Personal Injury Fact Sheet
This advice sheet gives you some general information about making a claim for compensation after an accident that was not your fault.
Claiming Compensation
For your claim to succeed, in general, it will be necessary for us to prove on the balance of probability that there was a breach of duty, that the breach caused a loss/injury.
There are a number of protocols that can apply in personal injury claims which set out the conduct expected of the parties and the steps the court would normally expect parties to take before commencing proceedings. Failure to comply with any of the specific pre-action protocol or the Practice Direction could result in the court applying sanctions, including as to costs, once a claim has been issued. Dicksons will advise and guide you through the process.
The main protocols that Dicksons deal with are the pre-action protocol for personal injury claims, Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents and the Pre-Action Protocol for Low Value Employers’ Liability and Public Liability Claims.
Dicksons is not able to able to assist with matters that are suitable for the small claims track at court. In a road traffic accident matter, this means the damages are valued at less than £5,000.00. The limit may be lower in other types of claim (either £1,000.00 or £1500.00).
The claim will be against the person and/or company responsible for the accident. If the person or company are insured, then their insurance company may respond to the claim.
If you were to receive an approach or communication about the case from a person or institution representing the person responsible for your accident, we would ask you to tell us and to avoid responding personally.
You will be entitled to claim two types of compensation known as
- general damages and,
- special damages.
General damages means compensation claimed for the personal injury you suffered as the result of the accident. This includes pain, suffering, and the extent to which your lifestyle has been affected by the accident.
Special damages are the financial losses which you suffered as a direct result of the accident. This might include for example travelling expenses, medical expenses, prescription charges, loss of pension rights and loss of earnings/profits. As well as claiming these financial losses up to the date your claim succeeds it will also be possible to recover financial losses which will be incurred in the future as the result of the accident.
It will usually be possible to recover interest on your special damages up to the date of settlement or order of the Court. It is also possible to claim interest on general damages up to this time although at a lower rate.
If the accident resulted in death a claim can be made for loss suffered by the deceased’s dependants and on behalf of the estate. Such a claim could include bereavement damages for certain relatives, funeral expenses and the cost of a modest memorial.
It is your legal duty to keep your losses to a reasonable minimum. This means for example that if your accident caused you to be absent from work, we would need to show that you took all reasonable steps to get back to work as soon as you were fit to do so.
It is very important that you are honest about your symptoms and losses. It is important that you do not exaggerate them or make false statements. Claimants who are found guilty of being fundamentally dishonest with their clinical negligence claim can face severe consequences. This can include becoming liable to pay legal costs of both sides, the case being dismissed or even prosecution.
Under normal circumstances your case has to be started in Court within three years of the date of your accident. Sometimes it is possible to go ahead with a claim even though three years have passed since your accident. This might arise if you did not discover you were injured until sometime after the accident.
In these cases, however it will generally be necessary to show that the case was started in Court within three years of you acquiring knowledge that you had suffered a significant injury attributable in some way to the accident and knowledge of the identity of the person responsible for the accident. In the case of children, the three-year period begins when they attain the age of 18.
It will be necessary to comply with the relevant pre-action protocol, which will give the Defendant opportunity to investigate the claim and confirm whether they are prepared to admit responsibility for the claim or whether they intend to contest it.
If the claim is admitted, it will be necessary to obtain medical evidence and records to advise as to the potential value of the claim. In higher value claims we may require several reports from different medical experts skilled in the relevant fields with a reputation for being fair. It may also be appropriate to obtain the opinion of a barrister.
If the claim is contested, before obtaining the medical evidence, we may need to obtain further evidence of the accident, including copies of any employment records, police records, witness evidence/statements, as well as considering whether expert evidence is required to deal with any issues (such as accident reconstruction).
At the conclusion of these enquiries, we will give you further advice on the merits of your claim and its value so that you can decide whether or not to begin the case in Court and consider options as to how the claim may be resolved.
At the outset we will advise you upon the funding of your case. This will include an estimate of our likely fees for carrying out the investigations. Our fees can be paid on a private fee-paying basis. Please see Client Care letter for details of our hourly rates.
