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How to bring a serious personal injury claim
Bringing serious personal injury claims can be a daunting and stressful experience. It can be even more daunting in cases of serious personal injury because you and your close family may still be having to deal with the often devastating physical and emotional consequences of the serious injury. We recognise that there will often be cases where the sufferer of the serious personal injury may not be able to bring the claim themselves, and we are fully prepared and happy to work closely with family members who act on their behalf.
The legal system in this country is complicated, and is not user-friendly. It is changing all the time. Some of the principles which the courts apply in considering serious personal injury claims are confusing and difficult to understand, and a serious injury often involves more technically demanding compensation claims than ordinary personal injury. Our specialist personal injury lawyers will do their best to explain the processes to you in an understandable way.
Whilst in most cases, damages for serious personal injury compensation are sought, we recognise that this may not always be the desired outcome. Perhaps you just want an apology, or you want to ensure that the same mistakes do not happen again to others.
1. To recover damages for serious personal injury sustained in an accident, you will have to show the following:-
- that the accident occurred wholly or in part through negligence on the part of your opponent.
- that the accident has caused the injury, loss and damage in respect of which you are seeking compensation.
- that the injury, loss and damage you have sustained was a reasonably foreseeable consequence of your opponent's negligence.
3. Most accident claims are resolved by negotiation rather than by trial. The advantages of a settlement over a trial are that the claim can be concluded that much more quickly, and the outcome is one which you have had an opportunity to consider. At trial, the evidence does not always go the way one expects it to, and surprising results do occur.
In acting for you, we will do our best to negotiate a settlement of your claim on the best terms available, while at the same time pursuing your claim to trial without delay.
4. We will advise you of any areas of difficulty there may be in your particular case, in establishing negligence on the part of your opponent, or causation of your injury.
5. Your claim for damages may include the following:-
- any financial loss or expense you have suffered, for example the cost of repairing a car, prescription charges, travelling expenses and telephone calls, medical treatment.
- in particular, any lost earnings through having to take time off work following the accident.
- all anticipated future loss and expense, including any loss of earnings which is likely to arise in the future.
- damages to reflect any disadvantage you may suffer in the future in seeking employment.
- damages to reflect the pain, suffering and restrictions caused by your injuries. In the case of serious personal injuries, this can often form a large part of any damages awarded.
- if your claim arises as a result of the death of someone close to you, you may be entitled to damages for bereavement.
7. Where you have been in receipt of welfare benefits as a result of your injuries, the Department for Work and Pensions has the right to deduct from your claim the benefits which you have received up to the date on which your claim is concluded, or up to five years from the date of the accident if earlier. The benefits are recouped from the different heads of loss for which you are claiming, on a 'like-for-like' basis. For instance, benefits you have received because you have not been working (such as Income Support) can only be recouped from any sum you recover for lost earnings.
8. You have three years in which to commence Court proceedings against your opponents seeking damages for serious personal injury (two years if the accident occurred whilst you were travelling by air or sea). That three year period generally runs from the date of the accident, although in the case of claims for industrial disease the period runs from the date on which you should have been aware that someone had made a mistake and that you had suffered some injury. We will monitor the limitation period for you to ensure that the three year period is not overlooked but you should be aware of the period also.
9. Personal injury claims can often take a long time to resolve. The main factor which delays the resolution of a claim is the time it takes to establish a firm prognosis in respect of your injuries, i.e. how long it is likely to be before the effects of your injury disappear, whether you are likely to be left with any permanent symptoms etc. The period varies according to the severity of the injury. In the case of a straightforward injury, the claim may be resolved in six to twelve months. In the case of a whiplash injury to the neck or back, where the symptoms do not resolve rapidly, it will generally take one to two years to resolve the claim, or longer. In cases involving head injuries or serious orthopaedic injuries, it may take up to five years for the claim to be concluded or even longer in certain circumstances.
10. We will do what we can to resolve your claim in the shortest possible time. It is not, however, in your interests for a claim to be settled too soon. Once a claim has been settled, it is too late to ask your opponent to pay you more money, if the injury turns out to be more serious than was thought at the time you settled. You should not agree to settle your claim until the prognosis is clear from the medical evidence which has been obtained.
11. In pursuing your claim, we will take the following steps:-
- obtain details from yourself, your employer etc of all loss and expense both to date and in the future.
- obtain medical evidence to show the extent of your injuries and to establish the prognosis.
- if liability for the accident is likely to be disputed, we will be obtaining statements from any witnesses whose evidence may be relevant, including, where appropriate, any reports made by the Police or Health and Safety Executive.
- obtain reports from experts to support your claim. For example, health and safety experts, experts on nursing care or accountants.
- at the appropriate stage commence Court proceedings on your behalf, and deal with the necessary procedural steps which have to be taken to get the case ready for trial.
- if appropriate, instruct a barrister who specialises in serious personal injury cases to advise on your claim.
12. We will keep you informed of our progress in taking these steps, by sending you copies of our correspondence, by writing to you, and by regular interviews with you. If there is anything you are unsure about at any stage, you should not hesitate to telephone us for advice. We are here to help you, and to make things as easy as possible for you. We recognise that it helps you if you have confidence in what we are doing on your behalf.
13. There is much you can do to assist us in dealing with your accident claim. It is important that you keep written records of the following:-
- the circumstances of the accident and the names and addresses of any witnesses involved
- details of all expense you incur which you wish to claim from your opponent
- details of your injuries and treatment at various stages (this may be particularly useful when you are examined by our medical expert, who will want you to describe your symptoms and treatment to date)
- any questions which you may wish to raise with us when we next meet.
