Personal Injury Claims - Advice
Some people who have sustained brain injuries consider making personal injury claims for compensations. Mark Pierce, of Boyce Hatton Solicitors in Torquay, answers some common questions about claiming compensation.
The information in this section of the website is correct at the time of publication, April 2008. The text is for information only and is not intended as a substitute for independent legal advice relating to individual cases.
1. How do I know if I have a claim?
You may feel instinctively that you have a claim if you have an accident doing something ordinary - like driving your car, crossing the road or going about your normal activities at work - and you sustain a severe head injury and end up in hospital. However, it is for the lawyer you consult to assess the facts that led up to your injury and the evidence in support, and to properly advise you whether your injury has arisen by reason of a breach of duty and/or negligence on the part of a liable third party e.g., another driver, public authority, your employer etc. This will establish whether you have a claim and how strong it might be.
2. What should I do first?
Speak to a Personal Injury Solicitor! That is what they are for.
3. How do I choose a Personal Injury Solicitor?
You should not choose a lawyer randomly. Most law firms have advertising material available on their websites or in their receptions identifying the range of services they offer. You should be looking for a lawyer who has relevant experience in personal injury work. They should be members of the Personal Injury Panel, the Association of Personal Injury Lawyers and most importantly have satisfied an organisation like Headway that they have the relevant experience that allows them to be mentioned in connection with headway.
4. How do I know my lawyer has the right experience?
Either ask them direct, or check with the Association of Personal Injury Lawyers. In any case, they should be able to verify their experience and if they become evasive or you are not convinced then you should do further research.
5. What can I expect from making a claim?
Making a claim is not an easy process, and a good Personal Injury Lawyer will help to manage your expectations. If you are properly advised you should receive monetary compensation. While this does not return you to how you were before the accident, it is the way in which the system ensures that you can meet any losses or future expenses you may face as the result of your injuries.
6. What is the process?
The process aims to get the party liable for your injuries to meet your claim by obtaining full, extensive and detailed evidence to support all of its aspects. This involves appropriate medical reports and other expert evidence to sustain your claim.
7. How long does it take?
How long is a piece of string? With a serious injury case it can take some time - this is often for several reasons. Firstly, until the full consequences of your injuries have been properly assessed and any ongoing limitations to how you live your life identified, it is not possible to quantify the claim in monetary terms. Rushing to conclude a claim simply to get it out of the way can result in you being under-compensated or not properly compensated for future eventualities that you failed to properly investigate. Personal injury claims at relating to serious injury can take several years but during that time financial hardship can be overcome by interim payments against your final damages award.
8. Do I need to go to Court?
Sometimes you have no alternative - for example there may be a dispute over the facts of your accident and there would therefore be a trial to establish those facts, hopefully in your favour. Equally, if the party defending the case, usually Solicitors appointed by an insurance company, are not prepared to make reasonable concessions about the value of your claim you may have to persuade a Judge that you are deserving of more than they are offering you. Going to Court to have your compensation assessed does happen despite the fact that many cases settle before that becomes necessary. If you have to go to Court it is never as bad as you assume it will be and any competent Solicitor along with the Barrister they instruct will ensure that you are fully prepared and briefed to know what to expect.
9. What happens if I win?
You will receive your compensation and your legal fees will be paid in addition to that award. If you receive a substantial award you may need further advice and assistance in the management of your money, which could involve the Court of Protection, if you are not capable of looking after your affairs properly because of your injury. In addition, high quality investment advice about how your damages should be looked after will be made available to you.
10. What happens if I lose?
If you lose, then assuming you have pursued the claim properly you will have some form of legal expenses insurance that your Solicitor will have secured well before that point is reached. This ensures that you face no personal cost consequences as a result of losing your action. If as a result of some dispute on the facts your claim is unsuccessful you would not receive a bill from your Solicitor if you have pursued the case on a no win no fee basis and, although you would be liable for the Defendant’s costs, these would be met by the policy and mentioned above.
11. What happens if I am not happy with the legal advice I am receiving?
It is often the duty of a Solicitor to give his client advice that they may not be happy with. Clients can sometimes have expectations that our legal system is not designed to meet. Equally if the relationship is not working it is best for both parties to seek a second opinion from another Solicitor. If you wish to transfer your instructions to that Solicitor and he or she is willing to take those instructions then, subject to certain agreements reached between your previous and new Solicitor, your file can be transferred. Hopefully this is something that with clear advice and regular access to your Solicitor it should be possible to avoid. However, if it happens (and it does), it is something you should voice as soon as possible.
Glossary of Terms
1. Liability
This is the first point that we must always establish on your behalf. If the accident was your fault or it cannot be attributed to the fault or breach of duty of another party, then clearly there is no claim. No compensation is paid unless it is accepted or there is a finding that fault exists on behalf of another party.
2. Contributory Negligence
Sometimes whilst blame may attach to another party, you may have to share some responsibility in that you contributed to your own misfortune. It is for the other side to prove this.
3. Damages
These break into two main areas:
a) General Damages for your pain and suffering and the impact the accident has on your lifestyle, and also for future loss e.g., loss of future earnings, promotion prospects, the need for care and assistance etc, property adaptation etc.
b) Special Damages, which are your out of pocket expenses that flow from the accident and which, so long as they are reasonable, are collated and form part of your claim. This could include things like private medical treatment, loss of earnings, care and assistance provided by another family member, even loss of another family member’s income to look after you.
4. Solicitors
These are lawyers who are properly qualified and are entitled to be called Solicitors, and who should have the relevant experience you need.
5. Barristers
Barristers or as they are sometimes called, Counsel, are other lawyers who are brought in by Solicitors to assist in advising clients particularly in more serious and complex cases. Barristers offer opinions often in writing or at meetings with the Solicitor and the client and also traditionally undertake advocacy i.e., if your case does go to Court they will represent you at trial and present your case.
6. Medico-Legal Opinion
These are opinions for use in connection with a personal injury claim obtained from an independent medical expert invariably at consultant level, for example in neurology or Neuropsychology, who provides an opinion and prognosis as to the nature of the injuries sustained and what degree of recovery can be anticipated and what limitations may be faced. Both parties to the case will obtain such opinions from experts.
7. Litigation
This effectively means the process of making a claim particularly if a Court action is necessary.
8. Brain Injury Case Manager
These are individuals who are appointed in a severe brain injury case to represent the interests of the injured party in the litigation and provide advice and services for the injured party, which are designed to help them with the problems they face.
Mark Pierce, partner, Boyce Hatton
