At Austin Lafferty, we deal with accidents at work, work-related illness, road accidents, public liability cases and much more on a regular basis.
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 – for a close family member whose (mainly) parent, child or spouse has been killed in an accident; 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;
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;
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.
Accidents and illness may 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.
We use a state-of-the-art case management IT system, and have access to all the best medical and technical experts and QC’s.
A free first consultation face-to-face with an expert solicitor is available, at which a discussion of your claim and the various options for charging fees (including no-win-no-fee) can be considered.
Watch our brief guide video to find out more about compensation claims in Scotland, or view it on YouTube here.
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.
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.
How soon after an accident do I have to make a claim?
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.
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.
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.
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.
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.
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 or 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.
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.
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 clubs and bodies are often very well insured for this purpose.
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 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.
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.
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 cost. 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. If you win, the opponents pay them.
What happens if my accident takes place abroad or offshore?
If you are injured while on holiday abroad and you were on a package holiday then you may have a claim against the tour operator.
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.