Hutchesons Solicitors 17 Strathmore House East Kilbride Glasgow Lanarkshire G74 1LF Tel: 01355 224545 Fax: 01355 276565 E-mail: mail@hutchesonlaw.co.uk Personal Injury/Accident Claims Guidance 1
This is a general guide not a detailed statement of the law. Please contact us if there is anything which concerns you, or which you do not understand. Can I bring a claim? Before you can make a claim, you usually must show that your injury or industrial disease happened because of someone else s negligence. Negligence is a legal term which is similar to carelessness. However, to prove negligence you must prove more than just carelessness. If an accident happens only because of your own carelessness, you cannot make a claim. If, as often happens, an accident is caused partly through your own fault and partly through someone else s, you can make a claim. Your compensation will be reduced by the amount you were to blame. If, for example, you contributed to the accident by 30%, your compensation will be reduced by 30%. How do I prove negligence? The law of negligence lays down standards which everyone must meet. If you can show that someone, whether a driver or an employer or a local council, has not met this standard, and you are injured as a result, you will be able to prove negligence, and claim compensation. In a road traffic accident, the standard of driving of the drivers will be looked at closely. Every driver must drive with reasonable care, at a reasonable speed, and keep a proper lookout for other road users. If a driver has broken the Highway Code, that will help you prove negligence. At work, your employer and others must take care to provide you with a safe place of work, safe equipment, a safe system of working and adequate training and instruction. If you are injured because your employer has not done so, you will be able to prove negligence and claim compensation. It is also possible to bring a claim against others who, through their negligence, have caused you injury. A local council has a responsibility for maintaining roads and pavements, and may be negligent for a defect such as a pothole or broken paving slab which causes an accident. However, you must prove either that the defect was reported and they did not carry out repairs, or that the defect existed long enough to have been detected by a reasonable system of inspection. Are there any Acts of Parliament which might help me to bring a claim? It is not always necessary to prove negligence. Some Acts of Parliament lay down statutory rules. If someone has broken a statutory rule you may be able to claim compensation. In addition, workers may be covered by Health & Safety Regulations which originated under European Law. There are also Regulations which cover areas such as building sites, docks, and shipyards. These may be cases where it is hard to prove negligence, but easier to prove a breach of these statutory rules or Regulations, which then allows you to claim compensation. What can I claim for? Pain and Suffering You can claim for your injuries, including psychological injury. Your compensation will vary according to the seriousness of your injuries. To allow us to assess the value of your claim, we obtain a medical report, usually from a specialist but in the case of minor injuries, from your GP. 2
When assessing the level of compensation we look at the severity of the injury, the extent to which the injury has resulted in long-term or permanent disability and the extent to which the injury has interfered with your lifestyle. Compensation for pain and suffering is calculated by looking at previously decided court cases. We have access to a great many decided court cases and we refer to the case which most closely resembles your case. If we are looking at an old award we use inflation tables, because the value of the award will have fallen because of inflation. Often an accident will have aggravated a condition which was already present. For example, someone may have had a history of back pain which the accident has made worse. You can claim compensation for this. We usually recover your medical records, and if the case goes to court the other side can recover them also. For that reason it is very important that if you have a previous medical condition, you tell us at the outset. Loss of Earnings If you have to take time off work because of an accident, you can reclaim your loss of earnings. We look at your net earnings that is after income tax and national insurance are taken off. Your claim is based upon the amount which you would have taken home. You will not pay tax on your compensation. Payments received from your employer while you are off work will be taken into account, unless your contract of employment states that you must repay these payments to your employer if you recover compensation. If you would have worked overtime or if you would have earned bonuses you can claim for this as well. If you received a pay increase during your absence we can take that into account. Normally your claim is based upon your average take home pay during the three month period before the accident. It is helpful to retain pay slips for both the period before the accident and for the period of absence so that we can check these against any information provided by your employer. DSS Benefits The insurers of the person who compensates you must repay some DSS Benefits to the DSS out of any award of compensation. Not all DSS Benefits have to be repaid. We can advise you how much has to be repaid. DSS Benefits are only repaid from certain parts of your compensation. They are never repaid from your award for Pain and Suffering. Future Loss of Earnings and Loss of Pension You must take reasonable steps to minimise your losses. If you cannot return to your old job you must take all reasonable steps to find a job which you are capable of doing. If you have to give up work because of the accident this may affect your future pension rights. We can take this into account and include any loss of pension in your claim. 3
What else can I claim for? You can claim for damage to clothes and other possessions, such as glasses, dentures or crash helmets. Please retain the damaged items as the insurers may wish to inspect them. Please retain receipts for replaced items. You can claim for expenses which you have incurred following an accident, such as taxi fares or prescription charges, provided what you are claiming is reasonable. If you have to hire a car because your own car is damaged it may be possible to reclaim the hire charges, but please discuss this with us before doing so. Please keep receipts for all hire charges. If you are seriously injured, you can claim the cost of items such as wheelchairs which you may need for your future care, as well as future nursing costs. If you have been looked after by a relative following an accident, you may be able to claim compensation for these services. Please keep a diary or other written record of these services as this will make it much easier to calculate the level of compensation. We need to know how long was spent helping you, by whom, and what was done. If you are unable to do any jobs around the house, or for your family, you may be able to claim compensation. Examples would be gardening, car maintenance, and DIY. If you had to pay tradesmen to do these jobs, please keep receipts. If you are no longer able to care for a loved one, you may also be able to claim compensation for this. What do I do to make a claim? We shall meet with