Had
an accident?
Need
a personal injury solicitor to claim compensation?
Need
advice to know where you stand?
Accidents and personal
injury happen on the road; at work; tripping on the pavement; in the pool
on holiday; in the park; through clinical negligence; by a product you
have bought.
This site gives free guidance
on UK personal injury law for England and Wales.
For FREE advice on your personal
injury or accident please use the Discussion
Forum.
To find a specialist solicitor
use Find an Expert
Disclaimer
The basics:
The basics:
Injury
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Top
This can be either physical injury to your body or mental injury and is
frequently both. It can involve injury to someone else if they have been
killed in a fatal accident.
Compensation
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Top
Money paid to the victim of an accident eg. for pain and suffering; loss
of earnings; damage to personal possessions; nursing care; long term loss
of amenity.
In a fatal accident compensation
may be paid to the victim's dependants and possibly others.
Claimant
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Top
The person who has
suffered the personal injury.
Defendant
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The person or company alleged to have caused the injury.
Time limits
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The Limitation Act 1980 sets out the time within which a Claimant must
"issue" ie start proceedings in Court. If any of these time
limits have expired the Defendant may escape liability to pay compensation
no matter how strong a case the Claimant has.
There are different time limits for different claims.
These are some of them:
1. If you are claiming for personal injuries of whatever kind or death
caused by negligence of another person or body you must start proceedings
in Court within 3 years of the date of the injury or the date on
which you know of this (whichever date is the later). If you are unsure
seek immediate advice from a Solicitor.
2. If your claim is as a result of injury caused by deliberate assault
the time limit is 6 years.
3. If a doctor /health worker/provider has negligently caused you injury
you must again start Court proceedings within 3 years of the negligent
act or within 3 years of the date on which you knew you had sustained
an injury as a result of something he or she has done to you.
Examples of when a time limit begins when the date the injury
was sustained is not clear:
An
employee worked in dusty conditions for many years.
As
a result he developed silicosis. This man's damage began long before
he knew of it so the 3 year period began to run only from
the date on which he could reasonably have been expected to become
aware of his illness. |
In
1991 a community worker told a man that his deafness might have
resulted from many years working in a mill.
He
immediately went to see a Solicitor who sent him to see a consultant
for a Medical report.
Did
this begin the 3 year clock ticking?
No.
If
you need expert evidence to establish the cause of the injury the
mere fact that you sought a medical opinion did not mean you knew
of the cause of the injury. |
A
patient who deteriorated after an operation thought the operation
had not been a success, but had nothing to alert him to the fact
that he had actually been injured during the operation.
The 3 year period
did not begin to run until the date on which it was discovered that
the operation itself had involved a medical accident. |
When does the 3 year period normally start?
It is calculated beginning with the day after the relevant day
(usually that day is the day on which you were injured, but not always.)
The 3 years ends on the last day of the period.
SEE A SOLICITOR BECAUSE GETTING THE TIME LIMIT WRONG CAN BE FATAL TO
YOUR CLAIM.
A minor
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A child under 18 cannot take Court proceedings themselves. They have to
do so through their parents/guardians. The 3 year time limit does not
begin until the 18th birthday of a child.
Conditional Fee (No win no
fee) |
Top
The Solicitor agrees not to make a charge for his services if you do not
win compensation. If you do win compensation you agree with the Solicitor
at the outset that you will pay them a success fee ie. a percentage increase
on their basic fee (not the compensation itself). If you lose the Defendant
can claim costs from you. So you have to take out insurance against that
risk at the outset.
Legal Aid |
Top
Only available in a very limited number of situations. You must
meet the criteria of income and savings first and use a Solicitor with
a franchise to do that type of work. From your point of view the main
types of case involve:
1. Clinical negligence
2. Claims where there has been serious wrong doing by a public authority
eg. injury caused by the police in the cause of arrest.
3. If the injury arises out of a housing claim
4. If the claim benefits the wider public interest eg. it involves a
new point of law
See the Legal Services Commission web site: www.legalservices.gov.uk
Clinical Negligence
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This does not just involve you suffering injury as a result of the negligence
of a doctor but can include all healthcare workers of whatever description
eg.
- GP
- Consultant Surgeon
- Health Visitor
- Midwives
- Nurses
- Ambulance services
- Dentists
- Private clinics
- Private doctors
- Physiotherapists; osteopaths
- Radiographers
- Pathologists
- Opticians
- Laboratory technicians
- and many more...
So seek the advice
of a Solicitor.
Can I claim?
| Top
You cannot claim compensation just because you have been injured in an
accident. You need to prove negligence, but the legal definition of negligence
is not straight forward. Not every accident involves negligence in law
and some may just be "Act of God".
Every case will depend on its own facts.
To get a claim off the ground a Claimant must prove that:
- it
was reasonably foreseeable that harm would result from a failure to
take care by the Defendant
- there
was a duty of care owed to him or her
- the
duty was not discharged to the Claimant
- damage
or injury resulted to the Claimant
Even if you prove all of these
things you might still not win your case. The law assumes that you will
take reasonable precautions for your own safety eg. you are at the seaside
and decide to walk out on a harbour wall and slip on a patch of algae
and you injure yourself. Will the local council be liable for you injury?
It is unlikely because it was day light, it was a sea wall that you could
see had growing on it patches of slippery algae which caused an obvious
hazard to walkers. You chose to take that risk.
