Employers Liability and Public Liability Claims

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1 Employers Liability and Public Liability Claims A brief guide to the claims process Table on contents: Introduction... 2 Parties to a claim... 3 The claims process... 3 Time limit for bringing a claim... 3 The need to prove your claim... 4 Proving your claim... 4 Duty to mitigate your own loss... 5 Your compensation... 5 Benefits... 9 Timescale of your claim... 9 Funding... 9 Typical disbursements...11 Qualified One Way Costs Shifting...11 Contact details...12

2 Introduction Where a claim arises from an accident occurring on or after 31 st July 2013, or in a disease claim where no letter of claim has been sent to the Defendant before 31 st July 2013, and the claim includes a claim for damages in respect of personal injury and the claim is valued at more than 1,000 but not more than 25,000, then new procedures apply. Under the old Rules, a claim was started by the Claimant s solicitor submitting a letter of claim to the Defendant (employer, local authority, etc) who then had 21 days from the date of that letter in which to pass that letter onto their insurers and to confirm that they had done so and provide the Claimant s solicitors with the contact details for their insurers. The insurers then had up to 3 months to investigate and confirm their standpoint on liability. Under the new Rules, instead of submitting a letter of claim to the employer/local authority, etc (setting out the circumstances of the accident, injuries sustained and why it is alleged that they are at fault, which was the case prior to 31 st July 2013), all claims falling within the scope of the new Rules must now be submitted electronically, via a secure online portal. The idea behind this, is that it should speed up the claims process and make it less costly. The new process will only apply to claims where liability is admitted. As such, the claim should be progressed swiftly by the insurers through 3 stages: Stage 1: Stage 2: submission of the claim submission of medical evidence and offer to settle Stage 3: Court hearing if settlement cannot be reached at stage 2 Strict deadlines apply to the insurers in terms of responding to the claim. Failing to stick to those deadlines means that the claim will fall out of this new process and will become subject to the old Rules ; in which case, the Defendant s insurers will have up to 3 months to investigate and confirm their standpoint on liability. Claims where liability is not admitted, or where liability is admitted but contributory negligence* is alleged, or where there is a failure by the insurer to respond within the prescribed time limits for doing so, will come out of this new process and be subject to the old Rules. * contributory negligence means you are partly to blame for your injury/injuries If your claim ceases to proceed under the new Rules, then your claim may come to the stage where we advise you to issue proceedings to pursue it further. For instance, if, having come out of the portal, the Defendant or his/her insurers continue to deny liability and we feel on the available evidence at that stage that you have a valid claim, then we may advise you to issue proceedings to pursue your claim further. Sometimes it may be necessary to issue a claim, even though the claim has come out of the portal and liability has subsequently been admitted, because we have not been able to agree a settlement of your claim with the Defendant or his/her insurers and they argue that your claim is worth less than we think you should be awarded. For further details as to what is involved if that were to happen, and generally, see our other guide Personal Injury Claims a brief guide as to the claims process. 2

3 Parties to a claim As with any other personal injury claim, the person who brings a claim is called the Claimant. The person(s) you are making the claim against is called the Defendant(s). The claims process As stated above, assuming your claim proceeds under the new Rules, then the first stage will be to submit the claim via the secure online portal to the Defendant s insurers. The Defendant s insurers will then have up to 30 days (40 days where the claim is a public liability claim) from the date the claim is submitted to confirm if liability is disputed or not. If liability is admitted within those 30 (40) days, the claim then proceeds to stage 2. If the insurers fail to respond after 30(40) days, or if liability is denied, then the claim exits the new claims process and becomes subject to the old regime. At stage 2, a settlement pack is submitted via the secure online portal containing details of your losses as a result of the accident (see notes on special damages in the your compensation section below), a copy of the medical report that will have been obtained, and an offer to settle the claim. Details of your loss of earnings (if any) must be provided to the Defendant s insurer within 20 days of the date of the admission of liability. The Defendant s insurers will then have up to 35 days to consider the settlement pack. This comprises 15 days in which to consider the settlement pack and make an offer to settle (or accept the Claimant s offer to settle) followed by up to a further 20 days to allow for further negotiation to try and settle the claim before proceeding to stage 3 (although the parties can agree to extend that period). If the claim can be settled at stage 2, the insurer should issue a cheque for your damages ( compensation ) within 10 days. If the Defendant s insurer fails to respond to the offer to settle during the 35 day period, then the claim falls out of the new process and the old Rules apply. If stage 3 is reached, there can be a hearing for the Court to decide the value of the claim. The majority of stage 3 hearings, however, are dealt with as a paper exercise by the Court so there will be no need for you to attend at Court. The judge will reach a decision based on the paper evidence and the claim is then concluded. Time limit for bringing a claim The time limit for issuing any personal injury proceedings, which includes injuries sustained as the result of an accident at work, or a slip or trip on a public highway or in a shop or supermarket, is 3 years from the date of the accident (ie after 3 years a claim can be successfully defended on the grounds that it was brought too late). That same time limit applies if your claim is being pursued under the new regime. This can cause problems where a claim is submitted close to the end of the 3 year period. In such circumstances the Claimant should issue proceedings and seek permission from the Court to stay (i.e. put on hold ) the claim. The proceedings can be reactivated later if necessary, if, for instance, it has not been possible to settle your claim at Stage 2. 3

