This is a brief note to help you understand how a personal injury claim works. From your point of view it is often difficult to understand why some things are done the way they are, and why everything is taking so long. Every claim is different of course-the vast majority of cases never get to trial, and many are resolved without proceedings even being issued.
Who has been injured?
A claim involving a child (someone under 18) or a person under a “disability” is treated differently from ofther claims. The main difference is the limitation period that applies. Normally a claim must be issued at Court within 3 years of the accident. However, this 3 year period doesn’t begin to run until a child reaches 18 years old, or the disability is removed. “Disability” has a particular meaning here-it means someone who is not mentally able to conduct their own affairs, for instance if they suffer from dementia. They are also known as “patients”.
The other significant difference is what happens to any damages that are awarded; in order that the child or patient is not exploited, the money may be paid into Court to be held for them, and paid out only if the Court is satisfied that it is to be spent properly. If it is for a child, they will receive the money when they are 18. alternatively the Court may be prepared to pay the money to the child’s parents, provided they give an undertaking to the Court to use it only for the benefit of their child.
The different kinds of personal injury claim
Personal injury claims are brought by the person injured, the Claimant, against the person or company that caused the injury-known as the Defendant. However, in most cases that person or Company will have insurance against claims being brought, and it will be the insurance Company that deals with the claim and pays any compensation. Common types of claim are:
Otherwise known as employer’s liability claims. This includes any accident that occurs as a result of an employer’s fault, such as those caused by falls, back injuries caused by lifting and so on. They also include stress at work claims, and industrial diseases such as asbestosis.
Road traffic accidents
In these claims a person is injured as a result of a vehicle being used on a highway. The significant difference of a road traffic accident claim is that some injuries are caused by drivers who are either not insured, or cannot be traced (in a hit and run for instance). If so, then it is still possible to bring a claim but it will be defended by the Motor Insurers’ Bureau who will also pay out any damages.
A clinical negligence claim means that it is alleged that the injury is caused by the fault of medical personnel such as a doctor, midwife or nurse. Cases such as these are complex and expensive. Clinical negligence claims are now required to be dealt with by specialist firms of solicitors.
Examples of other personal injury claims might include:
- Tripping and slipping accidents: the claim is normally brought against the Council responsible for the upkeep of the pavement or road where the accident happened;
- Marine claims: these claims would include an accident on a ferry or pleasure boat. A claim must be brought within two years of the accident, not three.
What a claimant needs to prove in court
To win their case, there are three questions that a Claimant must answer-and ultimately before a Judge in a trial. The Claimant must only do so on the balance of probabilities, not beyond reasonable doubt (which is the standard of proof in a criminal prosecution)
Duty of care
The Defendant must owe the Claimant a duty of care not to injure or harm him or her. This is easily shown in workplace and road traffic accidents, but it can be more difficult in other cases. For instance, where a child is injured on a building site, where the child knows he is not supposed to be. In that case the Occupier’s Liability Act applies; the builder may be liable if the fencing of the site is inadequate, for instance. The Claimant must also explain what the duty is-for an employer, this might be to provide proper protective clothing and training, and to use proper guards on machinery. Often the duty is defined by Acts of Parliament, for instance the Factory Acts require proper guards to machinery.
Breach of duty
The Claimant must show that the Defendant was in breach of the duty of care; an employer for instance may not have provided proper protective clothing, or there was bullying in the workplace that led to an employee suffering stress at work. Here the breach of duty may be the failure of the employer to spot the bullying and to fail to do anything about it. This “breach of duty” is also called negligence.
You must not just show that you have suffered damage, but also that the damage was caused by the breach of duty on the part of the Defendant (“causation”). Damage in personal injury claims range from a minor injury such as a sprain or whiplash to severe and irreversible brain damage. It may also include diseases such as asbestosis, or depression as a result of occupational stress.
What happens when you see a solicitor
Your solicitor will ask you about how your accident happened, and how it affected you. You may have lost pay or overtime as a result, and these will form part of your claim as “special damages” together with other costs you have incurred such as prescription charges. He or she will then prepare a statement for you to approve. Normally whoever is funding your claim (see below) will require confirmation that your solicitor believes that your chances of success exceed 50%. Your solicitor will therefore need to think through the three questions above to decide whether or not your claim will succeed at this very early stage. If he or she is satisfied, your solicitor will advise you and then write to the Defendant with a letter notifying them of the claim, asking for documents if relevant, and finally asking whether or not they admit liability for the accident. The way in which claims are made are governed by the Civil Procedure Rules (“the CPR”), which also apply to the Court. The personal injury and disease pre-action protocols of the CPR require this letter to be sent, which allow the Defendant 3 months to make enquiries. Normally of course this investigation is conducted by the insurers of the potential Defendant.
