Making an Injury Claim

Our Claims Process

The concept of seeking compensation in the event of an injury or illness is one which has received something of a battering over recent years, with media stories frequently highlighting the relatively small number of fraudulent cases whilst ignoring the vast bulk of those which are perfectly honest. Similarly, the idea of ‘No Win No Fee’ has been much misunderstood, and has come to be something of a shorthand for people wishing to ‘cash in’ on relatively trivial incidents, and lawyers milking the legal system for all they are worth. The truth, however, is both much more complex and, on a basic level, very simple. The simple part of the equation is this:

If you’ve been injured or made ill and it was the fault of another party, you deserve to be compensated. It’s not a question of ‘cashing in’, it’s simply a case of receiving recompense which recognises your suffering, as well as compensation designed to ensure you don’t end up being out of pocket. The more complex side of a compensation claim is the fact that, depending upon your precise circumstances, the actual mechanics of the claim may be complicated and lengthy, with evidence having to be gathered and a compelling case presented.

Any successful claim for compensation depends upon establishing a two basic facts:

• You have suffered an injury or developed an illness
• Another party was negligent and their negligence brought about the conditions which caused your illness or injury.

Whilst the common conception of an ‘injury’ tends to be a sudden physical problem resulting from an act such as slipping, falling or being involved in a road traffic accident, in compensation terms it also encompasses illnesses and conditions which take many years to develop, often as the result of poor and unhealthy working conditions. The term ‘injury’ also encompasses psychological problems such as depression and anxiety brought about by stress in the workplace. If a claim for compensation is successful, the amount awarded will be calculated on the basis of two different factors:

1) The type and severity of your injury – this amount will be calculated on the basis of guidelines set out every year by the Judicial College, the UK body responsible for the training of judges. (See: http://www.judiciary.gov.uk/about-the-judiciary/training-support/judicial-college/)

Whilst the guide sets out a range of payments to be made for specific injuries to particular parts of the body it is just that -a guide – and should only be taken, before the compensation is awarded, as a rough estimate. The amount of this lump sum will also take into account less tangible factors such as the pain you have suffered and the psychological ramifications of your injury or illness.

2) Any ongoing financial impact – from the moment you suffer your injury any expenses incurred as a direct result can form part of a compensation claim. This could mean simple out of pocket expenses such as travel costs or medical bills, or it could entail more complex calculations based on any loss of income now, a reduction of earning power going forward, and any impact these two might have on your pension. In more serious cases, expenses might include high value items such as the cost of rebuilding a home to accommodate a disability or the money needed to pay for ongoing medical care.

It’s vital, if you are to receive the compensation you deserve, that you keep all and any paperwork pertaining to your injury, from simple receipts through medical reports to past employment details, since they will all play a part in building your case.

The three year time limit, after which you no longer have the right to make a claim, is enshrined in the Limitation Act 1980 (www.legislation.gov.uk/ukpga/1980/58), although there are a few exceptions to this rule, such as cases of medical negligence and workplace illness, in which the three year limit only runs from the date upon which the illness becomes apparent. Someone who works in dusty conditions without adequate protection, for example, may take many years to develop life-limiting respiratory problems, but is equally entitled to seek compensation. Other exceptions to the Limitation Act 1980 include:

Children – in the event of a child being injured, a parent or guardian can pursue compensation until the child turns 18 years of age, at which point the three year limit kicks in.

Mental Health – if a person suffers an injury to the brain which renders seeking compensation impossible then the law states that the start of the three year period should be delayed until they are well enough to pursue a claim (Source: www.legislation.gov.uk/ukpga/1983/20/contents). The same variation applies to those claimants who are suffering a mental illness at the time of their injury.

The key message to take away from this is that the best course of action is to begin a claim as soon as possible after the accident took place. The details will be fresh in your own mind and the minds of any witnesses, and supporting paperwork – such as workplace accident books, police reports or medical statements – will be easier to track down and bring together.

The Claims Portal

In recent years the personal injury system has been subject to major revision, not least in changes to the no win no fee system, which will be examined later. Another major change has been the creating of the Claims Portal in 2010. This is an online electronic interface set up by the Ministry of Justice (See: http://www.claimsportal.org.uk/en/), which has to be used for all road traffic accident claims as well as those involving personal injuries taking place in a public space (Public Liability claims) or a workplace (Employers Liability claims). The Claims Portal deals with cases in which the damages being claimed are less than £25,000. When it was originally set up in 2010 it dealt only with RTA claims, with the other types of personal injury being introduced in 2013.

The portal works in such a way that it speeds up the process of those cases (a large percentage) in which liability is admitted early on and a settlement reached. By standardising the process via a single online platform it is hoped that only fixed costs will be incurred, thus maximising the amount of compensation which will eventually find its’ way to the claimant. One of the standout points of the Claims Portal is that it sets strict time limits for every part of the process. For example, once your claim has been entered into the system, the following time limits will apply during which the other party (or their insurers) can admit or deny liability. The time limit in each case is as follows:

a) RTA cases – 15 days
b) Employers Liability cases – 30 days
c) Public Liability cases – 40 days

As well as fixed time limits, the Claims Portal has fixed fees for each stage of the process, removing any uncertainty where taking action is concerned. The interface allows your representative to enter all of the details of your accident and the injuries you have suffered in order to create a Claim Notification Form (EL1) which will be sent, via the Portal, to the other party. The other party will then respond by either admitting liability and accepting the claim made, by making a counter offer or by denying liability altogether. If the latter transpires, then the claim will be taken off the Claims Portal and Court proceedings instigated, whereas if liability is accepted, the negotiations over how much compensation is owed will take place via the portal, going back and forth over a set time period until an agreement is reached. In simple terms, the Claims Portal will not affect the technicalities of the case or your legal rights, it will simply alter the way in which your representatives process it.

