Severe and Life Changing Injury Guide

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1 Supporting people affected by acquired brain injury Severe and Life Changing Injury Guide Funded by Lawyers ahead of the curve Freephone

2 Withy King Serious Injury Specialists We ll give you a quick and straightforward assessment of your claim. We pride ourselves on demystifying legal jargon and will explain everything in plain English so your choices are clear. Free no obligation initial advice Specialist Personal Injury Solicitors No Win No Fee agreements (Conditional Fee Agreement) Law Society accredited Phone us on: for free legal advice. Headway Oxfordshire Supporting people affected by acquired brain injury, across Oxfordshire... Headway Oxfordshire offers a holistic approach to providing support and services to meet the needs of individuals with brain injury, and their family and carers. We encourage and support the individual to develop old and new personal skills, in a bid to respond to the changes in their life. Headway s Activity and Rehabilitation Centre is situated in Kennington, Oxford and we provide a subsidised transport service allowing people living across Oxfordshire to access the Centre. Services and therapies available include physiotherapy within a well-equipped gym, speech and language therapy, memory workshops, brain gym, yoga and tai chi, IT and specialised software, art, music and crafts all delivered in an environment of fun and peer support. Outreach community support is available throughout Oxfordshire for individuals who may not need, or wish to attend, the Centre. For more information visit our website

3 Severe and Life Changing Injury Guide 1. Introduction 4 2. First Steps The police investigation Work life or Education Home life and Emotional Support Finances and Avoiding Debt 6 3. Criminal Prosecutions Offences Pleading and Trial Standard of Proof Sentencing 8 4. Seeking Compensation Insurance/Funding Finding the Right Solicitor Time limits Compensation Pain Suffering and Loss of Amenity Past Financial Loss Future Financial Loss Personal Injury Trusts Dealing with the Media Collisions Abroad Useful Contacts Notes 14 Acronyms CPS Crown Prosecution Service FLO Family Liaison Officer CFA Conditional Fee Agreement BTE Before the Event Insurance policy

4 1. Introduction The purpose of this Guide is to provide you with advice and guidance on dealing with the immediate and long term aftermath of a road traffic collision that has resulted in you suffering a severe and possibly life changing injury. Over the following pages you will find advice and information on a wide range of issues, including the importance of obtaining appropriate medical treatment and emotional support; advice on financial matters and the benefits system. Other areas covered include dealing with the consequences of having a collision abroad and investigating the possibility of pursuing a personal injury claim in respect of the collision. 2. First Steps 2.1. The police investigation By now the first stage of the police investigation will already have taken place; this is the at scene investigation stage of the process. When the police arrived at the scene of the collision their first priority will have been to secure the scene to preserve any evidence. The police will have carried out a thorough inspection of the collision location and recorded any essential information such as the location of the vehicles. The police will have carried out a check of any street furniture, for example checking the traffic signals to ensure that they were operating correctly when the collision occurred. Local CCTV may also have been checked. If there was evidence that a criminal offence had been committed, it may be that arrests were made at the scene of the collision. Generally speaking, only brief statements are taken at this point and the parties involved will be interviewed in more detail later on, prior to formal witness statements being prepared. This is also the case for any witnesses who were present at the time of the collision. It may be that, for whatever reason, details of witnesses to a collision were not taken at the time and in those circumstances, the investigating police officers may make a plea for witnesses to come forward. 4

