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Personal Injury FAQs

Here are some of the Frequently Asked Questions our Solicitors receive from new claims; this list is not exhaustive and if you have a question not answered in this list, please feel free to fill in our online enquiry form along with your question and one of our team will contact you as soon as possible.

 

What type of personal injury cases can we assist you with?

BHP undertakes all types of personal injury cases including accidents at work, road traffic accidents, cycle accidents, spinal injury, brain injuries, catastrophic injuries, accidents at work and school, animal claims and clinical negligence.

 

Why instruct a solicitor direct?

It is important to know that claims management companies do not pursue your claim for you. They are not allowed to and are not qualified to deal with Court Proceedings and as such cannot represent you if your case progresses to Court. As soon as you instruct a claims management company, they will normally have to pass your claim to a firm of solicitors at some point. Claims management companies are therefore little more than a middle man. We advise you to cut out the middle man and deal directly with solicitors who will fight your case.

Once you have asked us to act for you we will send you a letter of engagement. This is something all solicitors have to send to their clients before carrying out any work for them. It summarises your instructions to us and the terms on which we will act.

The terms of which we will act will differ depending on whether you are a Trade Union Member or looking to enter into a conditional fee agreement or wish to pay for your claim privately.

 

What will we do when you instruct us?

We will take a statement from you as soon as possible. We like to do this at a face to face meeting. Based on what you tell us, if we agree you have a claim, we will identify the likely defendant (or defendants) and send a letter of claim. The letter of claim is usually fairly detailed and its format and content must comply with the relevant pre-action protocol.

A pre-action protocol is a framework set down by The Ministry of Justice governing the dealing with the parties (the claimant and defendant) up to the point of issuing proceedings.

Once a letter of claim has been sent the defendant has 21 days to acknowledge receipt and a further 3 months to complete their investigation in respect of liability. When replying the defendant must either deny or admit. If fault is admitted then you have effectively won your claim and we can go on and investigate how much compensation you are entitled to be paid.

If the defendant denies fault or partially admits fault they must firstly give full reasons for their denial and secondly disclose any relevant documents.

Having considered the defendants response and their documents, we will either advise you to press on with your claim and we will carry on investigating liability and full issue on your behalf, or we will advise you that your case is not likely to succeed and should be withdrawn.

 

How can I contact you?

To speak to one of our lawyers, please call 0800 590 019 and ask to speak to our personal injury team. Alternatively, please complete our online enquiry form.

 

Who can claim?

If you are the injured person, then you can claim on your own behalf. You will be identified as the claimant.

If the injured person is under the age of 18 the Court will appoint someone to claim on their behalf called a litigation friend – this is usually a parent or a close relative.

If the injured person is incapacitated and/or cannot make decisions for themselves the Court may also appoint a litigation friend. Again this is usually a close friend or relative.

If a claim is made on behalf of someone who has died then dependents and/or personal representatives have a right to make a claim. The dependents and personal representatives i.e. executor or administrator of the estate are sometimes, but not always the same person. For example; a wife whose husband has died will usually be a financial dependent and able to make a claim for loss of dependency in her own right. Personal representatives (or any one of them) can make a claim on behalf of the estate and the dependents. However, whilst financial dependents have the right to claim on their own behalf, they cannot make a claim on behalf of the estate unless they appoint a personal representative.

 

Can I make a claim?

If you have been injured because of the fault of someone else, you can claim financial compensation through the Courts.

 

Can I still bring a case if the victim has died?

Yes, cases are commonly brought by the widow/widower of the victim, or by the Executors who are named in the victims will.

 

I want to make a claim against my employer; will I lose my job if I make a claim?

There is no reason for you to lose your job. There are a number of employment laws that protect you in the event that you make a claim against your employer. Your employer has a legal responsibility for your health and safety at work. In the event you lose your job our employment team may be able to assist you.

 

Is there a time limit for making a claim?

Yes – in most cases you have 3 years from the date of the accident to settle the matter or Court Proceedings need to be issued. You can make a claim at any point during the 3 years, so generally speaking the earlier you consult a solicitor the better. However, if you do not settle the matter or issue Court Proceedings within 3 years then you are too late to do so and your claim will become statute-barred. The statute in question is the Limitation Act 1980.

