A brief guide to making a Personal Injury claim
For many people, making a personal injury claim is a daunting prospect largely because this is not something they have ever done before and often speaking to a lawyer can be a frightening or bewildering prospect. The below is a very brief summary of the key steps with respect to making a personal injury claim but I must highlight that this is very broad and generic and different personal injury claims vary massively in how they are dealt with.
For the purposes of this article I will work on the assumption that you have had an accident, you were injured and you want to use a solicitor to assist you in making a claim. The initial enquiry should involve a conversation with your lawyer about what happened, who was involved and how you became injured. An experienced solicitor should be looking to get enough information to assess whether the potential claim has merits, is worth pursing and that there is a valid Defendant to pursue the claim against. This conversation should be free of charge but should also involve how a Claimant might fund a claim if it is to be taken further. Typically this is done through a “no win, no fee” agreement (known as a condition fee agreement – CFA) or via an existing Legal Expenses Insurance Policy.
Subject to the outcome of this enquiry being positive for both Claimant and solicitor, it is usually agreed that the solicitor will send to the Claimant all the client care paperwork and funding agreement documents so the Claimant can be “signed up”. Once this paperwork is completed and returned by the Claimant they then become a client of the solicitor.
Submitting the Claim
There are a number of different ways in which a claim can be first submitted to the Defendant. Often it is submitted directly to the Defendant’s insurers as opposed to the Defendant directly as it is their insurers who will typically deal with the claim. Once a claim has been submitted a Defendant (or their insurers) will have a period of time to investigate the alleged incident and prepare a formal response.
Having investigated the claim the Defendant should formally respond by stating whether or not they accept or deny liability (or indeed accept liability but with allegations of contributory negligence – attempting to apportion fault between the parties). If liability is accepted then in effect the Defendant is accepting fault for the accident and agrees that they should pay some level of damages for the personal injury and loss caused by the incident and injury. This is subject to causation whereby the Claimant must prove their injury and loss is related to the accident to which the Defendant has admitted liability. Losses that are unrelated to the accident do not need to be compensated by the Defendant.
Alternatively the Defendant can deny liability. A denial should set out the reason(s) why a Defendant is not at fault for the accident and should be accompanied by supporting evidence and documentation. At this stage, the solicitor and client should have a frank discussion as to whether or not the claim has sufficient prospects of success to continue further. If the solicitor/client feels that the case continues to have merits then they may continue to proceed with the claim. The risks associated with this decision should be fully explained to a client.
Otherwise know as the “value” of the claim. Essentially this can been separated into two parts; the value of the personal injury claim (General Damages) and the amount of financial losses a client has incurred as a result of the incident/injury (Special Damages). Throughout any claim, it is for the Claimant to prove their case so they must obtain evidence to support their losses. The solicitor should discuss this with their client in detail and assist with collating this evidence. Dependant on the nature of the claim some of the losses may be losses that might be sustained in the future (Future Losses)
When it comes to General Damages, a medical report is typically obtained by an appropriate medical expert (GP/orthopaedic surgeon for example). It is important that this Doctor is independent of both client and solicitor and has not treated or seen the Claimant before. The report will detail the injuries sustained, any related issues (such as time off work) and provide a prognosis (when the injured person is likely to make a recovery). Reports vary massively between claims dependant on the type of accident and the severity of the injuries. Often there can be more than one report and sometimes a client may never make a full recovery. This should be reflected in the damages.
When it comes to Special Damages, the most common loss of this type is loss of earnings. This is usually substantiated by disclosing wage slips for a period of time pre-accident and for the period of time that was taken off. A comparison between the two will often show what the person has lost in financial terms as a result of their inability to work. Medical expenses, travel costs, costs of care are also very common types of loss and the Solicitor should go through all losses in detail with their client.
Negotiations and Settlement
When all the evidence is ready it should then be disclosed to the Defendant and a period of time should be taken between the parties to attempt to settle the claim without the need to start Court proceedings. If liability is admitted then settlement is more likely to be achieved but even where liability is denied, Defendants may agree to settle a claim on the basis it will cost more to Defendant and/or there is a risk that a Judge may find them at fault at the final trial.
If the negotiation process fails and the client/solicitor wishes to continue with what they believe to be a meritorious claim then there is little other option but to commence Court Proceedings at this point. This is a significant step and one that should not be taken lightly as there are legal costs consequences that can follow should either party lose or attempt to withdraw. It is important that a solicitor explains to their client this is a process.
It is also important that a client is told that matters do not progress over night. There is a procedure that is followed once a claim starts the Court process and there are strict deadlines that apply. Again throughout this time the parties can attempt to settle the claim but ultimately if not agreement can be reached the claim will eventually proceed to a final trial where a Judge will be asked to consider the evidence and make findings with respect to liability and/or quantum where appropriate.
All too often clients are not told appropriate about how long a claim can take. It is true to say that no one case is the same and it is next to impossible to predict exactly how long a claim may last for. A number of factors such as complexity, whether or not liability is admitted, the conduct of either party and the severity of the injuries which all play a part with respect to the timescales that apply. But in any event, a client should be kept informed about their claim so they understand what is happening and reassured that their claim is being dealt with. I have dealt with simply/straightforward minor road traffic accidents which last only a few months to serious accident involving catastrophic injuries which can last well over 3-4 years but I endeavour to keep my client’s updated as best I can to help them through what can be a very difficult process.
Potential Claimant’s should never be frightened or embarrassed about making a claim. It is for Claimant solicitors to advise and assist in such a way to make a client feel comfortable and informed. Also, a solicitor must risk assesse and determine the merits of the claim, it is a waste of time, money and can cause significant distress to all involved to pursue a claim that is destined to fail. Accidents do happen, but this does not always mean you can bring a personal injury claim and a good Claimant solicitor will know this and tell their client accordingly.
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