4 The need to prove your claim Personal injury claims are civil claims and subject to the civil burden and standard of proof. To succeed with your claim, you must be able to prove the facts of your claim with evidence - on what is called the balance of probabilities, ie you must be able to prove that your case has the higher probability of being correct. You must also be able to prove that you have suffered injury/injuries because of the Defendant s fault. The fact that you have had an accident and suffered injury is not enough. There must be a recognisable duty (at law) owed to you by the Defendant(s) which, through the Defendant s acts or omissions (failing to act) has been breached, thereby causing you to suffer injury and loss. Proving your claim As soon as possible after the accident, you should start keeping copies of any relevant correspondence and originals of any relevant documents and anything else which you feel will help prove your claim. This can include: - letters from your employer, from the hospital or your GP, etc; - s; - photographs of the scene of the accident; and - photographs of your injuries. You can claim for the injury itself (or injuries) and also for other out of pocket expenses (see later in this guide). To prove any losses you are claiming, other than compensation for your injury/injuries, you should also keep: any receipts relating to your injuries, e.g. taxis to and from the hospital or to and from your GP for review or follow up appointments after your initial treatment; any receipts relating to prescription charges, purchase of any special equipment, etc; a pain diary so that you can record your symptoms and how your injury/injuries affect you on a daily basis; a note of any time spent by your spouse or partner, or friends and family, helping you do things that but for the accident, you would have done yourself. This can be help with every day things such as getting washed and showered, getting dressed; having someone cook your meals; having someone do the washing up and tidying for you if but for the accident, you would have done these tasks yourself. If you have suffered loss of earnings, we will need to see your payslips for the period of loss in addition to your payslips for the period 13 weeks prior to the date of your accident. If you no longer have these then we can send you a form of authority for you to sign and return to us, to allow us to contact your employer for this information. We will also need to see a copy of your contract of employment or statement of terms. Please also provide details of any witnesses. 4

5 Duty to mitigate your own loss As a Claimant, you are under an obligation duty to keep the losses caused by the Defendant(s) as low as possible. You must ensure, for instance, that you attend any follow up appointments at the hospital or see your GP as soon as possible after the accident, if you are advised to do so, and follow any advice given to you. You should also try to return to work as soon as you are able to do so, provided your GP or hospital staff have no objections. If you have lost your job because of your injury/injuries, but are actively seeking alternative employment, keep copies of all applications and responses to show that you have taken steps to mitigate/minimise your loss. Your compensation The compensation for your injury/injuries falls into 2 separate categories called general damages and special damages. Together, they make up the overall value of your claim. Special damages are your out of pocket expenses or other financial losses as a result of the accident. They can include travel to and from hospital, and or to see your GP; damage to property as a result of the accident; past loss of earnings and past unpaid care and assistance provided by friends or family members. There are too many possible out of pocket expenses to list. If in doubt, ask, and we will let you know if you are able to claim that expense or not. If we are to claim for any assistance given by your spouse/partner or friends and family, we will need to know: (a) what tasks you required assistance with; (b) who provided that assistance and for how long for, ie how many weeks; and, (c) on average, how many hours per day was this assistance given. General damages is compensation for your actual injury/injuries. Strictly speaking, general damages include pain and suffering; loss of amenity; disadvantage on the labour market; loss of job satisfaction; loss of use of a vehicle and any future financial losses. Damages for pain, suffering and loss of amenity are calculated with reference to case law and what are called the Judicial College (formerly the Judicial Studies Board) Guidelines for the Assessment of General Damages in Personal Injury Cases, which suggest awards for particular types of injury/injuries. 5

