Guide to Personal Injury Claims

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1 PART 1 - INTRODUCTION Our initial meeting At our first meeting, we will discuss the circumstances of your case and the prospects of obtaining compensation (damages) for your injury. We will explain to you the process by which liability is established and the process by which damages are assessed and quantified. We will discuss any investigative steps which may need to be undertaken in order to prove liability or to quantify the value of your damages. We shall confirm your instructions with a view to commencing the claim by intimation to the opponent or the opponent s insurers. We shall discuss with you how the legal procedures are to be funded. Where applicable, we shall discuss no win no fee arrangements. If you are eligible for legal aid we will assist in applying for that help. If you wish to check if you are eligible for legal aid please go to the Scottish Legal Aid Board site ( Pre-litigation and Out of Court settlements Wherever possible, our aim in the first instance is to settle your claim swiftly and by way of correspondence with the opponent or the opponent s insurers. Court action In some cases, however, it may become necessary to take the claim to court. Court action may become necessary where liability is disputed or where the value of the claim is disputed. Alternatively court action may be necessary in order to avoid your claim becoming time barred (see the section below entitled time limits ). Whenever it becomes in your interests to take the matter to court, we will represent you throughout the court process. The action may be raised in the Sheriff Court or

2 in the Court of Session. The choice of court will be discussed with you and is usually determined by the value of the claim. We fully understand that the prospect of raising a court action can seem daunting. Should court action become necessary we shall fully explain the procedures and the cost implications. PART 2 - PERSONAL INJURY LAW Accidents at work There is a wealth of government legislation intended to protect you in the workplace. Such legislation and regulations include:- The Workplace (Health, Safety and Welfare) Regulations these regulate many aspects of the workplace including the condition of floors, steps, stairs, passages and gangways. There is also regulation of lighting, ventilation and cleanliness. Importantly for office workers, these regulations impose an obligation upon employers to ensure that an employee s seating and workstation is suitable for its purpose. Has your employer breached these regulations causing you injury? Telephone or us now for further advice. The Provision and Use of Work Equipment Regulations 1998 these regulate the suitability of work equipment. There is a requirement for employers to ensure that work equipment is maintained in efficient working order and inspected at suitable intervals. These include important regulations giving workers protection against specified hazards in the workplace. Has your employer breached these regulations causing

3 you injury? Telephone The Management of Health and Safety at Work regulations 1999 these are important regulations obliging every employer to make a suitable and sufficient assessment of the risks to the health and safety of anybody in the workplace. The regulations also make sure that what is in the risk assessment is passed onto workers. Has your employer breached these regulations causing you injury? Telephone The Manual Handling Operations Regulations 1992 the phrase manual handling operation means any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force. These regulations provide that employers must make a suitable and sufficient assessment of all such operations undertaken by employees in the workplace and make sure that what is in the risk assessment is passed onto workers. Appropriate steps must then be taken by the employer to reduce the risk of injury to the lowest level reasonably practicable. Has your employer breached these regulations causing you injury? Telephone Personal Protective Equipment at Work Regulations subject to certain provisos, these regulations oblige every employer to ensure that every employee is provided with suitable personal protective equipment (including footwear) where the employee may be exposed to a risk to health of safety. Has your employer breached these regulations causing you injury? Telephone or us now for further advice.

4 Construction (Design and Management) Regulations 2007 these regulations are specific to the construction industry. They oblige contractors and indeed anyone with control over construction work to ensure that the site is kept safe for all the workers on site. Obligations are imposed regarding specific issues. Examples include the stability of structures, excavations, demolition, explosions, traffic routes, vehicles, emergency procedures and more. Has your employer or anyone else breached these regulations causing you injury? Telephone The Lifting Operations and Lifting Equipments Regulations 1998 these relate to any operation at work concerned with the lifting or lowering of a load. Obligations are placed on employers to ensure such operations (and equipment used for such operations) are as safe as reasonably practicable. Has your employer breached these regulations causing you injury? Telephone or us now for further advice. The Work at Height Regulations 2005 these regulations are usually associated with the construction industry but can apply to any workplace where employees are required to work at height. There is an obligation upon every employer to ensure that such work is properly planned, appropriately supervised and carried out in a manner which is safe insofar as reasonably practicable. The employer must ensure that employees working at height are competent to do so or, if being trained, adequately supervised. In addition to the requirement to carry out a risk assessment and make sure that what is in the risk assessment is passed onto workers, specific obligations are placed upon employers in relation to matters such as guardrails, working platforms,

5 scaffolding, inspection of equipment, personal fall protection systems and more. Has your employer breached these regulations causing you injury? Telephone or us now for further advice. Control of Asbestos at Work Regulations 2002 these provide that any employer shall not carry out work which exposes (or is liable to expose) employees to asbestos unless he carries out a suitable risk assessment and implements various steps specified in these regulations. The requirements are detailed and complex. Has your employer breached these regulations causing you injury? Telephone Merchant Shipping (Safety Movement Onboard Ship) Regulations 1988 for those working on shipping (other than fishing vessels) these regulation impose certain obligations on the employer and master to ensure the safety of employees. There must be safe means of access to all parts of the ship to which the employee is expected to go. Specific obligations are imposed upon the employer and master in relation to lighting, guardrails, ladders, movement of vehicles and more. Has your employer breached these regulations causing you injury? Telephone or us now for further advice. Protection from Harassment Act 1997 under this Act, the courts have confirmed that employers are vicariously liable for harassment by their employees. If you have been injured as a result of a course of conduct amounting to harassment at work by an employer (or by another employee) you may be entitled to compensation.

