General issues relating to accident claims

In order to succeed in an accident claim you must prove that the opponent is responsible for your losses and injuries.

This first stage is called establishing opponent's liability. You have to show that the defendant has been negligent and that their negligence caused your accident. Following which you have to prove that as a result of the accident you sustained injury.

In most accident claims the opponent (or his/her insurers) will admit liability after negotiations or on the commencement of Court proceedings. However, for a few cases it will be necessary to prove liability in Court.

The second stage is to assess the amount of compensation you will get which is called assessing the quantum of damages. Compensation is often agreed with the opponent but if not it will be assessed by the Court. Sometimes liability and quantum are determined at the same time either by agreement, or by the Court.

In many accident claims the opponent is insured, in which case we will negotiate with the insurance company. The large majority of accident claims do settle out of Court without the need for a trial.

Limitation

In most cases accident claims for personal injuries must be brought within 3 years of the date of the accident or in the cases of minors 3 years from the minors 18th birthday. Court proceedings must be issued before the expiration of the limitation period. Failure would result in you becoming statute barred and may prevent you from bringing a claim for the accident.

Terms

You will be called `the Claimant'. The person you are making the claim against will be called `the Defendant'.

1 Documentary evidence

Because you must prove your accident claim it is important to remember to keep all documents including:

(i) any expenses and receipts relating to your injuries, eg taxi fares to hospital or special equipment purchased;
(ii) all correspondence you have had regarding the claim;
(iii) all documents relating to your treatment;
If your claim is against your employer:
(iv) your contract of employment;
(v) your job description;
(vi) correspondence with your employer;
(vii) copies of the accident book or any other relevant documents;
(viii) any other correspondence which you think may be relevant.

IMPORTANT - you must keep all documents relevant to the claim, not only those that will help your case.

(a) We may need to obtain photographs of the scene of the accident or a sketch plan. We will tell you if this is necessary.
(b) Photographs of your injuries. If you have bruising or cuts and scars it would be helpful if you would take photographs of these at the earliest possible opportunity.

2 Expert evidence

We will need to obtain the following evidence on your behalf:

• A medical report setting out the nature of your injuries and how they were caused. We are obliged to try and agree with the other side which expert to instruct. All experts are independent; they must address all correspondence to the Court and correspondence sent to them can be seen by the Defendants. Experts will only be instructed if they are necessary and the cost of their involvement is proportional to the size of your claim.

• And may need to obtain a health and safety consultant's report if your injuries are related to your work or an accident reconstruction report in other cases.

• And/or if appropriate an employment consultant's report detailing your future loss of earnings claim or a care report detailing the amount of assistance and care you have required and will require in the future.

3 Witnesses

(a) Your statement - We will prepare your detailed statement, which will be drafted in accordance with your instructions, if necessary when we have received a detailed response from the other party. You must sign a statement to say the contents of your statement are true. There are very grave consequences if the statement is not true; it can amount to perjury.

If, exceptionally, this matter does go to court, you will also be required to give oral evidence before the judge and the Defendant will cross-examine you on the contents of your statement which should be all encompassing;

(b) Other witnesses - We will also need to obtain detailed statements from other witnesses to support your claim. It will be very helpful if you could give us names and addresses of such witnesses as soon as possible.

4 Starting your Claim

The Personal Injury Protocol dictates how claims are to be conducted. The duties imposed require us to:

• Send a detailed “letter of claim” containing the allegations of negligence and details of claim, including injuries and other losses;

• The Defendant then has 21 days to acknowledge the letter of claim;

• Provided they acknowledge receipt of the letter of claim, the Defendant has 3 months from the date of acknowledgement before we can issue proceedings;

• At the end of the 3 month + 21 day period, the Defendant is expected to give a decision on liability. If he denies liability, he will have to give you detailed reasons for the denial and disclose any documentary evidence he relies upon.

These time periods for action are flexible. As a Claimant, you have to act reasonably at all times, exchanging information and documents relevant to the claim, generally trying to avoid the necessity for proceedings which is the aim of the new Rules.

5 Compensation

1. The amount of compensation (`damages') you receive is divided into:

(a) ‘General damages’ which compensate you for pain and suffering and loss of enjoyment of life; and

(b) ‘Special damages’ which consist of your quantifiable financial damages to the date of the trial and any claim for ongoing loss of earnings. They include medical expenses, transport costs, nursing or childcare costs (in some cases) and your claim for loss of earnings if appropriate. We enclose a draft schedule for you to complete and return in the stamped addressed envelope enclosed.

2. Mitigation

You are under a duty to mitigate your loss. You must therefore ensure that you return to work or obtain alternative employment as soon as you are able to do so. If you are looking for other jobs you should keep copies of all applications and responses to show that you have taken steps to mitigate your loss.

3. Welfare benefits –

a) The Compensation Recovery Unit

The Compensation Recovery Scheme operates to `clawback' DSS benefits you have received as a result of your injuries from any compensation you recover.

The Compensation Recovery Unit will tell the Defendants how much benefit has been paid to you. The Defendants must withhold this amount from any damages they agree to pay to you and forward it to the DSS. This can have a large effect on your damages and we will advise you of this at the time of any proposed settlement or trial.

b) Effect on state benefits

Receiving an award of compensation can affect your current and future entitlement to State Benefits and Local Authority support. If you currently receiving one of the following benefits?

• Income Support;
• Incapacity Benefit;
• Local Authority support in the home;
• Family Income Benefit;
• Local Authority funded residential care;
• Housing Benefit;
• Council Tax Relief;
• Free prescriptions;
• Free eye and dental treatment.

If you are receiving one of the benefits listed above or are likely to be in the future and award of damages means you have personal savings in excess of £3,000, these benefits will be reduced. If your personal savings are more than £8,000 they will stop altogether

Disposing of the monies so that you only have £3,000 left, either by spending it or giving it to a friend or relative, may cause you to be fined and have your benefits stopped under the Benefits Agency’s Deprivation of Capital Rules.

There is only one legitimate way to ensure that your entitlement to means-tested benefits and Local Authority support is maintained now and into the future, a Special Needs Trust.

If you feel that your financial position may be adversely affected in due course in any way by receiving any personal injury award, then you must contact us immediately to let us know, as the options are only available at the time your case may settle.

These options are only available at the time your case settles.

6 Information and advice
You will be provided with information about the progress of your claim at each stage. You can expect to receive copies of all medical reports and all important letters and documents received from the Defendants so that you are fully aware of what is going on in your case and we will advise you of the effect of each important stage. If you do not understand anything at any stage or if you need any further information do not hesitate to contact us.

We hope this information is helpful but if you have any queries about its contents please do not hesitate to contact us. In this firm we aim to offer all our Clients an efficient and effective service.