6 For instance: Type of injury Nature of award Head Very severe brain damage: 207, ,000 Moderately severe brain damage: 161, ,250 Moderate brain damage: 31, ,000 Minor brain damage: 11,250-31,600 Minor head injury: 1,625-9,400 Epilepsy: 7, ,300 Hand Total or effective loss of both hands: 103, ,000 Serious damage to both hands: 41,300-62,150 Total or effective loss of one hand: 70,650-80,600 Serious hand injuries: 21,300-45,500 Less serious hand injury: 10,600-21,300 Moderate hand injury: 4,600-9,750 Minor hand injury: 670-3,190 NB there are different awards for injury to one or both thumbs, amputation of or fractures to fingers, injuries to the wrist, etc and for Vibration White Finger ( VWF ) and other industrial injuries Shoulder Severe: 14,100-35,300 Serious: 9,400-14,100 Moderate, ie frozen shoulder : 5,800-9,400 Minor: 3,200-5,800 but less where recovery is within a year of the date of the accident Fracture of clavicle: 3,800-9,000 Arm Amputation (loss of both arms): 177, ,500 Amputation (loss of one arm): 70,650 - not less than 6

7 100,800 Severe injuries: 70,650-96,250 Less severe: 14,100-28,750 Leg Amputations: 72, ,250 Severe leg injuries: 20, ,000 Less serious leg injuries: up to 6,700 (simple fractures) 20,400 Ankle Very severe: 36,800-51,200 Serious: 23,000-36,800 Moderate: 10,100-19,550 Modest injuries: up to 10,100 Knee Severe: 19,250-70,700 Moderate: to 19,250 Back Severe: 28, ,300 Moderate: 9,200-28,500 Minor: 5,800-9,200 where recover is within 2-5 years of the date of the accident; 1,550 up to 5,800 where recovery is within 2 years Eye Total blindness: up to 297,000 Total loss of one eye: 40,300-48,200 Minor eye injuries: 2,900-6,400 Transient eye injuries: 1,620-2,900 Skeletal injuries Multiple Fractures of Facial Bones: 11,000 to 17,600 Fractures of Nose or Nasal Complex: 1,250 (simple undisplaced fracture) - 17,000 Fractures of Cheekbones: 1,700-11,600 Fractures of Jaws: 4,750 (simple fracture) to 33,500 (very serious multiple fractures) 7

8 Teeth a) loss of or serious damage to several front teeth: 6,400 to 8,400 b) loss of or serious damage to two front teeth: 3,200 to 5,600 c) loss of or serious damage to one front tooth: 1,620 to 2,900 d) loss of or damage to back teeth: per tooth: 800 to 1,250 Facial disfigurement Very Severe Scarring (women): 35,600 to 71,500 Less Significant Scarring (women): 2,900 to 35,600 Very Severe Scarring (men): 21,900 to 48,250 Less Significant Scarring (men): 2,900 to 22,100 Scarring to other parts of the body Psychiatric injury/stress A large proportion of awards for a number of noticeable scars, or a single disfiguring scar, of leg(s), arm(s), hand(s), back or chest (male), fall in the bracket of 5,500 to 16,700. A single noticeable scar, or several superficial scars, of leg(s), arm(s) or hand(s), with some minor cosmetic deficit attract(s) awards of between 1,750 and 5,600 Severe: 40,300-85,000 Moderately severe: 14,000-40,300 Moderate: 4,300-14,000 Minor: 1,125-4,300 Post Traumatic Stress Disorder Severe: 44,000 to 74,000 Moderately severe: 17,700 to 44,000 Moderate: 6,000-17,000 Minor: 2,900-6,000 The Judicial College Guidelines do, however, go into far more detail than this and also set out ranges of awards for a lot of different injuries that we have not been able to cover here: e.g. deafness; loss of taste and smell; chest injuries; lung disease; asbestos-related disease; injuries to the pelvis; spleen; and bowels; injury/injuries to the reproductive organs and damage to hair. 8