6 We can advise you further regarding the circumstances of your individual case. Telephone Road Traffic Accidents If you have been injured as a pedestrian, cyclist or driver or passenger in a car, we are here to help. The legal tests for liability are embedded in Common Law i.e. law which has been created in the courts over the course of many years. The general rules are that: the damage must have been caused by someone who had a duty to take reasonable care not to cause you injury; the circumstances must be such that a reasonable person would have been aware that there was a risk of causing you injury; a reasonable person could have taken precautions to avoid the risk of injury; the loss you are claiming is for something a reasonable person would anticipate could arise in relation to the kind of injury inflicted. Often the identity of the person at fault is already known to you. In some circumstances, the identity may require to be established by further investigation such as police report or witness statement. If the person at fault is an uninsured driver or an untraced hit-and-run driver it is still possible to seek compensation by making a claim with the Motor Insurers Bureau. We can assist you in submitting the claim and in dealing with the Motor Insurers Bureau on your behalf. Such claims operate under framework provided by the Motor Insurers Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999 the Motor Insurers

7 Bureau (Compensation of Victims of Untraced Drivers) Agreement Telephone Medical Negligence The long-established legal test for medical negligence arises from a court case called Hunter v Hanley. To establish liability against a doctor for medical negligence it must be proved (1) that there is a usual and normal practice; (2) that that practice has not been adopted; and (3) that the course adopted was such that no doctor acting with ordinary care would have taken. To advise you regarding a claim arising from medical negligence, in the first instance we require to recover copies of your medical records, and thereafter to obtain a medico-legal report from a consultant in the relevant medical field. Telephone Slip and Trip claims If you have been injured in a Slip and Trip incident in the workplace, compensation may be sought from the employer if the employer contravened the Workplace (Health, Safety and Welfare) Regulations (see above). Outside of the workplace, other individuals/organisation have legal duties to take reasonable care for members of the public. Examples include the duty of a local authority to take reasonable steps to inspect and repair roads and pathways for which they are responsible. The test applied to such claims is one of reasonableness. We can advise you on whether the circumstances of your accident support a claim against such an organisation. Telephone

8 Compensation for Criminal Injuries Under the Criminal Injuries Compensation Acts, a claim for compensation may be submitted to the Criminal Injuries Compensation Authority in respect of an injury directly attributable to a crime of violence. The award of compensation is calculated with reference to a statutory scale of awards. The claim must be received by the CICA within two years of the crime. We will assist you in dealing with the CICA and advising on any offer of award. Telephone Other Types of Personal Injury claim It may be that the circumstances of your accident do not fit neatly into any of the above categories. Legislation and/or Common Law principles and precedents may nevertheless support a claim for compensation. Telephone or us now for further advice. Part 3 - Time Limits Time is of the essence is any personal injury claim. The rules which exclude late claims can have a devastating effect and you may lose the right to claim compensation entirely. You MUST bring any court action to recover your losses within strict time limits which are normally: Three years of the date of the accident for physical injury (note however that where a criminal act gave rise to the physical injury, any claim to the Criminal Injuries Compensation Authority must be submitted within two years of the incident, and

9 Five years from that date for other losses, for example damage to property. The law about time limits (known as prescription and limitation ) is complicated and legal advice will be essential but the rules do have exceptions which may come to the aid of a late claimant: injury to a child the three years only starts to run when the child reaches 16 years. death of the injured party if death occurs within three years of the accident then a further period of three years is allowed from the date of death. mental incapacity- any period of time when the injured party is mentally unfit will be ignored lack of knowledge the injured party must know : - the injuries in question were serious enough to justify raising an action for recovery of loss - the injuries were attributable to an act or omission of someone - the identity of the person ( or that person s employer where acting in the course of employment) who committed the act or omission latent defects - the time limit runs from when the defect emerges and causes loss or from the time when with reasonable diligence it could have been discovered. Section 19A discretion - the courts have the power to extend the time for claims (for physical injury only) where it is fair and equitable to do so under the provisions of this section of the Prescription and Limitation (Scotland) Act 1973 (as amended). This power is only used by the court sparingly and a very good excuse needs to be

10 advanced: for example, in one case, not only had the person who caused the injury died but so had the first person appointed to be responsible for his affairs resulting in a chain of confusion and misinformation. The court held that it was not the claimant s fault that he ran out of time trying to unravel who to sue and allowed the case to proceed. Part 4 - Conclusion The law promotes safety by imposing legal duties of care upon individuals and organisations relating to your personal safety. We aim to ensure that you are fairly compensated when you are injured as a result of such duties being ignored or breached. If you are injured in an accident, you should seek our early legal advice. Telephone

11 For more detailed advice tailored to your needs please contact one of the following people: Graeme Duncan Don Uttley