If you have Legal Expenses cover included within one of your insurance policies your Insurer may agree to fund your claim up to the limit of your indemnity under that policy. Usually, your Insurer will set an initial funding limit (a” reserve”) which is referred to in your Client Care Letter and which may be increased if appropriate. You should note that the limit of your indemnity and the reserve include not only your costs but those of your opponent. If your claim is successful, as the Defendant is usually ordered to pay your reasonable costs, the Insurers will be reimbursed any costs it has incurred. Subject to the terms of your policy if all of your basic costs are not recovered the shortfall may come from your compensation. However, we guarantee that we will not take more than 25% of your compensation to pay that shortfall.
If your claim is unsuccessful the Insurers will pay your reasonable legal costs in accordance with the terms of your policy with them.
If we are satisfied that there are reasonable prospects of your claim succeeding we may be prepared to deal with your claim on a no win no fee basis by entering into a Conditional Fee Agreement (CFA) with you.
If a CFA is the chosen method of funding your claim the first point to note is that should your claim be unsuccessful you are unlikely to have to pay for the time that Dicksons have spent on this matter but please see agreement and accompanying Funding Sheet for more details. Please note that any disbursements incurred must be funded separately.
If your claim is funded by way of a CFA and is successful the Defendant would generally be required to pay the basic costs of bringing the claim. As there is a risk that if you are unsuccessful in your claim we would not be paid we are entitled to what is known as a “success fee” which is payable only if your claim succeeds. This is a percentage based on the risk we consider your claim to have and is set out in your Client Care Letter. The success fee cannot be recovered from your opponent and may be deducted from your compensation. Any shortfall in costs recovered may come from your compensation. However we guarantee that we will not take more than 25% of past losses and general damages from your compensation to pay any shortfall.
If it is appropriate for you to enter into an After the Event (ATE) insurance policy to cover the costs of any disbursements if you were to lose the case (excluding Counsel’s fees) we will advise you of this. In personal injury claims, the ATE Premium is not recoverable from the defendant.
Currently Legal Aid is generally not available for Personal Injury Claims. If the circumstances of your claim and your financial circumstances indicate Legal Aid might be available, we will advise you of this, but we would be unable to continue acting. You would need to instruct a firm that would be able to then provide Legal Aid.
If you are incapacitated as the result of the accident you may well be entitled to welfare benefits. If you are in any doubt about your entitlement to benefits please contact us so that we can help and advise you.
If your claim for compensation succeeds an amount equal to certain social security benefits which you have received is likely to be taken off your compensation. This deduction is paid directly to the Department for Work and Pensions by whoever pays the compensation.
The period during which benefits paid may reduce the amount of compensation begins on the day following the medical accident and ends on the date compensation is paid or five years from the beginning of the period whichever comes first. If the recoverable benefits exceed your claim for financial losses you will still be entitled to an award in respect of general damages.
It is very difficult to give precise information about how long your case will take because each case depends on its circumstances. However, if your case had to be decided by a hearing in Court it could well take as long as three years from start to finish. In some cases, where the evidence is complicated, it may even take longer than that.
Lower value claims, where the Defendant accepts responsibility, may be concluded in 9 to 15 months.
We promise to give all our clients as much information as possible about the progress of their cases but you are always welcome to contact us for information and advice.
Even if it is necessary to begin your case in Court the vast majority of claims do not have to be decided at a hearing. This is either because settlement is achieved before the case goes to Court or the case has to be abandoned due to information coming to light revealing that the case is unlikely to succeed.
In the unlikely event that the case is decided at a Court hearing you would probably need to give evidence in support of the claim. We appreciate that giving evidence in Court can cause inconvenience and personal distress but we will endeavour to guide you through the hearing process and avoid unnecessary problems.
It will save time and help us to maximise your claim if you:
- keep notes on relevant treatment which you receive after the accident and, in addition
- keep records of financial expenses which you incur as the result of the accident with receipts where possible.
Please keep us advised of relevant ongoing treatment and expenses which are incurred.
After the case is started in Court each side will need to tell its opponent about the existence of documents which they have or have had and which are relevant to the issues in the case. This process which is know as “disclosure” helps both sides to test the strength of their opponent’s case before it gets to Court. It can help in reaching a settlement therefore saving legal costs. If your case is started in Court we will give you careful advice about the disclosure procedure but suffice to say at this stage that it will be important for you to tell us about all documents which are relevant to the issues in your case.
We hope that this Personal Injury advice sheet has been helpful but if you have any questions you would be welcome to raise them with Mr. Jonathan Beresford Solicitor/Director.