9 Calculating general damages is not as straightforward as matching your particular injury/injuries to a section in the Judicial College guidelines. The ranges of awards set out in the Judicial College Guidelines are guidelines only as to the type of award you might expect to recover. Each case turns on its particular facts and on what can be supported by the available medical evidence. Benefits Please let us know if as a result of the accident, you are receiving any State benefits. If you receive any benefits as a result of being injured, the Defendant will have to repay those benefits to the Government. There is a specialist unit set up by the Government called the Compensation Recovery Unit (or CRU ) which seeks to claw back the benefits paid from any relevant compensation you recover. The CRU will tell the Defendant(s) how much benefit has been paid to you. The Defendant(s) then has to withhold this amount from any compensation they agree to pay you and forward that amount to the CRU. This can impact on the amount of compensation you receive. Timescale of your claim Your claim should be resolved within 3-5 months of submission via the secure online portal. If your claim falls out of the new regime, then different timescales will apply. If your case becomes subject to the old Rules, then typically, a relatively straightforward case can take from months to conclude. More complex cases can take longer. If proceedings have to be issued, then depending on what track the case is allocated to, a claim can take a further months to conclude, unless settled before trial. You will have heard of the small claims track, which is for relatively simple cases. So far as personal injury cases are concerned, for your claim to be a small claim the value of your claim for personal injury must be worth less than 1,000 and the total value of the claim must not exceed 10,000. Cases where the value of the claim for personal injury is worth more than 1,000 but not more than 25,000 will usually be allocated to what is called the fast track. Claims with a value of 25,000 or more will usually be allocated to what is called the multi-track. For the purposes of this guide, all you need to know is that what track a claim is allocated to determines how much Court time and resources are to be allocated to the claim. Multi track cases often involve complex legal and factual issues necessitating more of the Court s time to determine those issues. Multi track cases may also involve the Court hearing evidence from several witnesses which means that it will take longer than a day for any trial to conclude. Typically fast track trials last no more than a day. Funding Solicitors costs under the new Rules are now fixed, but still recoverable from the Defendant s insurer. The new Rules set fixed costs for each stage of the process: Fixed costs in relation to the EL/PL Protocol Where the value of the claim for damages is not more than 10,000 Where the value of the claim for damages is more than 10,000, but not more than 25,000 9

10 Stage 1 fixed costs 300 Stage 1 fixed costs 300 Stage 2 fixed costs 600 Stage 2 fixed costs 1300 Stage 3 - Type A fixed costs Stage 3 - Type B fixed costs Stage 3 - Type C fixed costs 250 Stage 3 - Type A fixed costs 250 Stage 3 - Type B fixed costs 150 Stage 3 - Type C fixed costs In the event that the claim comes out of the portal, then fixed costs, albeit different fixed costs, still apply, depending on whether a settlement is reached before proceedings in the County Court are issued, or if proceedings have been issued, the stage of those proceedings at which any settlement is reached: Fixed costs where a claim no longer continues under the EL/PL Protocol employers liability claims A. If Parties reach a settlement prior to the claimant issuing proceedings under Part 7 Agreed damages At least 1,000, but not more than 5,000 More than 5,000, but not more than 10,000 More than 10,000, but not more than 25,000 Fixed costs (a) 950; and (b) 17.5% of the damages (a) 1,855; and (b) 12.5% of damages over 5,000 (a) 2,500; and (b) 10% of damages over 10,000 B. If proceedings are issued under Part 7, but the case settles before trial Stage at which case is settled On or after the date of issue, but prior to the date of allocation under Part 26 On or after the date of allocation under Part 26, but prior to the date of listing On or after the date of listing but prior the date of trial Fixed costs (a) 2,630; and (b) 20% of the damages (a) 3,350; and (b) 25% of the damages (a) 4,280; and (b) 30% of the damages C. If the claim is disposed of at trial Fixed costs (a) 4,280; (b) 30% of the damages agreed or awarded; and (c) the relevant trial advocacy fee D. Trial advocacy fees Damages agreed or awarded Not more than 3,000 More than 3,000, but not more than 10,000 More than 10,000, but not more than 15,000 More than 15,000 Trial advocacy fee ,070 1,705 Because of the potential for a claim to come out of the portal at any stage, we would still suggest you pursue your claim under a conditional fee, or no win no fee agreement. A conditional fee agreement or CFA is an agreement with a legal representative which provides for his or her fees and expenses, or any part of them, to be paid only in certain circumstances - usually only if the client wins the case. 10