What the defendant (or their insurer) might argue
The insurer may say, in response to the pre-action protocol letter, that there was no breach of duty. For instance, if a claim is made that an employee was injured due to inadequate protective clothing, the insurer may say that it was provided but the Claimant didn’t wear it. If this is true, this may be the end of the claim. However, often the insurer will admit that the Defendant was in breach of duty or was negligent, but says that there are reasons why the Defendant should not blamed partly or at all.
One argument is contributory negligence-in other words, the Defendant admits that it was negligent, but the Claimant’s own actions made the consequences worse. An example of this might be an employee who is injured by a machine, but who didn’t follow the correct procedure he or she was taught in training.
Another, more complex argument is causation; in other words, the negligence of the Defendant did not cause the injury to the Claimant. This argument is often used in cases involving back injuries for instance. The Defendant may say that the Claimant would have suffered the injury anyway due to a pre-existing degenerative condition. Obviously this type of argument would depend on the Defendant having medical evidence to support it.
Who is working for me?
There is a team of people who work on any personal injury claim. What do they all do?
What a solicitor does
A solicitor will advise you about your claim, and be your point of contact throughout. He or she will coordinate the case and deal with all the paperwork that the case generates, such as dealing with correspondence, putting together the witness statements, organising experts, issuing the proceedings and looking after the case until it gets to trial. He will also deal with the Court for you and represent you at any hearings the Court holds until the trial itself.
What a barrister is for
Barristers specialise in different areas of the law, and in some cases particular types of injury, and your solicitor will use one who specialises in personal injury claims. They may be used to give specialist advice in more complex cases on liability (whether you will win) and/or on quantum (how much your injuries are worth). This advice may be in writing or in a meeting (known as a conference). They will probably be used to draft the papers that will be lodged at Court if proceedings are issued, (called the Particulars of Claim), and if the case goes to trial a barrister will present your case to the Judge.
What the experts do
Expert evidence is always used in personal injury cases, at least to report on the extent of the injuries you have sustained. The medical expert will examine you, and write a report on what kind of injuries you have, any previous medical history if relevant, how long your recovery period will be, and what effect the injury may have on your future life and work. This report is usually sent to the Defendant or their insurers before proceedings are issued, and they are also attached to the Particulars of Claim when proceedings are issued, so that the Court knows what injuries you have sustained.
Other experts may also be used, in some cases. For instance an accountant’s report may be needed if you are self-employed and your business has suffered as a result of you being unable to run it properly. Unfortunately good experts are always busy, and obtaining the report can take several months.
Settling your claim before proceedings are issued
Many cases are settled before proceedings are issued; the CPR encourages solicitors to deal with cases by negotiation, and Court proceedings are only used if the Defendant will not put forward a reasonable offer, or the appropriate limitation period is about to expire. Your solicitor will assess the value of your case once the medical report is available, perhaps with Counsel, and with your approval make an offer to the Defendant to settle the claim (this is known as a “part 36 offer” after the section of the CPR that deals with this procedure). If it is possible to agree the amount of money your claim is worth, then the case will be settled at this stage.
What happens when proceedings are issued
If it is necessary to issue proceedings, then your solicitor will instruct a barrister to draft the Particulars of Claim for you. When you have approved this and signed it, they are sent to the Court with the medical report and also a form called a claim form. The Court issues the proceedings, and they are then sent to the Defendant. The Defendant has 14 days to tell the Court that he has received the papers, and usually that the claim will be defended, by returning an Acknowledgement of Service form. This is normally done by solicitors appointed by the Defendant’s insurers. If this is done, the Defendant then has 28 days from the service of the claim form and Particulars of Claim to file and serve a defence. Often the Defendant will need a little more time to complete their enquiries, and usually a request for more time is granted if it is only a short delay.
Once a defence is filed a District Judge at the Court which is going to hear the trial examines the paperwork, and gives directions for trial. This is a timetable for the parties to deal with various stages in the proceedings, including exchanging witness statements, and it also gives a trial window for when the trial will take place. Most cases settle before a trial, once with witness evidence is seen by both sides.