5 Severe and Life Changing Injury Guide 2. First Steps A site investigation will also be carried out and the Collision Investigator will contact the Local Authority for any relevant site information. Following the collision, the police will also make various checks on the drivers involved in the collision, to include a check of their eye sight, general health and their driving history. Insurance details will also be followed up and checked. Criminal charges At the end of an investigation, a decision will be made by the police as to whether the matter should be referred to the CPS (Crown Prosecution Service). The police are under no obligation to recommend what charges should be brought and ultimately it is for the CPS to decide whether charges are brought and, if so, what they are. It is worth noting that just because a case is referred to the CPS it does not automatically mean that there will be a criminal prosecution and it may be that the CPS decides not to proceed with a prosecution. If that is the case, it is usual for the CPS to explain their decision Work Life or Education Suffering a serious and possibly life changing injury can obviously have a massive impact on your ability to earn a living, or to continue with your studies. Understandably, this is often a cause of worry for many. It may be that you are unable to return to work, or your studies, for some time, whilst you undergo rehabilitation. When you do return, it may be in a different capacity or only once various adaptations have been agreed and put in place. In rare circumstances, injuries can be so severe that a return to work is not ultimately possible. It is important that you keep your employer and/or education provider up to date with the situation and your progress. If you are in employment, you may be protected by disability discrimination legislation and if you have any issues with your employment situation, you may wish to contact the Citizens Advice Bureau (CAB) or a solicitor. If you are currently midway through a course, you may want to consider contacting the university or college to defer your future year s education. The financial consequences of being unable to work, whether you are employed or self-employed, are dealt with in paragraph Home Life and Emotional Support Suffering a severe and life changing injury has an enormous emotional impact on both the injured party and their family. It is perfectly normal to feel a range of emotions including sadness, apprehension, anger and frustration. You may spend a great deal of time in a specialist hospital receiving rehabilitative care. Alternatively, you may be able to come home relatively quickly. It is perfectly natural to feel an initial struggle in a home environment. Many people look forward to returning home in the 5

6 Severe and Life Changing Injury Guide 2. First Steps hope that then things will return to normal. However, in some cases it can soon become apparent that there will be long-term implications and that adjustments will need to be made. This can be a challenging time and the importance of finding the right support cannot be underestimated. For example, it may be that some form of counselling or therapy could be helpful. Alternatively, it is often the case that support groups can help enormously. Help and support is available for both you and members of your family who may be affected by the consequences of the road traffic collision. If you require help and support you should consider speaking to your GP or one of the charitable organisations listed in this guide Finances and Avoiding Debt A major cause for anxiety for anyone who has suffered a severe and life changing injury is how they will manage their finances. Certain employers will pay some form of company sick pay, but this is unlikely to cover overtime or bonuses that you may previously have been earning. If you have an entitlement to statutory sick pay, this is likely to be paid via your employer, however payment will not continue indefinitely. If you are self-employed, your situation is likely to be more acute if you are unable to work. If you are pursuing a Personal Injury claim it may be that you can obtain an interim payment to help with your finances, please see section 4 below for further information. In all cases, it is very important that you check whether there are any state benefits that either you or your family members caring for you are entitled to claim. For example you or members of your family may now be eligible for Council Tax Benefit, Carer's Allowance, Disability Living Allowance, Employment and Support Allowance, Housing Benefit, Incapacity Benefit, Income Support and Statutory Sick Pay. The government website offers a great deal of advice and assistance on claiming benefits. Alternatively, the Citizens Advice Bureau (CAB) may be able to assist you in this area. Many charities also have dedicated benefits advisors who will be able to assist you in ensuring that you are correctly claiming any benefits to which you are entitled. You should also check whether you have any critical illness/injury cover as a part of any loans, store cards, or insurance policies that you may hold. Such cover may be available and it is always worth checking with providers. In the immediate aftermath of a collision, it is understandably very easy to lose control of finances. If you are responsible for paying the mortgage, rent or any household bills, it is important that you tell your landlord, mortgage company and utilities providers about your situation as soon as possible. Again, they may be able to suspend payments for a certain period or sort out a more flexible payment scheme for you. The most important thing is that you do not simply stop paying your bills as this may lead to you facing an eviction notice or civil enforcement action. There are small steps that can be taken to minimise your outgoings, for example, if you signed up for gym membership or an expensive phone contract, it may be that your provider is willing to suspend or even terminate your contract for a set period of time. 6

