If you have been injured and you think someone is to blame, or you have developed an illness or disease because of your work, it is important that you get early legal advice from a specialist personal injury lawyer.
When you speak with your lawyer, they will want to know about your injury, its impact on you, when and how it happened. They will want as much information as possible, so that they can then advise you fully on whether they consider that you may have a claim and if so, whether they are able to act for you. If they are, then they will explain what is involved in making an injury claim and will advise on your funding options to pay the legal costs. If you are happy to instruct the lawyer, they will start your claim.
Submit the claim
If your claim is likely to be worth no more than £25,000, then it is usually handled in a dedicated online portal. The portal is designed for more simple injury claims where blame for your injury is accepted and allows your lawyer to communicate with the other party. Many cases are settled by negotiation in the portal, but if agreement cannot be reached, then court proceedings may be necessary.
If your injury claim is likely to be worth over £25,000 however, then an online portal is not appropriate. In these cases, your lawyer will notify the person or organisation you hold to blame, with a formal letter of claim. If they know the insurance details of the person you hold to blame, then the letter of claim will be sent directly to the insurer. The letter of claim provides certain information, and its main purpose is to allow an insurer to investigate your claim, and to decide whether to accept liability or not. The expectation is that an insurer should acknowledge the letter of claim in 21 days and to confirm their liability decision within three months.
Liability decision
If an insured agrees to accept full liability for your claim, then your lawyer can focus on gathering the evidence needed to prove the extent of your injuries, their likely prognosis, and any financial losses that you have.
An insurer, however, may dispute liability entirely or may accept part blame, but say that you were also partly responsible for your injury. In these cases, the insurer should at the same time provide any documents that it relies on in support of its position. This is to allow you and your lawyer, to assess any new evidence and see whether you agree that you should accept some responsibility. Your lawyer will advise you fully on your options at this stage. It is possible to agree a split responsibility for the injury or for this to remain in dispute and ultimately, must be decided by a judge at trial.
Rehabilitation
If you are seriously injured, then it is important that you receive early rehabilitation, if possible. The court recognises the importance of rehabilitation and expects all parties to a claim to follow the Rehabilitation Code 2015. There is also a voluntary Serious Injury Guide which builds on the Rehabilitation Code, but is better suited to more serious injuries. Higgs LLP is a signatory to the Serious Injury Guide.
The Code and the Guide get the parties to focus on your rehabilitation needs, outside of the claim process. They are encouraged to try and agree on the appointment of a case manager. A case manager is medically qualified, usually a nurse, occupational therapist or physiotherapist; who is experienced in the needs of seriously injured people. Many of them will have extra experience of helping people with a brain injury, or a spinal cord injury. The case managers role is to look after your holistic rehabilitation needs outside of the claim process. Their first job is to see you and review your medical records, so that they can prepare an Immediate Needs Assessment report. This often details gaps in your rehabilitation, which are not being met by the NHS or Local Authority services. The case manager will then make recommendations to support you, which the insurer will be asked to fund. Very often the case manager can remain involved, liaising with your clinicians, to make ongoing recommendations as your rehabilitation needs change.
Often the insurer is cooperative in agreeing the appointment of a case manager and in funding their recommendations, as they recognise the benefit of early rehabilitation in allowing you to achieve the best recovery from your injury as soon as possible. In some cases, insurers will cooperate even when liability is still unresolved. However, this is not always so, in which case your lawyer may only be able to arrange limited rehabilitation support, if at all.
Interim payments
Injury claims can take time to resolve, for several reasons, but even in more straightforward cases you may have need for early payments in your claim. This is especially so if your injuries mean that you cannot work for a long time or even, not return to work at all. In these situations, your lawyer should request the insurer to make an interim payment. These can be requested even while liability is being investigated by an insurer. If the insurer refuses however, the only way to obtain an interim payment is to start court proceedings and apply to the court for an order. Your lawyer would advise on you this option if the insurer is not willing to make an interim payment.
Proving your injuries and losses
As the claimant, you have the burden of proving the extent of your injuries, their impact on your life and also any financial losses you have due to the injuries. This includes any future losses which are expected, if you are left with long term problems.
The way you provide your injuries, is by expert medical evidence. Your lawyer will guide which experts should be instructed and arrange for them to see you to carry out an examination; they will also have access to your medical records. The medical experts, although instructed by you, are in fact independent and have an overriding duty to the court to provide their opinion what injuries you have suffered as a result of your accident and their impact on you. They may also comment on any recommended treatment, or further expert opinions that may be needed, if some of your injuries are outside of their area of expertise. The expert should also give a prognosis of your injury, if you have not yet recovered.
Financial expenses that you have incurred are usually proved by the relevant invoices or receipts. Proving losses such as lost income, will depend on whether you are self-employed or employed, but will again need to be evidenced by either payslips or trading accounts and tax returns. In some instances, if the loss is complex or say you have a pension loss, your lawyer may instruct a forensic accountant to help assess your financial loss.