If there was no accident as such, for example if you are suffering from an occupational illness such as stress at work – then you have 3 years from the date you first knew (or should have known);

a.       That you suffered from the illness; and

b.       That it is potentially compensatable. Usually this is 3 years from the date of diagnosis.

If someone has died their dependents or personal representatives have 3 years from the date of death to make the claim; if the 3 year period has not passed during the injured person’s lifetime. If the victim is under the age of 18, the 3 year period will not start running until their 18th birthday.

 

What if the time limit has passed?

Occasionally if there is a good reason for the delay a Court will allow a claim to be made out of time; however these incidents are rare and it is a matter for the Court’s discretion.  The safest course of action is to bring a claim within the 3 year limitation period. The only exception to this is for cases involving children.

 

How long will it take before I get compensation?

In most cases, the limiting factor is the length of time which it has to pass before a final opinion can be reached from a medical expert as to the extent in which an injured person has affected a recovery.  In the simple of cases a conclusion may be reached in about 6 months. However, where more serious injuries are sustained then it may take a number of years to get to a point where the medical evidence is sufficiently clear to enable the case to be concluded.

In cases where liability is admitted but the case cannot be concluded quickly because of the nature of the injuries, then it may be possible to obtain an interim payment on account of the final award of compensation to be paid.

 

How is my compensation calculated?

You will be entitled to two kinds of damages for your injury. The first is called general damages and is awarded for the pain and suffering caused by your injury.

The second is called special damages and covers actual financial losses and expenses arising from your injury. This can include loss of earnings, care given to you by your friends and family, costs of treatment, travel costs and many other expenses.

 

What happens if I have a serious injury and can no longer work or care for myself?

More serious injuries, resulting in life long incapacity affecting someone’s ability to work and care for themselves, will attract the larger awards. The compensation consists mainly of compensation for future losses for example loss of earnings and expenses including treatment and care but can also pay for new accommodation if, for example, you need a wheelchair accessible home.

If you recover well from your injury, however serious it was at first, then your potential claim would potentially limited to the claim for general damages, plus some loss of earnings and incidental expenses.

The figures awarded for general damages are determined by Judges by comparison with similar injuries and are frequently lower than expected, even for very serious injuries.

 

Do you take cases on a no win no fee basis?  Does this mean I do not have to pay anything at all?

Yes we do. A panel of the firms solicitors and partners will consider your case to asses your chances of success and decide whether or not we can take your case on a conditional fee agreement (no win no fee).

This means that if you do not win your case, in most circumstances you do not have to pay the firms fees.  You will only be liable for your fees if you win your case, plus a success fee on top, to compensate us for the risk that we might not get paid at all. If you win, most of your legal fees will be recovered from the other side as part of the settlement of your case.

We will give detailed advice about funding before you sign any contract with us to ensure that you fully understand and are happy with the terms of our agreement.

 

What happens if I lose the case?

There are many different answers to this question which will depend on the exact terms of your retainer with your solicitor. The answer below should only be taken as general guidance and you should ensure that your solicitor makes the implications of losing the case clear to you given the method in which you chose to fund your case.

If you lose the case then your liability for legal costs will depend on a number of factors and, in particular, the manner in which a claim is being funded at the point that the claim has reached.

 

What happens if I have legal expenses insurance?

If you have legal expenses insurance then we will contact your legal expenses insurance to seek authority to represent you under the policy.

Where we represent you under a policy of legal expenses insurance then in most cases from the date when cover is confirmed and up to the maximum cover provided by the policy your own and any of your opponents legal costs ordered to be paid by you will be met by the insurers.

 

If I do not have legal expenses insurance can I get it?

In most cases where we represent a claimant under a conditional fee agreement (no win no fee) we will advise in relation to obtaining a policy for an 'after the event' legal expenses insurance. If it is appropriate we will advise that such an application should be made for such cover to be obtained.

 

What is an injury?

