Personal Injury Claims

Transcription

1 Personal Injury Claims A brief guide as to the claims process Table of contest: Time limit for bringing a claim... 2 Parties to a claim... 2 The need to prove your claim... 2 Proving your claim... 2 Duty to mitigate your own loss... 3 The claims process... 3 Your compensation... 4 Benefits... 7 Issuing a claim in the County Court... 8 Directions... 8 Offers to settle... 9 Effect of failing to beat offer... 9 Costs assessed on the standard basis...10 Costs...10 Timescale of your claim...10 Funding your claim...11 CFA...11 Pay privately...11 Damages Based Agreement...12 Public Funding...12 Typical disbursements...12 Qualified One Way Costs Shifting...13 Contact details...13

2 Time limit for bringing a claim The usual time limit for issuing personal injury proceedings is 3 years from the date of your injury (i.e after 3 years a claim can be successfully defended on the grounds that it has been issued too late). The Court does have a discretion, however, under section 33 of the Limitation Act 1980 to disapply the limitation period if the Court considers it is in the interests of justice to do so. The Court will look at why it is being asked to disapply the limitation period and what prejudice is likely to be caused to the parties if the limitation period is (or is not) disapplied, taking into account all the circumstances of the claim. It is always safer, where possible, to try and settle a claim, or issue proceedings, before the expiry of the 3 year period, as there is no guarantee that the Court will agree to disapply the limitation period. Parties to a 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 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 itself, 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; 2

3 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 you 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. 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. The claims process The first stage in any claim is to establish liability, ie prove that the Defendant(s) is liable to compensate you for your injury/injuries. A claim is started by submitting a detailed letter to the Defendant(s) (known as the letter of claim ) setting out the background to the accident, nature and extent of your injury/injuries, details of any losses known at that stage and details of any anticipated losses. The Defendant then has 21 days from the date of that letter in which to confirm he/she has received it and if they have insurance, that they have passed a copy of that letter onto their insurers. The Defendant or the Defendant s insurers will then have up to 3 months to investigate the claim and confirm their standpoint on liability. If liability is denied, the Defendant, or the Defendant s insurers, should provide us with copies of any documents in their possession which are relevant to the issues in the case and support their standpoint on liability. If liability is not an issue, then the next stage of the claims process is to assess the appropriate amount of compensation, usually with the benefit of medical evidence (a report from a specialist) and possibly also a barrister s opinion. Then we can start negotiating a settlement of your claim. Under the Court Rules, if we instruct a specialist to prepare a report on your injury/injuries, we must try to agree with the Defendant or his/her insurers that that expert can be instructed by both parties to 3

4 prepare a single report. If there is no agreement, then we are entitled to instruct that expert independently. Please note: if you sustained an injury/injuries as the result of a road traffic accident, or an accident at work, or as the result of slipping or tripping on the public highway, or in a supermarket, and we assess the value of your claim as less than 10,000, where you suffered a road traffic accident, or less than 25,000 where the claim is an employer s liability or public liability claim, then different procedures apply. Please ask for our separate guides on road traffic accident claims and or employer s liability and public liability claims, as appropriate. Your compensation 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 and future loss of earnings and professional and 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 the assistance and for how long for, ie how many weeks; and, (c) on average, how many hours per day was this assistance given. A Schedule setting out your claim for special damages should be sent as soon as possible to the Defendant or his/her insurers, with supporting documents. We will draft that Schedule on your behalf, using the information you provide us. General damages is compensation for your actual injury/injuries. Strictly speaking, general damages include pain and suffering; loss of amenity; risk 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 ranges of awards for particular types of injury/injuries. For instance: Head Type of injury Nature of award Very severe brain damage: 207, ,000 Moderately severe brain damage: 161, ,250 Moderate brain damage: 31, ,000 Minor brain damage: 11,250-31,600 4

5 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 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 5

6 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) 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 6

7 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. 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 may have to repay those benefits back 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. 7

