Tort law in its most basic form means that in order to pursue compensation, you need to prove negligence on behalf of one or more parties. It is irrelevant whether you have a degree of shared negligence, if you can prove one or more parties were negligent then you can claim compensation.
What is the difference between negligence and an accident?
There has to be a definition which differentiates negligence and accidents. Not every accident can be attributed to negligence and therefore not every accident will attract compensation. So, what is the difference between negligence and an accident:-
An accident is often described as an “unfortunate happening”, which occurred unintentionally even though it resulted in harm, injury, damage or loss.
The four elements which need to be proved to establish negligence:-
- There was a legal duty of care on the other party
- There was a failure/breach of this duty of care
- There was a connection between the conduct of the third party and the accident
- There were actual losses/damages as a direct result of the accident
If you have looked into previous personal injury claims, you will no doubt have seen some accidents which were quite simply, accidental. Then there are others where various parties had a legal duty of care which they failed to fulfil. It is the ones in between, where there is a shadow of doubt on either side, which can be most difficult to prove.
What should I do if I am involved in an accident?
If you believe that you have been injured as a consequence of the negligence of one or more third parties, you may be eligible for compensation. Obviously, the first thing to do is seek medical treatment as soon as possible. The degree of treatment required will vary significantly; some injuries may be physical while others may be psychological. At this point it is worth noting that the law recognises both physical and mental injuries on a par. As a consequence, in theory it is just as possible to seek compensation for psychological injuries as it is for physical injuries.
When you are in a position to do so, you should then look to gather evidence to support your claim of negligence against for example your employer or any other third party.
What kind of evidence will I need for a personal injury claim?
The more evidence you can provide to your personal injury claims solicitor the better. The evidence available and required will vary from case to case. However, these are some of the more common elements of evidence used to prove a personal injury claim:-
- Medical records
- Details of medical treatment
- Photographic evidence
- Witness statements
- Evidence of repeat offences
- Lack of training
- Lack of safety equipment
- Badly maintained machinery
- Timeline of events
- Communication between parties
This list is by no means exclusive, although it does give you an idea of the type of evidence more commonly used.
Is there a time limit on claiming compensation?
There is a basic three year time limit in which to lodge a claim for compensation. Importantly, this time-frame relates to the lodging of the claim as opposed to the settlement of the claim. In the vast majority of accidents involving physical injury, diagnosis is often made on the same day. However, there are occasions where injuries, medical conditions and psychological damage are not always obvious immediately.
If for example we look at asbestosis, we know that many cases are not diagnosed until 20 or 30 years later, after first being exposed to asbestos. Therefore, the three year time limit would not begin until there has been an official diagnosis.
In the event that the incident involved a minor, either a litigation friend can pursue compensation on their behalf, or they can wait until they are 18 years of age. If they decide to wait until their 18th birthday the three year time limit will start on that day.
Approaching a personal injury solicitor
The next thing to do is approach a personal injury solicitor with details of your case, and any supporting evidence. They will review the information provided and give you an assessment of your chances of success. Where they believe you have a good chance of success they will likely look to take on your case. At this stage they would probably offer a No Win No Fee arrangement. This would effectively indemnify the claimant from costs incurred by the solicitor, when pursuing the case. In exchange, they would look to negotiate what is known as a success fee.
What is a success fee?
A success fee covers a share of any compensation award, to be passed to the solicitor. The average figure for a success fee is around 25% but it can vary from case to case. Even though personal injury solicitors only offer No Win No Fee arrangements where the chances of success are tilted towards the claimant, there are no guarantees with legal action. Therefore, if your solicitor were to lose the case they would need to cover their own expenses.
What if the chances of success are estimated to be low?
While it is unlikely that a personal injury solicitor would take on this type of case, on a No Win No Fee basis (it doesn’t hurt to ask), you can still pursue compensation in your own right. The claimant could appoint the personal injury solicitor, and cover their own expenses, or pursue compensation with no outside assistance. While it is fair to say that personal injury solicitors do not always get their success estimates right, they tend to have a relatively high success rate. So, if a solicitor is suggesting your case is weak, it may be worth giving this serious consideration.
Lodging a claim for compensation
Once you have come to an agreement with a solicitor, it is now time to lodge your claim for compensation. A copy of your evidence and details of your case will be forwarded to the defendant. The defendant or their representatives will have 21 days in which to respond, and a further three months in which to gather their own evidence. They must inform the claimant of their decision prior to this deadline.
If the defendant accepts negligence, then the next step would likely be an out-of-court settlement. This would reduce the defendant’s legal expenses, and ensure that the claimant received their compensation as soon as possible.
There will be occasions where the defendant refutes the claims of negligence, and therefore claims of compensation. Assuming that the claimant still wishes to proceed, these cases tend to go to court. A judge would hear evidence from both parties and then make a ruling on negligence, and compensation where applicable.
Accepting negligence, unable to agree compensation
There will also be occasions where the defendant accepts negligence, but no out-of-court settlement can be reached on compensation. This is yet another scenario which would likely involve the courts and a ruling by a judge. Where the claimant had offered an out-of-court settlement, but the defendant had been unable to agree a settlement, the judge has discretion to add 10% to any compensation award.
On occasion the claimant may seek to withdraw their case, in the event that new evidence emerges from the defendant. This is unlikely, because your personal injury solicitor should have done their homework and been fully aware of all scenarios. However, it is not beyond the realms of possibility.
The process of beginning a personal injury compensation claim, to the receipt of compensation, can take months if not years in highly complex cases mainly. When it comes to receiving compensation, there are two traditional scenarios:-
- An out-of-court settlement would likely lead to payment within 14 days of accepting the offer
- A court settlement would likely lead to payment within 21 days
This is by no means set in stone but does give you an idea of the timescale, once negligence has been accepted or proven, and compensation has been agreed.
How do I secure an interim payment?
There will be occasions where the claimant is facing financial distress directly as a consequence of costs related to the accident. Where negligence has been agreed and compensation will be paid, but has not yet been agreed, it may be possible to request an interim payment. This could either be via an out-of-court agreement or, if required, a judge could make a ruling. This type of arrangement tends to be more common with large compensation payments, which can often take some time to agree.
Seeking further compensation for new injuries/illness
Once you have agreed a level of compensation, this tends to be a one-off payment. It is unlikely that you would be able to go back to court to claim additional compensation for new injuries/illness, even if they were directly related to the accident. This is why many of the more complicated medical claims can take years to settle. There are occasions where additional complications can emerge further down the line, which would also normally warrant a degree of compensation.
The process of seeking compensation is fairly simple in theory but often a lot more complicated in practice. This is why more and more people are now using personal injury claims solicitors to help prove negligence and secure maximum compensation. The UK legal system can be a minefield, especially for those with little or no experience, which is often where personal injury solicitors come into their own.