A Guide for accident Victims
By Warren Collins, Alexander Harris, Solicitors
Time Limits
For personal injury claims, there is generally a three year time limit from the date of the accident during which legal proceedings must be commenced.
Liability
A claim for compensation will only succeed if the legal fault can be established. This normally involves proving negligence or some breech of statutory duty.
Burden of proof
In civil cases the burden of proof is on the balance of probabilities, i.e. 51%+certainty.
Contributory Negligence
Often, there will be an allegation that his/her accident victim was partly at fault and contributed to his own accident. This may reduce the entire claim for damages proportionately.
How much can be claimed?
There are generally three types of damages that may be claimed in the UK.
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General Damages – these are damages for pain, suffering and loss of ability to pursue a lifestyle that was enjoyed before the accident.
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Special Damages – these damages are for the financial losses that have been incurred up to the date of the settlement or trial. They include medical treatment and therapies, cost of prosthetics, loss of earnings and care.
- Future Losses – these are damages for the likely ongoing costs and will depend on the likely prognosis of recovery or deterioration in the future.
Claims for Prosthetics
The law allows amputees to claim for prosthetics that are available on a private basis – not just those available on the NHS. Here we enter the world of a wide range of prosthetics for different purposes, such as a running leg, cycling leg, and swimming legs. It is possible to make a claim for the most advanced silicone Cosmesis. The test is always one of reasonableness. Your legal team should be able to advise you on this aspect.
Court Procedure
It is important to note that very few cases (only about 5%) end up in a court room at trial. It is usually possible to negotiate a fair statement. If not, the action will start with a letter of claim. If liability is admitted, then the parties go on to deal with quantum (the value of the claim) as a separate issue.
At an early stage, each party will set about getting evidence to support their case. Witness statements will be taken and then exchanged and documents will be disclosed. The most important aspect of preparation will be expert’s reports.
Funding Legal Claims
Expect in very limited circumstances, state funding (by way of legal aid) if compensation claims has been withdrawn. Conditional fee agreements (CFAs) are much misunderstood. Solicitors are prohibited from acting on contingency fee basis (taking a percentage of the damages) in civil litigation cases – anyone offering such arrangements is unlikely to be a qualified solicitor. CFAs work by the solicitor agreeing to waive his/her fees in the event of an unsuccessful claim but charging an enhancement of fees in the event of a successful claim. The success fee as well as the basic fees are claimed from the paying insurance company at the conclusion of the claim on top of and not out of the damages. As the losing party usually meets the winning party's legal costs, an after the event insurance policy is often purchased to cover the insurance company’s legal costs in the event of an unsuccessful claim. The premium of such after event policies will depend on the particular risks of each case.
Choosing the right solicitor
Clearly, catastrophic injury claims are far from straightforward. These claims are complex and mistakes can be costly. Insurers will engage specialist solicitors and it is therefore crucial to maintain an equality of bargaining position. A solicitor should be able to demonstrate his/her experience of handling catastrophic injury claims as well as an ability to explain difficult issues in everyday language. The solicitor should be willing to travel to see the client and provide guidance at all the crucial stages of the claim.
About the Author
Warren Collins can be contacted at Alexander Harris.
About this Guide
The above guide is intended as an introduction to personal injury claims. It is not to be considered to be a precise statement of the law and must not be relied upon in making any decisions about a claim. Legal advise should always be sought.
