All too often newspaper articles focus on the amount of compensation ‘won’ following an accident, but behind every claim there is someone who has suffered an injury that was not their fault and they are often left with severe injuries which will affect their life for many years to come. The compensation awarded will assist with rehabilitation, medical treatment, future care needs, loss or reduction to future earnings, the purchase of specialist equipment needed as a result of their injuries and housing adaptations.
When commencing a claim for compensation following major trauma injury, it may seem a long and complex journey ahead. Whilst each major trauma claim is different, in this article we explain the path your claim will follow, including what will happen when and why.
Time limit for bringing a claim following major trauma injury
There are strict time limits for pursuing a personal injury claim. The general rule is that court proceedings must be started within 3 years of the date of the accident. However there are some exceptions to this, including in the case of a child when the deadline is their 21st birthday and if someone lacks mental capacity, then time limits do not apply, although if they regain mental capacity at any point, the 3 year time limit would commence.
If the claim arises from a criminal assault or incident then the time limit is 2 years from the date of injury and a claim can be made to the Criminal Injuries Compensation Authority.
Bringing a claim on behalf of a child or someone who lacks mental capacity
If the injured person is under 18 years or age, or lacks legal capacity to manage their affairs, a Litigation Friend (often a spouse, parent or family member of the person with the injury) is appointed to conduct the litigation on behalf of the injured person. If no one can undertake this duty, the Court of Protection will get involved with the case.
The first steps in bringing a claim following major trauma injury
If you think that you may have a claim, the first thing to do is to contact a specialist personal injury solicitor – claims can take many years to reach settlement, so it is advisable to speak to at least 3 solicitors to find one you are comfortable with. The solicitor will obtain information about the accident from you and advise whether your claim is worth pursuing and likely to be successful.
They will also discuss different options available for funding a personal injury claim. Most solicitors will offer a Conditional Fee Agreement, more commonly known as a “no win no fee” agreement, but cover may also be available under an existing insurance policy that has legal expenses cover included – this is known as before the event insurance, or BTE for short.
The first meeting with the solicitor may be difficult: many questions will be asked, and a lot of information will be given to you at a time when there are lots of other things you need to deal with. This is why it is important to choose the right solicitor who understands all the issues and can guide you through the process.
If the injured person is an adult and in employment at the time of the injury, they and their family will probably have several immediate concerns in addition to caring for the person injured including:
- financial issues;
- housing issues;
- employment issues;
- childcare issues;
- rehabilitation and treatment
The starting point in any potential claim is to ascertain what the person injured and their family want to achieve.
Investigating the claim
Your solicitor will need to gather evidence about the accident. This may involve obtaining a police report if you were involved in a road traffic accident or reports from the Health and Safety Executive if your accident was at work. Photographs and witness statements may be obtained and a visit to the scene of the accident may take place as part of the investigation work carried out by your solicitor.
Details of the claim will then be submitted to the Defendant who will notify their insurers of the claim. They have 3 months to investigate the allegations and decide whether they admit or deny liability for the accident.
In this early period of the process the Defendant’s insurers can be asked to provide immediate financial help to assist with rehabilitation, regardless of their decision on liability. They will not always agree to provide it, but if they do this can be a great help if care and treatment is needed that cannot be provided by the NHS. Depending on your injuries, a case manager may be appointed to assist you and your family and to help you access treatment that you need and to identify your immediate needs and how these should be met.
The Defendant’s response
If liability is denied it will be necessary to obtain evidence to prove liability. The Defendants may accept liability, but argue that the injured person is also partly liable for their injuries, this is known as contributory negligence. In these circumstances discussions are held with the Defendant and agreement reached as to how liability may be split. An example of contributory negligence could be when a drunk driver crashes into another persons car, but that person was not wearing a seatbelt and therefore sustained more serious injuries than would otherwise have been the case. In these circumstances, split liability may be agreed at, say 75% the drunk driver’s fault and 25% the injured person’s fault. This results in a reduction of 25% to the overall compensation award to take account of the split liability.