8 Issuing a claim in the County Court If 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 liability has 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. A claim is started be serving a Claim Form and what are called Particulars of Claim, setting out the nature of the claim and legal remedy sought (ie compensation for your injury) and paying the appropriate Court issue fee (which varies, depending on the value of your claim). Upon receipt of the Claim Form and Particulars, the Defendant or his/her insurers then have 14 days in which to respond, by either: admitting the claim (in whole or in part); defending the claim; or filing what is called an Acknowledgment of Service, ie they acknowledge receipt of the claim but ask for a further 14 days in which to respond. If liability is admitted we ask that the Court enters judgment in your favour for an amount to be decided by the Court. The Court will also be asked to award you your costs of the claim. If liability is still disputed the claim will proceed as a defended claim (to trial, unless the claim can be settled before trial) and the Court will send out what are called Directions Questionnaires to all parties, which are to be completed and returned to the Court by a specified date, with a cheque/payment of the appropriate Court fee. The Court will then allocate the claim to one of three tracks. 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. Directions Following allocation, the Court will then also issue what are called directions, ie instructions to the parties and their solicitors as to the future conduct of the claim. Typically directions deal with the need to disclose any relevant documents, filing and service of witness statements and what preparations will be necessary should the claim proceed as far as trial. Ninety percent of cases, however, settle before trial. 8

9 Offers to settle Typically, most cases settle before trial because one or other of the parties makes the other an offer to settle the claim. Usually, such offers are made with reference to Part 36 of the Civil Procedure Rules ( Part 36 ), the Court rules governing civil claims, including claims for personal injury. The philosophy behind Part 36 is to encourage settlement. There can be adverse costs consequences if a party in receipt of an offer to settle under Part 36 rejects that offer and then fails to beat that offer at trial. Failing to beat an offer to settle in this context means failing to obtain judgment against the Defendant more advantageous than the Defendant s Part 36 offer, or failing to obtain a judgment against the Defendant that is at least as advantageous to you as the proposals contained in an earlier Part 36 offer to settle made by you. More advantageous means better, in money terms, by any amount, however, small, and at least as advantageous is to be construed similarly. As the Claimant, if you receive an offer to settle from the Defendant, you need to consider carefully whether or not you are likely to beat that offer at trial. It is, however, also open to you, as the Claimant, to make the Defendant an offer to settle. This then puts the Defendant under pressure, to decide if he/she can beat your offer, or otherwise face the costs consequences that apply to Part 36. Effect of failing to beat offer Claimant Unless the Court considers it unjust to do so, if you fail to beat the Defendant s offer at trial, you will be ordered to pay the Defendant s legal costs from the date when the relevant period, ie the period for accepting the offer (usually 21 days), expired together with interest on those costs. Defendant Unless it considers it unjust, then in addition to your compensation the Court will also order a Defendant who fails to beat your offer to settle to also pay: interest on all or part of the compensation awarded at a rate of up to 10% above base rate from the date on which the 21 day deadline for accepting the offer ( the relevant period ) expired; your legal costs, as follows: those costs incurred before the expiry of the relevant period (21 day deadline for accepting your offer to settle) on the standard basis to be assessed if not agreed, although the Court may make a different order, having regard to all the circumstances; those costs incurred after the expiry of the relevant period on the "indemnity basis". This means that the Defendant will have to pay all of your costs for that period, except those that the Court decides were unreasonably incurred, with any doubt in relation to those costs being resolved in your favour; interest on the costs incurred after the expiry of the relevant period at a rate of up to 10% above base rate; and an additional amount, which shall not exceed 75,000, calculated by applying a prescribed percentage set out below: 9

10 Amount awarded by the Court Up to 500,000 Above 500,000 up to 1,000,000 Prescribed percentage 10% of the amount awarded 10% of the first 500,000 and 5% of any amount above that figure Costs assessed on the standard basis Where costs are assessed on the standard basis, the Court will only allow costs which are proportionate to the matters in issue and resolve any doubt which it may have as to whether or not costs were reasonably incurred, or reasonable and proportionate in amount, in favour of the paying party, ie the party who will have to pay those costs. This means that the party seeking to recover its costs has to prove the reasonableness of the costs claimed, and that those costs were proportionate. New rules mean that you cannot have justice at any price, even if it was reasonable to have taken a particular step in the litigation. We can advise you about this in more detail at the appropriate stage of your claim. Costs If the claim is allocated to either the fast track or the multi-track, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. However, costs are ultimately at the Court s discretion and the Court can make a different order. In deciding what order to make about costs, the Court must have regard to all the circumstances of the claim, including the conduct of all the parties (whether a party has been unreasonable ) and whether a party has succeeded on all or part of the claim. If you succeed with all or part of your claim, but the Court decides that some of the costs are payable by you and not by the Defendant(s), you will have to pay those costs out of any damages you recover. If you are unsuccessful in your claim, as stated above, you may have to pay the Defendant(s) some or all of his/her costs (subject to our comments below regarding Qualified One Way Costs Shifting ). You can take out insurance to guard against this and we will advise you in more detail should that become relevant. Timescale of your claim Whilst every endeavour will be made to try and conclude your claim as swiftly as possible, the claims process itself can take much longer than people think. Typically, a relatively straight forward 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. 10