7 3. Criminal Prosecutions At 2.1, we explored the initial police investigation that precedes a decision on whether or not there will be a criminal prosecution. If the CPS decides to prosecute the driver, then there are three different types of offence they can be charged with Offences The first is a summary offence, which includes such offences as careless driving. This type of case would be heard in the Magistrates Court. The second is an either way offence that could be heard in either the Magistrates Court or the Crown Court and includes charges such as causing death by careless driving. The third is an indictable offence which is always heard in the Crown Court and this includes such charges as causing death by dangerous driving Pleading and Trial If the driver pleads guilty, the case will go straight to sentencing and there will be no public trial to examine the evidence. If the driver has pleaded guilty at the first point they were able to do so, their sentence will be reduced by one third. If the driver pleads not guilty, the matter will proceed to a trial. The CPS aims to start Crown Court trials within 16 weeks of the case being sent to them by the Magistrates Court. If you have a case in the Crown Court, it should be possible for you to arrange a pre-court visit through the witness service unit at the court, to familiarise yourself with the court before you have to return for the trial. Once the trial begins it will follow a standardised format with prosecution witnesses being called to give evidence first. You should also be aware that the Defendant is never obliged to speak in court and as such you may never hear their version of events. When a trial is held in the Crown Court, generally speaking there will be a jury who will decide whether or not they believe the defendant is guilty or not guilty. They will not determine the sentence as this is a matter for the Judge. If the trial is in the Magistrates Court there is no jury, so the verdict will be decided by the Magistrates, or District Judge if a District Judge is sitting at the trial. If a criminal prosecution is on-going in respect of your collision, you should prepare yourself for the possibility of a not guilty verdict. Generally speaking criminal prosecutions for driving related offences result in a guilty verdict, however for a variety of reasons cases can collapse and not guilty verdicts do occur. 7

8 Severe and Life Changing Injury Guide 3. Criminal Prosecutions 3.3. Standard of Proof The standard of proof on a jury in a criminal matter is different to that in a civil matter, for example, when pursuing a personal injury claim. In a criminal matter the Jury must believe beyond all reasonable doubt in the Defendant s guilt. The Jury does not need to be unanimous in its decision and the Judge can allow a majority verdict if ten of the twelve jurors agree. It is worth noting that the standard of proof in a civil matter, such as a Personal Injury claim, is on the balance of probabilities. This is a much lower standard of proof and means that even if the criminal prosecution is unsuccessful or there is no criminal prosecution, there is still every chance that a civil Personal Injury claim would be successful Sentencing Sentencing may not be dealt with straightaway, but should normally be done within four weeks of the end of the trial. When deciding on the sentence the Judge must follow the guidelines issued by the Sentencing Advisory Panel. If the Defendant has any previous convictions, these will be read out in court before sentencing as they may have a bearing on the sentence given. The previous offences will not be brought to the Jury s attention for the purposes of deciding guilt. You should also prepare yourself for the plea in mitigation that may be put forward by the Defendant should they be found guilty. This is effectively a report prepared by the Defence team designed to argue for the lowest possible sentence. The plea in mitigation may include some content that you find very difficult and you should prepare yourself for this. You should also be aware that even after a conviction; the Defendant may have the right to appeal the conviction. 8