Contributory
Negligence |
Top
You are injured as a
result of the proven negligence of the Defendant, but the Court reduces
your damages because it decides you contributed to your own injury or
the severity of the injuries. A simple example is that you are injured
in a car accident, but did not wear a seat belt so your injuries were
more severe than they would have been if you had worn one. If the Court
decides that the injuries were 25% greater than they would have been if
a seat belt had been worn then it it will reduce your damages by 25%.
In another case a sports hall
run by the Council placed the gym mats too close to a wall. It was decided
this was negligent and it failed to warn users of the danger. It was forseeable
that someone would be injured. An experienced, keen gymnast was permanently
injured when he did a somersault on the mats and hit the wall.
The Council was liable, but
damages were reduced because the gymnast was experienced, intelligent
and should have assessed the danger himself, but he was showing off to
friends so did not take care himself.
If you take the
risk
This may stop you claiming
for injuries sustained in an accident. You have been out with your
friends for a night out on the town. You have seen him matching you
pint for pint and know he is not fit to drive. You let him drive you
home and he negligently drives into a wall. It is unlikely that you
could claim for your injuries.
See your Solicitor and
go through the facts carefully with them.
"At your own
risk"
You will often see notices
or signs that say you are there at your own risk, or you are doing
some activity "at your own risk". These attempts to limit
or even exempt an organiser of an event or owner of a building etc
are invalid if an accident results from the organiser's or occupier's
negligence.:
You decide to go horse-riding
at your local riding school. You are asked to sign a form agreeing
you are there at "your own risk". The horse bolts, running
into the road and you are thrown off breaking your leg. Later you
discover that the horse has a history of behaving badly and bolting.
You will be able to claim.
Unavoidable
Accident |
Top
If a situation could
not have been forseen and precautions could not have been taken then no
claim can be made. If a driver with no history of heart problems has a
sudden heart attack and knocks you down you have no claim against him.
A thorough investigation of
the facts and history are needed before deciding there is no claim.
Compensation
Calculation |
Top
First prove your claim.
Then prove your loss. Not every loss can be claimed. There are two types
of loss:
a. Direct loss such as your
injury physical or mental; damage to your clothing; damage to your car.
b. Consequential loss which
arises from your 'direct loss' such as your loss of wages now and in the
future and care costs; loss of holiday.
Damages
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General Damages
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For the pain and
suffering you experience as a result of the accident whether short-term
or long-term. Anticipated future costs eg. nursing care; needing special
equipment. Anticipated future loss of earnings eg. inability to do
the job0.. you did and having to take a less well paid job; being
handicapped in the labour market.
Special Damages
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These are your losses
calculated in monetary terms incurred by you between your accident
and your trial date and include such things as loss of wages in that
time; damaged clothing and repairs to your car; cancellation fees
for lost holiday.
Provisional damages
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If there is a "measurable"
chance that you will develop a serious disease or that you will seriously
deteriorate in the future then the Court, instead of making a once
and for all payment, can look twice at the issue of damages. It only
gives two chances to the Court and only in limited cases.
Example:
Marchent
was severely beaten by doormen when ejected from a pub. As a result
of the beating he fell down some steps but was not knocked out.
As a result of the incident he received scarring and fractures,
requiring surgery on his left knee.
General
Damages:
Pain
suffering and loss of amenity (including both orthopaedic and psychiatric
injuries) - £55,000
Loss of Marriage
or long-term relationship prospects - £0
Special Damages:
Net
Loss of Earnings - £16,500
For more details
see:
Court of Appeal February 28 2003: Case No: BS150559
Interim
payments |
Top
You can apply to the
court for a payment on account of your likely final damages. Insurers
may make this voluntarily.
Standard
of Proof |
Top
To prove your
claim the judge must believe that your version of the facts is probably
the correct one. This is a civil claim so the standard proof is "on
the balance of probabalities" (In a criminal case it has to be "beyond
reasonable doubt").
Small
Claims Track |
Top
The County Court has three trial
tracks. This is one of them. You can only use this if your claim for pain,
suffering and loss of amentiy are expected to be less than £1000
and the total value of your claim is less than £5000.
Vicarious
Liability |
Top
This is the legal rule. If someone
commits a civil wrong ( a tort) someone else can still be liable. An employer
can be liable for tort commited by an employee in the course of his employment.
You could thus claim against the employee for his "primary"
liability, and the employer for his vicarious liability.
Example:
Richard Vowles,
confined to a wheelchair as a result of a rugby accident. On 13 December
2002 Morland J. gave judgment in favour of Mr Vowles against Mr Evans
(the referee) and the Welsh Rugby Union who appointed Mr Evans. "He
held (i) that Mr Evans had owed Mr Vowles a duty of care, (ii) that he
had been in breach of that duty and (iii) that his breach had been a cause
of Mr Vowles’ injury."
For more details see:
Court
of Appeal March 11 2003: Case No: B3/2002/2747
Loss
of Amenity
| Top
One of the elements making up general damages along with pain and suffering.
It is the effect of the injury on your ability to carry out everyday activities
eg. housework; diy and personal care and to enjoy life eg. sef-confidence;
hobbies; aspirations; social activities; sports etc
Mitigating
your loss |
Top
As a Claimant you have a duty to take reasonable steps to lessen
your financial loss or the effects of your injury.
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Last Modified:
April 7, 2003
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