you to discuss how the accident happened. We shall then write to whoever was responsible for the accident. We shall tell them why they are responsible, and we shall make a claim on your behalf. In most cases we shall deal with insurers. Insurance is compulsory in road traffic cases and employment cases. If there is no insurance it may be hard to recover compensation even if you have a strong claim, unless that person has assets which can be used to pay compensation. We shall usually try to settle of your claim. This may be done by letters, telephone calls, or meetings with the insurers - or a combination of all three. There is no set timescale for this. It all depends upon each case, and which insurer we are dealing with. Some insurers are quicker than others at deciding whether or not to accept a claim. If the insurer is prepared to pay, we shall obtain a medical report in order to value your claim. We shall also calculate any loss of past or future earnings as well as any other claim that might apply. If your injuries are serious, we may be have to wait for your medical condition to stabilise, before obtaining a medical report. However it may be possible to persuade the insurer to make you an interim payment. If an insurer delays settling the claim, or if an insurer is not prepared to make any payment at all, or if an inadequate offer has been made, we shall advise you about your prospects of raising a successful court action to recover adequate compensation. Time Limits for Claims In general, claims for compensation for personal injury must either be settled or commenced in court within three years after the date of the accident. If not, the claim will timebar and you will no longer be able claim. Where we are dealing with an industrial disease it is more difficult to say when the three year period will start to run. In general once you know that you are suffering from a condition that is due to your employment, the three year period will start. You should always consult a solicitor as soon as possible after an accident, or as soon as you realise that a disease may have been caused by your work. 4
Even if you think that more than three years have elapsed, it is still worth speaking to us to obtain advice on whether or not your claim has timebarred. That is because in some cases a claim can be made more than three years after the accident. Please note that if you have been injured on an aeroplane or on a boat, a shorter timebar period of two years may apply. Court Actions If we cannot settle your claim, we shall advise you if we think you have a good enough case to raise a successful court action. We shall also advise about funding. A no win-no fee agreement may be available. We can discuss taking out an insurance policy to protect you against other side s legal expenses if your case is unsuccessful. We can also discuss a scheme for paying outlays such as medical reports and court fees. Often it takes between one and two years from the start of a court action until the final Hearing on evidence. In difficult cases it can take longer. The other side at any stage can make a settlement offer, and this frequently happens. Only a small percentage of court actions go to the final Hearing. Many settlements take place shortly before the final Hearing, or even on the morning of the Hearing. Your case may be raised at the local Sheriff Court or, in more valuable cases, at the Court of Session in Edinburgh. If it is raised at the Court of Session, you will normally be invited to attend two meetings with counsel (an advocate), the first shortly after the action is raised, and the second shortly before the final Hearing. Industrial Diseases If your claim results from an industrial disease, the claim and any subsequent court action are dealt with in much the same way as in the case of an accident. Usually you must show that you developed the disease because of negligence on the part of your employer or someone else. You also have to produce medical evidence to prove that your condition is related to your employment. We may have to involve previous employers going back many years if it appears that they have contributed to your condition. A big difficulty in an industrial disease case is proving that your employer should have known, at the time you were doing a particular job, that you were likely to contract an industrial disease. In relation to some industrial diseases, insurers have agreed to pay particular amounts of compensation. In such cases, this makes it easier to progress your claim. Other Types of Compensation In addition to making a claim against someone who has caused your accident there are other types of compensation which may be available. Private Insurance Some employers have private insurance policies which allow you to claim from them if you have an accident at work, even if the accident was not someone else s fault. This type of policy is more common with larger employers. You should always check with your employer to see if they have this type of insurance cover. You should however always check with us before signing any document which might prevent you from bringing a negligence claim in the future. DSS Benefits The DSS will pay industrial benefits if you have an accident at work, or if you are suffering from an industrial disease. You have to show that you are suffering a minimum level of disability. 5
Criminal Injuries Compensation Authority If you have been injured as a result of a crime you can make a claim to the Criminal Injuries Compensation Authority. The rules are complex and it is important that you speak to us as soon as possible. The time limit for making such a claim is two years, although it may be possible for people who suffered injury as children to bring a claim outwith the two year period. In general, it is important that the crime should have been reported promptly to the police or to some other authority. If you have a criminal record, this may prevent or reduce compensation. What Can I do to Assist my Claim? After your accident please keep as many written notes as you can. Remember that it may take a long time for your case to come to a final Hearing. The court often favours written records over personal memory of events. Please note the names and addresses of any witnesses, or anyone who can supply helpful information. If you tripped on a pavement, please photograph and measure any defect as soon as possible, particularly if you reported the accident to the local council. They may repair the defect, which will remove the evidence. If you have been injured because of a defect in equipment you should keep a note of the equipment such as name of manufacturer, serial number etc. If you think that your employer may remove or throw out the equipment, please let us know immediately. Do not discuss your claim directly with your employer, their insurers, or anyone else without checking with us first. Any information that the insurers require is normally channelled through us. The insurers are entitled to speak to any witnesses. This is common practice. They are not entitled to speak directly to you and any approach to you should be reported to us. Please keep wage slips, receipts and invoices which relate to your claim. The more documents you have, the easier it will be to recover compensation. Please keep us informed of any big change in your medical or employment situation. This is important because it may affect the value of your claim, and we need to know about it before we settle your claim. 6