9 4. Seeking Compensation Even if there has not been a successful criminal prosecution as a result of the collision, it is still possible to bring a personal injury claim. This is due to the lower standard of proof in such cases, as discussed in section 3.3. Generally, one need only show that the other driver s actions were not those of a reasonably prudent driver. If you have been involved in a collision, it is important that you investigate the possibility of a personal injury claim as this may help to provide financial security and also help you to feel that someone has taken responsibility for what happened to you. If you want to investigate bringing a claim it is important that you do this without delay so that witness statements can be taken quickly, and all aspects of your claim thoroughly investigated. It may also be possible to request an interim payment of compensation from the Defendant Insurance/Funding The principal concern for many people considering a Personal Injury claim is that they may have to pay for legal advice at a time when they have very little money and their financial situation is very uncertain. There are a number of ways that a personal injury claim can be funded. For example, you may have before the event legal expenses insurance (BTE) under your car, home or other insurance. This means that you have effectively paid in advance of your collision for an insurance policy to protect you financially in pursuing a personal injury claim. A quick check of your policy document should enable you to see if you have the benefit of this cover. If you do not have legal expenses insurance, or you choose not to use it, your Solicitor should explain the various funding options available to you. However, the options should normally include a Conditional Fee Agreement whereby the Solicitor agrees to write off their fees should your claim ultimately be unsuccessful Finding the Right Solicitor If you have BTE insurance (discussed above at paragraph 4.1), your insurance company may seek to persuade you to use a solicitor from their panel. You are not obliged to do this and you should take your time to find the solicitor that is right for you. It is very likely that your claim will take a number of years to settle so it is important that you are happy with the legal representation you obtain and you trust the solicitor representing you. Many solicitors will offer an initial meeting free of charge with no obligation to instruct them. There are many organisations that can assist you in locating an appropriate solicitor, for example; the Spinal Injuries Association (SIA); MASS (Motor Accident Solicitors Society); APIL (the 9

10 Severe and Life Changing Injury Guide 4. Seeking Compensation Association of Personal Injury Lawyers); or the Law Society to name but a few. You will find that many solicitors purport to be Personal Injury specialists, but may not in fact have the experience or expertise to deal with serious and life changing injuries. Such injuries could include spinal cord injury, brain injury or other seriously debilitating injuries. In all of these examples, it is vitally important that you ensure the solicitor you instruct has the appropriate expertise and experience Time limits Providing your collision occurred in the UK, you will ordinarily have a period of three years from the date of the collision in which to pursue a personal injury claim. This means that your claim has to be issued in the court by the third anniversary of the collision. In some situations the claim is settled within that time period and the claim never needs to be issued. For various reasons, claims can take longer to settle, or liability may be disputed, in which case the claim will need to be issued to protect your position or to have the matter scheduled for a trial. If you were under 18 at the time the collision happened then the three-year limitation period will run from your 18th birthday. If, either prior to or as a result of the collision, the injured person never has legal capacity, i.e. the capacity to manage their affairs or to make their own decisions, the limitation period will run indefinitely. Capacity is something that would need to be assessed by a qualified medical practitioner and is not something that an individual can judge. You should therefore never assume that you have an indefinite amount of time in which to pursue a claim and should investigate your options as soon as possible Compensation Compensation that is awarded in a successful Personal Injury claim is designed, insofar as possible, to put the claimant in the position they would have been in had the collision not occurred. Clearly it is never possible to return someone who has suffered a severe and life changing injury to the position they were in before the collision. Therefore the only form of compensation available under the current system is financial compensation. Whilst it is impossible to put a price on someone s health, the courts and indeed solicitors must do their best to attempt to value a claim taking into account physical injuries, future care and other needs, lost earnings and a host of other potential losses. Personal injury compensation can be divided into three main categories: Pain Suffering and Loss of Amenity Compensation within this category is awarded for the pain and suffering you have and will continue to experience due to the collision. Awards are also designed to compensate you for your loss of amenity which means that you are being compensated for no longer being able to enjoy your pre-collision lifestyle and hobbies. Awards are based on Court guidelines and previously decided cases of a similar nature. 10