If liability is established in your favour, your solicitor will still need to obtain evidence regarding your losses and evidence from medical experts to quantify your injuries before your claim can be settled. The quantification of losses is explained below in further detail.
Obtaining evidence to value your claim
Your solicitor will need to obtain your medical records as well as medical evidence from an independent doctor, or doctors depending on the severity of your injuries. These independent doctors will assess you and prepare a report for the Court on your injuries. Depending on the nature of your injuries, several different assessments may take place, for example, if you have broken bones in the accident then it would be necessary to obtain a report from an orthopaedic surgeon and if you have a head injury it would be necessary to obtain reports from a neurologist and possibly other experts.
Your solicitor will also need to gather information about any financial losses you have incurred and will incur in the future. There are a number of losses that can be claimed for as part of a personal injury claim including:
- Loss of earnings
- Loss of pension
- Travel expenses
- Care and assistance provided by family and professionals
- Cost of medication or medical treatment
- Cost of aids/appliances/equipment
- Cost of new accommodation if your existing property is no longer suitable
Once all medical evidence and details of financial losses have been gathered, your solicitor will be able to tell you what the value of your claim is likely to be.
How Much Compensation?
Compensation can be claimed for the injury itself (called ‘general damages’) and for any financial losses, including future losses, caused by the accident (called ‘special damages’).
General damages cover compensation for the pain, suffering and loss of enjoyment of life that has resulted from the accident. It is usually helpful to keep a diary of the problems you are encountering on a day-to-day basis because of the injury; this will assist in the preparation of witness statements and in informing the medical experts once they have been asked to prepare a report.
You may also be entitled to compensation for ‘special damages’, which may include the losses mentioned above such as medical fees, loss of earnings and travel expenses which have arisen as a result of the injury.
If the Defendant admits liability then they will be provided with the evidence and negotiations will take place to reach a settlement figure.
If a suitable settlement figure cannot be reached, or the Defendants will not negotiate because they deny liability then court proceedings will need to be commenced and ultimately a Judge will decide the outcome.
In some cases, it may be possible to get an interim payment at an earlier stage in the claim to assist with immediate financial needs.
Once proceedings are commenced, your solicitor should pursue the case vigorously on your behalf. This will involve further evidence being obtained in order to prepare the case for a final hearing known as a trial. It is often possible for a settlement to be reached before a full trial, but if not, your solicitor will arrange representation for you at the trial, usually by a barrister.
How long will it take?
It is very difficult to predict how long a personal injury claim will take. The factors that determine how long it will take include the medical situation, the availability of the experts your solicitor instructs and whether the Defendant instructs their own experts as well as the response of the Defendant. Usually once proceedings have been commenced in Court, it will take up to two years to reach a conclusion. Proceedings cannot be commenced until details of the claim have been sent to the Defendant, medical evidence is obtained and at least some information has been provided as to the losses that have been incurred.
A specialist solicitor’s role does not necessarily end when settlement is received. If required, they can provide you with access to an independent financial adviser to discuss whether a personal injury trust is needed, which can be useful to protect means tested benefits following receipt of a compensation award, or for advice as to investing the compensation received. There may be other professionals that need to be contacted if they have not already been contacted during the claim, such as professional carers, property advisers or therapists. If a case manager has been used during the claim then they can assist you in the future with arranging what you need. If the injured person lacks capacity then a financial deputy may have been appointed to manage financial affairs in the future.
How soon should I speak to a solicitor?
Whilst bringing a claim for damages may not be your first thought following an accident, your focus may be on your injuries and recovery, it is a good idea to speak to a specialist solicitor as early as possible following your accident.
Can Major Trauma Group help?
Major Trauma Group is a network of specialist serious injury law firms, experienced in dealing with claims following major trauma. We can provide assistance to clients throughout England and Wales and we are supported by a medical clinician who can advise on rehabilitation, independent financial advisers and case managers who are all highly experienced in this field.