Even if someone admits they were at fault, you can only claim compensation if you have suffered an injury (or illness) because of their fault.

Injury means physical or psychological harm. The injury must be more than minimal and you must suffer actual symptoms. Your solicitor will need to get a medical report to confirm that you suffered an injury and to tell the Court:

a.    What the likely cause of the injury is; and

b.    What the extent of the injury is.

 

What is fault?

You can only claim compensation if your injury was caused because of the fault of someone else. Someone is legally at fault (or liable) if they are negligent and/or if you break a law or regulation (known as a breach of statutory duty). Often the injured person (the claimant) will allege that the person at fault (the defendant) was both negligent and in breach of statutory duty.

 

What is negligence?

Negligence is usually defined as behaviour or conduct that is blameworthy because it falls short of what a reasonable person would do to protect another person from a foreseeable risk of harm. If an injured person proves that another person acted negligently and/or in breach of statutory duty to cause his injury, he can recover financial compensation (or damages) for his harm. For example an employer owes a duty of care to ensure he provides his employees with a safe place of work. If he fails to repair a ripped carpet and one of his employee’s trips on it and sprains her ankle, he would be negligently liable to pay financial compensation. There is also a statutory duty on employers to keep walkways clear and in good repair so in this incident the employer would probably be both negligent and in breach of statutory duty.

 

What is financial compensation?

Financial compensation is money. Sometimes compensation is called damages and the amount of damages is called quantum. These are legal terms that you may hear. Financial compensation comes in two parts;

i. General damages:  This is the lump sum payable to compensate the Claimant for the pain, suffering and loss of amenity.  The amount payable is dependent on the seriousness of the harm and the extent of the symptoms or disability.  The general principle is, the more serious the injury the higher the award of general damages.  Judges and solicitors refer to guidelines called, The Judicial College Board Guidelines which are published annually and which classify awards for the most common injuries on a sliding scale of severity.  To be more precisely pinned down the likely award of general damages, Judges and solicitors also refer to actual decided cases (known as case authorities or comparable authorities).

ii. Special damages:  This refers to past and future financial loss that can be proved to be a consequence of the injury.  The most common special damages claimed are loss of earnings, cost of lost or damaged items, cost of medical treatment and drugs.

 

What is partial admission/contributory negligence?

Often a defendant will admit that they were at fault but deny that the accident was wholly their fault. Instead they will allege that the claimant was partly to blame for the injuries. This is known as an allegation of contributory negligence. It is a very common allegation for defendants to make in a personal injury case and if upheld by the Judge will result in a deduction in the amount of compensation payable that is equivalent to the degree of fault attributed to the claimant.

For example if a claimant is injured in a road traffic accident caused by another driver driving into the back of his car (a rear end shunt), and he was not wearing a seatbelt at the time, the defendant will allege that the Court will agree that there should be 25% deduction in the compensation awarded.  This is because if it is accepted by Judges that the claimant’s injuries would not have been so severe had he been wearing his seatbelt.

 

What is expert evidence?

In personal injury cases it is always necessary to obtain an expert medical opinion to advise the Court precisely what injury the accident caused, and what the long term effects are likely to be. The expected duty is to the Court not to the party instructing him or her.

Where injuries are serious or complex more than one expert report will often be needed.

Sometimes medical evidence cannot be obtained immediately because treatment or recovery will be ongoing, or it may simply not be possible to give a long term prognosis until a certain amount of time has passed since the injury. It can be hard for claimants to understand why their claim is being delayed; it can also be frustrating for the solicitor since often matters are out of their hands.

Occasionally a non medical expert will be instructed to advise a Judge on a specialist area such as an accident reconstruction. The principles are the same – the experts duty is always to the Court.

Once final medical evidence is available and agreed it is usually possible to advise how much compensation is likely to be awarded and at this point and offer to settle can be made by either party. Finally it is important to remember that in larger complex cases (typically where the value is over £25,000) both the claimant and the defendant may obtain their own medical evidence. This means that you may need to attend more than one appointment.

If the defendant’s expert evidence is not favourable to them, they do not have to send it to us and you may never see it.

 

What is an offer to settle?

