Not all worplace accidents, personal injury accidents, or injuries at work give rise to a compensation claim.

Our law is a fault-based system, so to obtain damages (the legal word for compensation), you must prove that someone else failed to carry out their duty not to harm you, and that you have suffered either financial or property loss, and/or pain and injury.

 

What if I was partially at fault?

The onus is on you as the claimant/pursuer to prove lack of care or breach of duty. If you contributed to the accident by your own carelessness, then this is contributory negligence and may reduce your award by a suitable percentage , even right down to nothing in some cases.

What kind of compensation claims & accident cases do you deal with?

The main ones are:

Workplace Accidents /Accidents at work

All employers have a duty to provide a reasonably safe environment, and they are responsible (by vicarious liability) for the actions of their other employees as they affect you.

If you are given faulty equipment to work with, or an employer or co-worker negligently causes you to be harmed, or if an unsafe system of work is organised, or if health and safety or other requirements are broken, and you sustain a workplace injury or illness, you will be entitled to make a compensation claim.

Contact our solicitors in Glasgow & East Kilbride for expert assistance.

Road traffic accidents

If you are a driver, passenger, pedestrian, and were injured by a driver who drove carelessly or dangerously then you may be entitled to make a compensation claim.

Contact our solicitors in Glasgow & East Kilbride for expert legal advice.

Accidents in public places

If you have an accident in shop, office building, football stadium or anywhere else the public have a right to be, the Occupier ( i.e. whoever manages the premises or area commercially or privately) is responsible for everyone’s safety.

Yoghurt spilled on a supermarket floor, a signboard falling off the frontage of a hotel, lights going out as you descend a stair at the bank may all be the cause of claimable accidents.

Accidents in the street or pavement.

If you have an accident, such as a slip and trip, in publicly maintained street then youmay be entitled to make a compensation claim against the local or other authority responsible for maintaining and repairing it.

Such an authority will be liable if they failed in their duty, and this caused you to trip or slip or fall and suffer injury and loss.

Contact our solicitors in Glasgow & East Kilbride for expert assistance.

Product Liability

Product liability cases arise in situations such as those where you have been affected by food poisoning after eating particular food or drink products, or a car’s brakes fail and cause a crash.

Contact our solicitors in Glasgow & East Kilbride for expert assistance.

• Sports injuries.

Rough sports like rugby or karate carry with them the chance of injury, but you may still be entitled to make a compensation claim for a sports injury sustained as a direct result of a deliberate act of violence.

A compensation claim may also be submitted if your injury has been sustained as a result of negligence on the part of an official, such as a referee, that leads to or contributes to an accident. Sport clubd and bodies are often very well insured for this purpose.

How do I know if I am getting a good settlement?

You have to trust your legal team. Don’t listen to unqualified persons or friends telling you that they read in the paper last week of a worker who bruised his shin and got a a hundred thousand pounds. But we as solicitors are happy to show you the legal basis of the award or settlement by reference to the decided court cases we are using as a guide to yours. In Scottish law – and English - the award or settlement should be based on comparisons with other similar decided and recorded court cases. And whether your claim is in Scotland or England, both systems use each other’s case as comparisons.

How long will a court case take?

Once a case is in court, it will take usually at least months and often years to be completed, even when your lawyers are doing everything as quickly as they can. Our courts are not speedy, and insurance companies are not enthusiastic to pay out.

What are the costs? What is No Win No Fee in practice?

If a case is settled out of court, the insurance company working for the person against whom you are claiming will pay a set fee to your lawyer and also the outlays such as medical report fees you have incurred. However, this may not cover all your costs, in which case an agreed part of your award will be taken towards the balance of costs. This should be worked out in advance before you accept a settlement, so you know exactly what you are getting.

If your lawyer is working on a speculative basis (sometimes known as No Win No Fee) then he may be entitled to a higher fee than he would if simply charging you for work done as it goes along. Your solicitor should make you aware of the basis of the fees charged at the outset of the case. If a case has to go to court instead of being settled out of court, and assuming you win or get a settlement before the end of the court case, fees may be charge differently.

You may not get the insurance company to pay for fees and costs incurred before the commencement of the court part of the case. But as to the court costs themselves, the loser usually pays the winner’s. The exceptions to this are if the case settles before the end, in which case it is up to the parties to agree what is to happen to costs, or if you as the pursuer is on civil legal aid, in which case if you lose, your costs are normally nil. If you win, the opponents pay them.

Is legal aid available for damages cases?

Yes – both advice and assistance, and civil legal aid, as long as you meet the personal financial criteria of income and capital. Your solicitor can assess you for this. However, if an award is made or settlement received, the Scottish Legal Aid Board has first call on the money to pays the legal fees incurred. This has always been a fundamental rule of legal aid, and solicitors in settling a claim must make sure as far as possible that an insurer pays the legal costs or the bulk of them over and above the compensation. Or if the settlement is a global one, the solicitor must make you aware before you accept of how much is to be deducted from your award to give a net figure to you.

What is “beating the tender”?

If you are suing for damages, and the defender/insurance company put in a minute of tender, this is a written statement that they are prepared to pay you a set sum in damages. If you do not accept it, then if at the end of the case the sheriff or judge awards you no more than that figure (note the judge does not see the amount as the court copy of the minute is sealed and closed until the end of the case), you will be liable for all the costs incurred from the date of the tender onwards, on the basis that such work has been caused by you seeking an unrealistic or excessive figure.

Who decides on my claim – a judge or a jury?,

In the vast majority of civil cases the matter is decided by a single sheriff or judge. In some very large or special cases there is a right in the Court of Session only to have a civil jury decide the issues of liability and the amount of damages to be awarded.

Do I get the whole of my award or are there deductions?