11 Under the rules governing CFA agreements, where the CFA applies, we are entitled to charge a success fee, ie an uplift, of 12.5% to 100% on our basic charges, which we will be entitled to claim from you, as the Claimant, on the successful conclusion of the claim. Previously, a success fee was recoverable from your opponent, or rather, their insurers, but in April 2013, the rules on recoverability of success fees changed, so that the success element of any CFA agreement is recoverable from you as the Claimant, subject to a maximum cap of 25% of any damages, ie compensation, you may recover. Typical disbursements Typical disbursements include the cost of obtaining copies of your hospital and GP records, which the medical expert will need to see when he/she comes to prepare the report on your injuries. Usually copy GP records cost about 50 and copy hospital records about 30. The cost of a medical report varies but is usually about plus VAT. Although we would expect the Defendant s insurers to reimburse us the cost of these disbursements on the successful conclusion of your claim, it may be that we will ask you to let us have money on account of these disbursements, as a condition of taking on your claim, or alternatively, ask that you take out some insurance cover to make sure that the cost of these disbursements is ultimately recoverable. If proceedings are issued, then further disbursements will include the issue fee and other Court fees allocation fee; fee on filing of the pre-trial checklist; and, trial fee (see our other guide Personal Injury Claims a brief guide as to the claims process for further details). However, as with the cost of your copy medical records and cost of your medical report, you should get these fees back on the successful conclusion of your claim. Qualified One Way Costs Shifting One of the other major changes to come into effect as from 1 st April 2013, when the rules relating to success fees changed, is the introduction of the concept of qualified one way costs shifting. This concept can best be summarised as follows: Successful Claimants will still recover their costs from Defendants in the ordinary way (apart from the success fee element) When a Claimant loses, however, each party now effectively bears their own costs unless the Defendant gets a costs order against the Claimant (where, for instance, a Claimant has unreasonably rejected an earlier offer to settle by the Defendant and the claim proceeds to trial where the Claimant then fails to beat that offer, ie obtain an award of damages that is at least as advantageous to the Claimant as the proposals contained in the Defendant s earlier offer to settle). However, that costs order can only be enforced after trial, up to the level of any damages awarded. So successful Defendants can still get costs orders against Claimants in the normal way, but qualified one way costs shifting limits the extent to which such orders can be enforced. Also, if you make an unsuccessful application before trial, or are forced to defend an application before trial by the Defendant, and are unsuccessful in opposing that application, then the Court can still make a costs order against you. You can take out insurance to guard against this and we will advise you in more detail should that become relevant. 11

12 Contact details If at any time, you have any questions about your claim or the claims process itself, then please do not hesitate to contact us. Please ask for: Steven Partridge Director and Head of our Litigation Department Tel: Fax: Jethro Powell Solicitor in our Litigation Department Tel: Fax: York Office Ware & Kay Solicitors Ltd Sentinel House Peasholme Green York YO1 7PP Tel: Fax: Wetherby Office Ware & Kay Solicitors Ltd The Aire Suite Brunswick Court Wetherby LS22 6RE Tel: Fax: To find out how we can help you in the other important areas of your life, take a look at the different services for individuals we provide: dispute resolution; residential and commercial property; employment; family and matrimonial; will and probate and estate and trust planning. Financial Services We can now also offer advice on financial products through our separate Independent Financial Adviser business, Ware & Kay Financial Services Ltd. The service is provided by qualified and experienced financial advisers, dedicated to providing financial solutions for Ware & Kay clients and selecting the best products available from the whole market. The initial discussion is without obligation, is free of charge and can be held at our offices or at your home. Fees for further advice are discussed at this first meeting. If you require advice in relation to any area of Financial Services please contact our offices on York or contact us at 12

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