Offers to settle are attempts to agree to an amicable end to the claim without the need to go to Court. An offer to settle can be made at any stage in the claim processed by either party.

A Part 36 Offer is an offer to settle made in accordance with Part 36 of the Civil Procedure Rules (the regulations that relate to a personal injury claim). If a Part 36 Offer made by the defendant is not accepted by the claimant, and the Judge then goes onto award less than the Part 36 Offer, then the claimant has to pay all the defendants costs from the expiry date of the offer to the date of trial. An offer to settle can relate to liability or to the value of the claim.

 

What if the case does not settle?

If the 3 year time period is about to expire or neither party will accept defeat then we will recommend that Court Proceedings are issued.

 

What does issue of Court Proceedings mean?

Issue of Court Proceedings simply means lodging the correct form (the Claim Form) with the correct fee at the Court Office. The Claim Form is stamped with the Court seal and the Court will produce a form called Notice of Issue of Court Proceedings. This document and the sealed Claim Form are called Proceedings. Issue of Court Proceedings does not necessarily mean that a case will go to trial, but is a formal step that starts legal process that ultimately ends with a trial before a Judge in a Court.

As indicated above, you must issue Court Proceedings within 3 years of the date of accident (or date of knowledge if deceased, or date of death if claiming on behalf of someone who has died or 18th birthday victim is under 18).

 

What happens after Court Proceedings have been issued?

Once Court Proceedings are issued they must be served. This can either be done by the Court or by us. There are four months from the date of issue within which the Court Proceedings must be served.

The Court can grant an extension of time for service if there are very good reasons.

Proceedings are served by sending, delivering or handing them to the defendant at their home, place of business or registered head office. Once served, the defendant’s have 14 days to acknowledge receipt of the proceedings. This is done by posting the replies upon the Notice of Issue back to the Court.

In a personal injury claim as well as the Claim Form, other documents must be served within 4 months of issue of proceedings. These are;

i. Particulars of Claim – a formal statement setting out the circumstances of the accident, the fault alleged, the injuries suffered, the medical evidence relied upon and the consequential financial loss.

ii. Medical report – a formal report by a qualified medical practitioner setting out the circumstances of the accident, the injuries suffered and the way in which the injury has or will affect the victim.

iii. The schedule of financial loss – setting out the special damages.

If someone has died the death certificate and Grant of Probate should also be served. If a defendant fails to acknowledge service in time, the claimant can apply to enter judgment. Having acknowledged service the defendant must then file a defence.

 

What is the defence?

A defence is the defendants reply to the particulars of claim. They will either, admit liability, partially admit liability and allege contributory fault or wholly deny liability. The defence is due 14 days after acknowledgement of service is filed, however it is possible for the parties to agree an extension of time for the defence to be filed up to one month. Court permission will be needed for a longer extension of time.

 

What happens after the defence?

The Court will invite the parties to submit a suggested timetable to trial. If the parties cannot agree the Judge will impose a timetable. This timetable is called the Court Directions.

The timetable will usually set out all the steps the parties need to prepare the case and will allocate a trial window within which the trial date will eventually fall. The Court will try to ensure the process is fast as possible and that the issues in dispute are narrowed as far as possible.

The directions will include a date for exchange of documents and for exchange of witness and expert statements and all of the preparations needed to be ready for trial.

 

What is a list of documents?

A list of all the documents that a party intends to rely on in support of their case.

 

What is exchange of witness and expert evidence?

Each party will send their witness and expert evidence to the other parties on a designated date set by the Court. The parties will be able to put questions to each others expert witnesses, again to try and avoid the issues in dispute.

 

What if the case still has not settled?

If amicable settlement is simply not possible then there will be a trial in Court to be presided over by a Judge. You will probably need to attend and answer questions from the defendant’s barrister and the Judge. This is usually not as daunting as it sounds, and you should note that only 5% of all claims end up in Court.

 

Will I have to go to Court?

It is rare that a claim will proceed to a final hearing before the Court which you would have to attend. However in limited circumstances this cannot be avoided and there would be the need.

 

Ruth Markham Partner
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