11 Severe and Life Changing Injury Guide 4. Seeking Compensation Past Financial Loss This is compensation for your past financial losses and is designed to cover all financial losses that you have already suffered as a result of a collision, up to the point of settlement or trial. This can include loss of earnings, the cost of care and assistance, medical treatment, specialist aids and equipment and adaptations to your home Future Financial Loss This often forms the largest part of a claim, particularly in severe injury claims. Your solicitor will need to ensure that, insofar as possible, the level of award is sufficient to meet any future loss of earnings and the future cost of care and other medical and non-medical expenses that are likely to be incurred as a result of the collision. In large cases, it is likely that you will also need advice from an Independent Financial Advisor (IFA) regarding the investment of damages and this is something that your solicitor should arrange for you. Depending on the level of compensation and other factors, compensation can be paid in two different ways. In addition to receiving a lump sum, which is usually intended to cover pain and suffering and past losses, as well as future loss of earnings, it is sometimes appropriate for part of a compensation award to be converted into what are known as periodical payments. These are index linked annual payments which are made for the rest of an individual s life and are generally intended to cover the future cost of care and other long-term and recurring expenses. Such awards are particularly helpful when an individual s life expectancy is uncertain, as it will usually ensure that there is sufficient money to pay for ongoing care and other expenses for the rest of the injured person s life Personal Injury Trusts If your Personal Injury claim is successful and you expect to receive a substantial compensation award, you should investigate the possibility of setting up a Personal Injury trust. This is a trust fund which is supported by the Government and is designed to also ensure that awards of compensation are not taken into account when an individual is being assessed for state benefits. When you are investigating pursuing a claim and researching solicitors, you may want to consider instructing a firm of solicitors who can also deal with the Personal Injury trust that you may later need. 11

12 5. Dealing with the Media After your collision, there may be some media interest both in the collision circumstances and in any resultant criminal or civil trial. You may be approached directly by journalists, but you should remember that you are not under any obligation to talk to them. It is entirely your decision whether or not you give any interviews, but you should bear in mind that if there is likely to be a criminal prosecution as a result of the collision, you should not say anything that might impact on this. 6. Collisions Abroad If the road traffic collision in which you were involved happened abroad, it is still possible that you will have the right to seek compensation if another party was to blame for the collision, and you are able to establish who that party was. Depending on the country in which you were injured, there may be very different requirements for pursuing a personal injury claim, to those in the UK. For example, there may be a different limitation period, i.e. the period of time within which you can pursue a claim. Or there may be other essential pre-requisites to pursuing a claim, for example reporting the matter to the police or obtaining immediate medical attention. You may still be able to pursue your personal injury claim in the UK. Alternatively, it may need to be pursued in the country where the collision occurred. In any event, you should seek specialist legal advice without delay to ensure that your position is protected. 12

13 7. Useful Contacts ABIF APIL (Association of Personal Injury Lawyers) Aspire The Back-up Trust Benefits Brake CAB Headway Headway Oxfordshire MASS (Motor Accident Solicitors Society) RoadPeace Samaritans The Silverlining SIA (Spinal Injuries Association) 13

14 8. Notes 14

15 Withy King Serious Injury Specialists We ll give you a quick and straightforward assessment of your claim. We pride ourselves on demystifying legal jargon and will explain everything in plain English so your choices are clear. Free no obligation initial advice Specialist Personal Injury Solicitors No Win No Fee agreements (Conditional Fee Agreement) Law Society accredited Phone us on: for free legal advice. Headway Oxfordshire Supporting people affected by acquired brain injury, across Oxfordshire... Headway Oxfordshire offers a holistic approach to providing support and services to meet the needs of individuals with brain injury, and their family and carers. We encourage and support the individual to develop old and new personal skills, in a bid to respond to the changes in their life. Headway s Activity and Rehabilitation Centre is situated in Kennington, Oxford and we provide a subsidised transport service allowing people living across Oxfordshire to access the Centre. Services and therapies available include physiotherapy within a well-equipped gym, speech and language therapy, memory workshops, brain gym, yoga and tai chi, IT and specialised software, art, music and crafts all delivered in an environment of fun and peer support. Outreach community support is available throughout Oxfordshire for individuals who may not need, or wish to attend, the Centre. For more information visit our website

16 Supporting people affected by acquired brain injury Funded by Lawyers ahead of the curve Freephone

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