Property Search
01/03/2010
NOTES ON MAKING COMPENSATION CLAIMS
Can I claim for any accident that happens to me?
Not all accidents give rise to a 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 is Contributory Negligence?
The onus is on you as the claimant/pursuer to prove this 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 nil in some cases.
What kind of cases do you deal with?
The main ones are:
· Accidents at work – All employers have a duty to provide 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 injury or illness, you have a claim.
· Road traffic accidents – if you are a driver, passenger, pedestrian, and were injured by a driver who drove carelessly or dangerously.
· Accidents in public places – shop, office building, football stadium. Anywhere 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 a publicly maintained street, the local or other authority that has the duty of maintaining and repairing it is liable if they failed in their duty, and this caused you to trip or slip or fall and suffer injury and loss.
· Product liability. If you are poisoned by food or drink products, or a car’s crakes fail and cause a crash. Or if say you are electrocuted by a faulty sander.
· Sports injuries. Usually a rough sport like rugby or karate carries with it the chance of injury. But for deliberate violence by one player you may have a claim if injured. Also if there is negligence on the part of an official such as a referee that leads to or contributes to an accident, he or his governing body may be liable for damages. Note that sports bodies and clubs ought to be heavily insured for this very purpose.
What is time bar?
If you do not get financial settlement before the end of the 3 years, then you have to at least start a court action, or your claim will fall permanently by time bar. Broadly this is 3 years after an incident causing physical harm, or after it came reasonably to your attention that you may have a condition that would cause a claim to be made. For professional negligence, say by a solicitor, not involving physical harm the period is 5 years.
What happens if the accident takes place offshore or abroad?
If you are injured while on holiday abroad, you may have a claim against the tour operator if you are on a package. If you booked flights and accommodation separately, you will have to sue the person or company responsible abroad, in the foreign courts. If you are working for a company abroad that is based in the UK, the general rule is that your claim would take place in the courts of the country where the accident occurred. However, this rule can be overcome if there are significant factors which connect the injury to another country. The domicile or place of business of the employer would help to decide which country is more appropriate to go to court. Therefore, it is likely that the employer would be sued in the UK courts. If the company has a registered place of business in the United States, it may be profitable to try and sue there in light of the higher compensation awards. Foreign territorial waters are regarded as part of the appropriate country. If you are to sue abroad, it is important to bear in mind that different jurisdictions have different time bars and procedural rules.
What evidence is needed to prove negligence?
Evidence can be by eye or personal witness, by medical personnel who treated you or have been asked for expert opinion – this can include GP, and specialists in the appropriate field of medical expertise; documentation; research material – anything that will help your lawyers to show that the accident was the fault of the opponent and that their conduct did not meet the standard required by the law. Where there is injury you must get suitable medical evidence.
What evidence is needed to prove financial loss?
It is usually down to paperwork - written confirmation from employers as to wages lost, if an accident causes time off work; expenses incurred in additional transport such as taxis to clinics, pharmacy costs for prescriptions, equipment for medical or other treatment; fees dues for specialist reports on loss of employability or suitable re-employment;
How is compensation calculated?
Compensation is based on the loss and injury you have suffered, not on the culpability of the person who caused the accident or whatever. We do not, unlike some other legal systems, have punitive or exemplary damages. For example, two cars hit two pedestrians. One victim has multiple fractures and is off work for months, the other just has a bruised shin. Both drivers were equally careless. The first claimant will get tens of thousands, but the other, a few hundred pounds.
What categories of compensation are there?
Compensation is under a number of headings. The main ones are:
- solatium (called general damages in England) – for the pain and suffering. While logically it is nonsense to say that a broken wrist is worth one amount, an amputated arm is worth another, post-traumatic stress disorder is worth yet another, the law has built up a price list for all sorts of diseases and injuries, and which can also be increased or reduced by additional factors such as age and condition of the victim. Courts are bound by decisions of previous courts in cases involving similar injuries. There are now volumes of case reports which can be checked by courts, solicitors and insurance companies to compare and value claims;
- loss of earnings – if you are off work because of an injury caused by someone else’s fault, then it is fair that that person or their insurers pay you back wages you have lost; if by the time the claim is settled or the court decides on an award you are still off work, then compensation for future loss of earnings is assessed. This is done with the assistance of medical evidence of the prognosis of your recovery in the future, as well as specialist evidence from an employment consultant if for example you cannot return to your previous employment and must look for new and less well-paid work; loss of society – if you are suing after a lived one has died, you can get compensation on well-accepted scales. But this is an unsatisfactory area of damages, as the awards are pitiful when you consider the hurt of losing a child or a parent;
- out-of-pocket expenses. This may include necessary taxi fares to clinics for treatment, hire of a vehicle while yours is off the road, replacement of lost or damaged property, and many more examples;
- services. If you have been injured and require either professional care, or additional care provided by a family member, or both, this can be calculated financially and claimed from the opponent;
- loss of society: for a close family member whose (mainly) parent, child or spouse has been killed in an accident
- loss of support: if that deceased person was say a husband whose earnings were relied upon by a claimant widow and children
- and of course legal expenses
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.
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