No Win No Fee Changes

The ‘No Win No Fee’ system, introduced via the Courts and Legal Services Act 1990 (Section 58), is technically known as Conditional Fee Arrangements, and was introduced to widen access to legal help for those people who were caught in the trap of being too well off to receive Legal Aid, but not wealthy enough to be able to take the gamble of funding their own legal action. The main advantage of Conditional Fee Arrangements was not, as is often thought, that claimants got to keep every penny of any compensation they received but rather that no money had to be paid for legal representation up front. This meant that the only consideration a claimant had to weigh was whether they had a reasonable case to answer, rather than if they could afford to fight it.

By the time the system was completely up and running, in 2000, any lawyer’s fees, rather than being taken from the compensation awarded, had to be paid by the losing side and if you were unlucky enough to lose you case then the fees involved would be covered by insurance. In 2008, in response to a growing conception that a ‘compensation culture’ had grown up around the no win no fee system, the government of the day commissioned Lord Justice Jackson to look into the reality of the situation. A year later he published the Jackson Report (http://www.judiciary.gov.uk/publications/review-of-civil-litigation-costs-final-report/), which recommended that ‘success fees’ payable to the representatives of the person making the claim, rather than being paid by the losing party, would be taken out of any compensation awarded, up to a maximum of 25%. Another recommendation was that compensation payments across the board should be increased by 10%. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, introducing these changes.

Although the changes clearly altered the landscape of personal injury claims, reducing the amount a claimant would ultimately receive, they did not alter the basic tenet underlying conditional fee arrangements, namely that the injured party could make a claim against the negligent party without having to pay any money up front. The utilisation of After the Event (ATE) insurance, meanwhile, meant that any costs payable in the event of an unsuccessful claim would be covered by a policy taken out at the start of the process.

Medical Assessment

Since a major aspect of mounting a claim for compensation involves demonstrating that the incident concerned caused you to suffer an injury or become ill, it will be necessary for you to pay a visit to an independent doctor. Although your own medical records may form part of the case – just one reason why you should seek medical attention at the earliest opportunity – a thorough examination by another doctor, during which you will be able to explain exactly what happened to you, will help to establish precisely the type and severity of the injury you’ve suffered. It is also an opportunity for you to set down on record the degree to which your life has been affected, any help you’ve required (even that which has been provided free of charge by friends and family) and how much time you’ve had to take off work.

Court

In many cases of personal injury, the threat of litigation is enough, in itself, to persuade the other party to admit liability and offer compensation. It will then be the job of your legal representative to assess any offer made and use their know-how and experience to advise as to whether it represents a fair offer, in the light of the illness or injury you’ve suffered and any expense incurred. If liability is denied, however, then you will have to appear in court to have your case decided by a judge or panel of judges.

In most cases it will not be as daunting as the ornate and formal court settings usually portrayed on television, and the process will simply take the form of you and your representatives presenting the details of your case as calmly and clearly as possible. After weighing the evidence, the judge or judges will then decide whether you are eligible for compensation and how much you should receive.

Timeline of a Claim

Many people, when embarking upon a compensation claim, ask two basic questions; how long will the claim take to complete, and how much compensation will they receive. Whilst an experienced personal injury lawyer may be able to give an estimate (and only ever an estimate) of the latter, the length of time a claim will take can vary wildly depending upon the circumstances.

As stated, many cases are resolved very quickly, with the negligent party admitting liability and offering compensation, but, if liability is denied then the length of time it will take to push the case through the court process will depend upon the complexity of the issues involved. Some cases, such as those involving medical negligence, are much more complicated and lengthy than others. Leaving aside the actual timescale, however, the timeline of the average personal injury claim will pan out as follows:

• When you begin to feel that you may have been injured or made ill through the negligence of another party and would therefore like to seek compensation, the first step is to retain the services of a personal injury lawyer on a ‘no win no fee’ basis. Once in place, they will be able to guide you every step of the way, answering any questions and offering expert advice.
• The next step is to file a claim, which basically amounts to giving the details of your case to the court, or entering them via the Claims Portal. Once this has been done, the other party will be informed of your intention to claim compensation.
• The other party will respond by either admitting or denying liability. If they accept that they have been negligent and make an offer, then it will be up to your lawyer to either accept the offer or seek more compensation. If they deny liability then you may have to go to court to present your case.
• Your lawyer will build the strongest possible case, using the evidence you provide and anything else which will bolster your claim, such as witness statements, medical records, police reports and the details of any financial impact.
• The case will be presented to the court and, if you are awarded compensation then, since April 2013, your lawyer will receive a ‘success fee’ taken from this compensation, to a value of no more than 25% of the amount awarded.