If the trial does take place, you will give evidence to the Judge based on your witness statement, as well as any other witnesses who can give the Court useful information. The experts do not usually give evidence as they have provided written reports.
How its all paid for
Court cases are well-known for being very expensive. Normally the winner has their costs paid for by the loser, and in personal injury this can be a great deal. Who pays for all of this?
Legal Aid, or Public Funding, is not now available for personal injury claims except in very unusual circumstances. It may be available for claims on behalf of children, patients, and for large complex cases such as medical negligence if the Claimant passes the means test. This requires the Applicant to either have an income below a certain level, or alternatively be on a qualifying form of welfare benefit.
Legal expenses insurance
Many people have legal expenses insurance as part of their household insurance or motor policy. This means that you can use this to pay for your legal costs. However, you will not normally be able to use your own solicitors; the insurance Company normally insists on you using a firm they appoint from their panel-which may be a firm on the other side of the country.
Whatever happened to claims direct?
There were many firms like Claims Direct at one point. These organisations recruited people with injuries, and promised them that they would not pay a penny in legal fees. However they then sold their Clients a very expensive legal expenses policy paid for by a bank loan to the Client. When the claim was resolved, the bank insisted on repayment of the loan out of the damages. If the case had taken a long time to settle a great deal of interest had accrued onto the bank loan. Sometimes this could wipe out any damages altogether, so that the Claimant received nothing. Another problem was that the Court of Appeal decided that the amount charged for the insurance policy was too much, and the Defendant only had to pay half of it-the Client had to pay the rest out of the damages. Claims Direct and similar organisations have now mostly gone into receivership and have largely disappeared.
How much will I get if I win?
How much your damages will be depends on several factors, but may also be reduced if there is any contributory negligence. If this is set by the Court or agreed at 10% for instance, you will receive 90% of the general and special damages.
The amount of your general damages is also called “quantum”. It represents the severity of your injuries, and is assessed by comparing it with reports of cases where similar injuries have been dealt with at a trial. They are also summarised in a publication called the “Judicial Study Board Guidelines”, which is approved by and also used by Judges.
Special damages are items such as lost wages, travel costs to see your doctor and other financial losses you sustain as a result of your injury. They are summarised in a Schedule and submitted to the Court with the Particulars of Claim and medical report.
Deduction of CRU benefits
The CRU is the Compensation Recovery Unit, which is a government organisation. Some people, as a result of their injury, receive state benefits such as Statutory Sick Pay until they go back to work. These benefits must be repaid to the government by the insurer before compensation is paid to you-otherwise you would get the money twice. The offer to settle your claim is expressed to be “net of CRU benefits” therefore, so that if your claim is worth £2,000 and you have received £500 of benefits, you would get £1,500.
When do I get my money?
It does take a little while for the insurer to process the cheque once the claim has been settled, either by agreement or at trial. However, there may also be other delays involved.
Payments into Court
A Defendant may make you what is known as a payment into Court; this means that, once proceedings are issued, a written offer to settle the claim at a certain amount is made. However the CPR requires the Defendant to pay what is offered into a bank account held by the Court, which is located in London. This means that, if you decide to accept the offer, a special form of application has to be made to the Court to have the money paid out again. This can take up to a month in some cases.
If an injury is serious and liability is admitted, it may be appropriate to ask the Defendant to make an interim payment on account of the money you eventually receive. This is not likely to be a large amount, as the quantum of the claim may either be disputed or it is not possible to establish it yet. However, it may help to cover everyday living expenses or even one-off costs such as adapting your house to your needs.
Personal injury trusts
In very serious injury cases it is possible that you will never work again. If so, you may be entitled to welfare benefits such as income support or disability living allowance. However, many benefits are means-tested, so if you receive a large amount of money to compensate you for your injuries this could mean that your benefits will be stopped until you have spent the award. One way of avoiding this is to set up a personal injury trust with a trust deed. The amount you are awarded is paid into a fund held by two or more trustees under the terms of the trust (who may be family members or friends, or professionals such as an accountant and solicitor). Provided the money in the fund is not used for day to day living, and the terms of the trust do not permit you to draw on the money as of right, your benefit entitlement will not be affected. You do of course have to declare the existence of the money to the Benefits Agency, together with the terms of the trust deed.