A key part of your evidence will be your witness statement, which usually covers what your life was like before your injury, how you were injured, the extent of your injuries and their impact upon you, as well as explaining your various financial losses. If you have needed unpaid help and assistance, then your statement will also explain this. It is possible that you will want to rely on the witness evidence of people who saw your accident, or the witness evidence of other people who can support the impact of the injuries and what help you have needed, which will usually be from family or friends.
Negotiating
Where possible, your lawyer will want to try and agree an amicable settlement with the insurer. To get to this stage, your lawyer will have gathered all the appropriate expert and other evidence to support the maximal value of your claim. They will also prepare an important document called a schedule of loss and damage, which sets out in one place the details of all the losses you wish to claim. This will set out the best position that you may expect to achieve if your case had to go to trial. They will usually advise you to make an opening settlement offer, which can be sent to the insurer with all your supporting evidence.
There may be an exchange of offers or, sometimes, your lawyer may negotiate on the phone with the insurer to agree a settlement. On higher value claims, it is also common for you to attend a roundtable or joint settlement meeting. You would attend the meeting with your lawyer and often a barrister who has been advising on your case, and the insurer’s legal team would also be present.
However, not every claim can be settled by offers of negotiating. Sometimes, you just need to start court proceedings either because liability or the value of your claim cannot be agreed. In which case, your lawyer will prepare the necessary court documents for you to sign to begin the court process, which is called litigation.
Litigation
Your lawyer will advise you on all the steps involved in starting the court process and carry out key steps on your behalf. In essence, the various steps in the litigation process are preparing a case so that, if it goes to trial, then the judge understands what is in dispute and is provided with all the appropriate evidence so that they can make a judgment.
Just because a claim is litigated does not mean that the parties may not come to some sort of agreement later. The court will actively encourage the parties to engage in ongoing discussions and can pause the proceedings, to allow settlement discussions. However, if a claim must be tried, then your lawyer will prepare all the documents which have to be provided to the court in advance of a trial. You would have to attend the trial to give evidence, based on your witness statement, and be cross-examined by the insurer’s barrister. Your barrister would conduct the trial on your behalf, making your case and cross-examining the other side’s witnesses.
Settlement
A judgment by a judge who finds in your favour is usually made on a full and final basis. This means that you are paid a single lump sum in compensation, and you have no right to claim any more compensation in future. There are however two exceptions to this usual position which may be appropriate in your injury claim.
The first is called periodical payment orders, or PPOs for short. These are often used in higher value cases where someone has an extensive future loss claim, such as the cost of ongoing care which may even be expected to increase in the future. Whilst this could be calculated as a lump sum, you would then have the risk of trying to invest that sum of money to ensure that it did not run out. PPOs help prevent against this risk because instead you receive an annual amount which increases yearly in line with an appropriate inflation index. This gives you greater certainty that the money will be enough to meet your needs for as long as you need it.
The other exception is called provisional damages and applies when you have sustained an injury which leaves you at an increased risk of developing another condition. An example is suffering a brain injury which leaves you at a heightened risk of developing epilepsy in the future. The risk may be relatively small and if you chose to settle your claim on a lump sum basis, the value of the increased risk may be relatively modest compared to your actual loss if you did go on to develop epilepsy. This is because epilepsy means that you cannot drive and also may be unable to carry on working, if you usually work at height or with dangerous machinery. A provisional award, if made by a judge, would assess your claim on the assumption that you will not develop epilepsy but, it would preserve your right to come back to court to assess the rest of your claim if you did develop epilepsy in the time indicated by the medical experts.
Wider support
After your claim is finished, you may need support with managing the settlement monies. For example, if you have received a significant award, you would be benefit from financial advice on how best to manage the award and your lawyer should be able to refer you to an appropriate independent financial adviser. Very often in serious injury cases, you should protect your entitlement to means tested benefits and will need to put your settlement monies in a trust to do so, in fact such a trust ideally is created when you receive an interim payment. Your lawyer should be able to arrange this for you.
In the most serious injury cases a client may lack what is called mental capacity, not only to conduct their own claim, but also to manage their own financial affairs. If the client had appointed an attorney before they lost capacity, then the attorney may be able to conduct the claim and their financial affairs, but if not, then your lawyer will need to apply to the Court of Protection to appoint a deputy. Whilst a deputy could be a family member, the court often prefers to appoint a professional as a deputy and again your lawyer should be able to assist with this appointment. The deputy’s role will persist for the rest of the client’s life if they never regain capacity.
It is common in catastrophic injury cases that you will need wider legal services, for example with selling and buying a suitable property if your injuries mean that you need single level accommodation with wheelchair access. It is also a sad fact, that people after a severe head or other injury are more likely to break up from their partners, so needing legal support to deal with the break-up particularly if they have young children. It is therefore important that your lawyer is able to provide this wider legal support, if it is needed.