If as a result of the accident or illness you have received state benefits of certain sorts which you would not have been entitled to if you had not had the accident, then the Benefits Agency may have a right to claw them back. Under the present system the CRU (Compensation Recovery Unit) of the Benefits Agency claws back these benefits from the insurance company which pays the compensation, but they are deducted from part of your award, and so in effect you pay them. You instinctively think of this as a reduction of your full compensation, but logically you are only paying back what you have got extra in benefits.

If you got no recoverable benefits, there is no deduction from the award. Compensation Recovery, as it is properly called, is deducted only from the loss of earnings part of the award or settlement, not from the solatium element. Painful but consistent. Also if your legal team have been working on a no-win-no-fee basis, there may be a sum due to them out of your award - but not a percentage as in American civil practice.

Can I get interim payments during a claim?

Yes, though this is usually in cases only where liability is already admitted by the insurer and a settlement is therefore in effect guaranteed. There are no rules about interim payments, it is up to your side and the opposition to negotiate, based on what you urgently need. This is a double-edged sword, as the more interim award you get, the less you will necessarily get at the end of the case. Remember that compensation once paid cannot be revisited, it is in full and final settlement for all losses present and future, so you cannot go back later and ask for more after a final award. So being careful with money for the long-term is the best policy.

How do I get criminal injuries compensation?

If you have been the victim of a crime then you may be entitled to financial compensation from the Criminal Injuries Compensation Authority. You can get the application form from a solicitor, CAB, or from the Authority itself. You complete and submit it, and the Authority investigates the case and decides what if any award to make.

If you are dissatisfied with the amount of the award or if you are refused completely, you may appeal, and attend a hearing to present your reasons for appeal to a panel of the Authority presided over by a QC (you can be legally represented but legal aid is not available). Reasons for refusing an award include: being drunk and aggressive to provoke the attack, being a willing participant in a fight, or having previous criminal convictions yourself.

The essence of a successful claim is that you are a genuinely innocent victim of a deliberate act of violence. There are special rules where the attack is by a family member with whom you are or were living. In almost every case you must make the application no later than 2 years after the event complained of, or else your right is lost by time bar. The compensation is on a strict tariff system, which you can check in a booklet supplied by the CICA.

What if I am injured by an uninsured car driver?

Drivers are of course required to be insured at all times so that injury and damage caused to 3rd parties will always be paid for. It is an offence to drive without insurance in place. However, it happens. The insurance industry has an agreement that victims of uninsured drivers are compensated by the Motor Insurers Bureau, which in effect steps in as a “legal” insurer, and processes a claim in the normal way. It reserves the right to seek repayment of any outlay it makes from the uninsured driver, but the victim of the driver does not need to be concerned with this, getting settlement from the MIB

Do I need an independent witness to prove the other driver was at fault?

No. if there is clear enough evidence from one source of the negligence of the other driver, that can be sufficient (it is in there criminal law, not civil claims, that corroboration is always required). Remember that even if there is only one eye-witness, there will often be physical or circumstantial evidence – the other driver was breathalysed and found positive, there are skid marks on the road from his side leading to yours, his car’s brakes were defective)

How do I go about starting a claim for personal injuries, and what happens?

If you are a driver, you should report the accident to your insurer, even if not your fault. The insurer may want to negotiate with the other insurance company, though this will be about the damage to vehicles. You should consult a solicitor sand provide him or her with all information and evidence about the accident. The solicitor will intimate by letter a claim for damages against the other driver, and tell him to pass the matter on to his insurers and/or lawyers. it is usual for the other driver’s insurers to carry out their own investigation, and let your lawyer know if they admit liability or not.

Your lawyer in the meantime will be collecting evidence from witnesses, getting a police accident report, obtaining medical evidence of your injuries, information on any losses such as lost earnings you have suffered. He will assess the claim and work out the appropriate compensation due. If the insurance company admits liability (i.e. agrees their driver was to blame) then they will proceed to negotiate the amounts of compensation with your solicitor. If agreement can be reached between you and the insurer, settlement will take place and you will receive payment.

If no acceptable offer is made after all, then your choices are to accept the offer anyway, or to proceed to raise a court action against the other driver, leaving it up to a judge or sheriff to award compensation. Now although this is a fairly lengthy answer, it is no more than a thumbnail sketch of a claim process. Claims take months and years, and can go through many slow and tortuous stages. Insurance companies try to make them go even more slowly than they ought. Be patient. For other kinds of accident or illness – at work, or as a result of medical negligence, the same principles of gathering evidence and taking legal advice apply. But if you want to know more, call us or e-mail us.

What if the insurance company says I was to blame for the accident?

The previous answer can apply to you in reverse – you may be the “other driver” and your insurer may have to negotiate the claim on your behalf. But if you are the claimant, and the other party’s insurer defends its customer by saying the accident was not his fault but either partly or totally yours, then this can cause a range of results. If you deny any part of blame, then you would have to resolve the question of liability at court, by evidence. If you are right, then you will get decree in your favour. If wrong, you will lose your case. But if you admit or are found to be partly to blame, what will happen is that your award will be reduced by a percentage appropriate to your share of the liability. This is known as contributory negligence, and can be any share of the whole from smallest to largest.

If I am the victim of a crash, can I hire a car while my own is off the road being repaired?

Yes you can, though if liability is in dispute with the insurer, you may have to pay the cost of this and claim it back as part of the overall compensation. If liability is admitted, it is usually possible to get an interim payment from the insurer to cover essential/urgent costs.

Do I need to be represented by the lawyer chosen for me by my insurance company?

No, but you would be responsible for agreeing fees with your lawyer beforehand, whereas if it is your insurer’s chosen lawyer, the fees are normally taken care of by the insurer.