11 Funding your claim There are a number of different ways you can fund a personal injury claim. Usually, most claims are funded by way of a no win, no fee or conditional fee agreement ( CFA for short). CFA 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. Under the rules governing CFA agreements, 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. This is also subject to the comments below on Qualified One Way Costs Shifting. There is a misconception about CFAs, however, that you as the Claimant have nothing to pay at all (other than the success fee element). Technically, you are still liable for our costs, even if you win the claim. The no win no fee agreement, however, provides for a right of recovery of those costs (with the exception of the success fee element) from your opponent, on the basis that the general rule on costs is that the losing party is liable to pay the winning party their costs. You also strictly speaking remain liable for any disbursements, ie cost of copy medical records, cost of medical report, etc but we would also expect to recover those disbursements from your opponent on the successful conclusion of your claim. If proceedings are issued and you lose your claim at trial, you may also be liable for your opponent s costs and disbursements. To protect you against that liability we would advise you to take out insurance. We can advise you in further detail about that, should that become necessary. Whether or not we would be prepared to act for you on a no win, no fee basis is always at the discretion of the head of department. Before we agree to enter into a no win, no fee agreement with you, we must check whether you have any legal expenses cover for example as part of household or car insurance policy. If you do, it may be that we can still act for you under the terms of the policy. It depends on the wording of the policy. Each policy is different. We would need to see the policy, which we would be happy to look at. Pay privately An alternative to funding your claim on a no win no fee basis is to pay privately for the work. Work will be carried out on a time spent basis, with reference to the appropriate hourly rate. We will provide you with an estimate as to your likely costs at the outset of your claim and your costs will be reviewed on a regular basis, as your claim progresses. 11

12 Damages Based Agreement Another alternative would be for us to consider entering into a Damages Based Agreement or DBA with you. Although we will still record the work carried out by us on a time spent basis, with reference to the appropriate hourly rate, if your claim is ultimately successful, then instead of recovering our costs from your opponent, you will pay us our costs, capped at no more than 25% of any damages (compensation) we recover for you. The key points of a Damages Based Agreement are: (i) (ii) (iii) (iv) that you do not pay our fees if you lose your case; if you win your case by recovering compensation, our fees are limited to a percentage of your compensation, which includes VAT and disbursements, including any barrister s fees which may be necessary; the percentage deduction from your compensation under a Damages Based Agreement may also be reduced by any costs which are recovered from your opponent; the maximum percentage we can charge in your case would be 25% of your compensation for your injury and your net financial losses to the time of settlement. Typically, a Damages Based Agreement is more advantageous, for both you and us, where the value of the claim is likely to exceed 250,000. This is usually in catastrophic injury claims. In most cases, a Damages Based Agreement is unlikely to be suitable, but this is still a funding option available to you. If you wish to have your case undertaken under a Damages Based Agreement, unfortunately you would need to seek representation elsewhere. It is important to keep in mind, whatever method of funding is appropriate, that the likely benefits of the proposed legal work should justify the likely cost of carrying out that work. Public Funding Public funding, ie Legal Aid is not normally available for personal injury cases, however, if you think you may qualify, then you need to make some enquiries of the Civil Legal Advice Agency, who can be contacted on Alternatively, please visit the gov.uk website for further details. 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. Sometimes we are able to agree with the expert (although it depends on the expert and cost of the report) that payment of their fee can be deferred until the conclusion of the claim. In some circumstances, we may be able to negotiate payment for the report from the Defendant s insurers. We may ask you, however, for the cost of the copy medical records but you should get that money back on the successful conclusion of your claim. 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. However, as with the cost of your copy medical records, you should get these fees back on the successful conclusion of your claim. 12

13 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. 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: steven.partridge@warekay.co.uk Jethro Powell Solicitor in our Litigation Department Tel: Fax: jethro.powell@warekay.co.uk 13

14 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 info@warekayfs.co.uk 14