Bringing a Claim
Basis for a claim
In order to pursue a claim a Claimant needs to establish that the injuries sustained arise as a consequence of a breach of duty by the Defendant. The breach may relate to a duty of care owed by the Defendant arising from the general Common Law or a duty imposed by statute. In essence it needs to be shown that the Defendant was “at fault” for the injury sustained.
We can advise you on the merits of any claim that you might intend to pursue and whether you have a sufficiently strong claim to make the exercise worthwhile. Our initial assessment is likely to involve consideration of:
- the likelihood of being able to establish that there has been a breach of duty
- the likelihood that any such breach of duty has caused damage
- the likely level of any compensation that might be awarded if the claim is successful
- the costs that might be incurred in pursuing the claim
- the likelihood of recovering the costs incurred in pursuing the claim
- whether you could enforce any judgment that you might obtain against your opponent.
At each stage as the case progresses we need to review whether the merits test is still satisfied.
Time Limits - limitation periods
If it is necessary to start court proceedings, to pursue a claim for compensation for personal injuries, the general rule is that proceedings must be started before the end of the limitation period.
The limitation period generally expires three years after the cause of action arises i.e. the date of the accident. Failure to start proceedings within the limitation period is likely to lead to the claim being statue barred and in those circumstances it would not be possible to pursue the claim whatever its merits.
Where the injury is sustained by a child the three year period does not start to run until his or her 18th birthday.
The start of the limitation period may also be delayed where a person does not have knowledge that they have sustained significant injury that is attributable to their opponent’s negligence. However, the rules on this aspect of the law are complex and care needs to be exercised in assessing when such knowledge is acquired. We can advise you further regarding the limitation period.
Children and others lacking capacity
A claim pursued by a Claimant under the age of 18 or who otherwise lacks capacity must be pursued on his or her behalf by a responsible adult. In any court proceedings the person pursuing the claim on a child’s behalf is described as a “Litigation Friend”. Generally a parent will act as litigation friend for a child claimant.
If the claim has not have been resolved by the time child reaches the age of 18, then he or she will be entitled to take over the conduct of the claim.
Conduct of claims involving fatal injury
Generally speaking any claim for compensation relating to an injured party who has died will be pursued by their personal representatives. The personal representatives will pursue any claim on behalf of the estate of the deceased and on behalf of any dependants of the deceased. Where no claim is pursued by the personal representatives a claim may be pursued by any dependants.
Initial Stages in a Claim – Personal Injury Protocol
At the outset of a claim we will give notice of the claim to the Defendant who will generally refer the matter to insurers. We will then correspond with the insurers with the aim of securing an admission of liability.
In most personal injury claims the Defendant will generally be expected to advise within three months as to whether liability is accepted.
If liability is admitted then the focus will switch to the collection of medical and other evidence to enable us to value the claim.
It is important that we are provided with any documents that are needed to support a claim. Such documents might include
- contracts of employment
- health and safety guidance provided to the injured person
- wage slips
- business accounts
- tax documents
- receipts for expenses incurred
Broadly speaking the parties involved in a personal injury claim are under an obligation to disclose to each other any relevant documents. The rules regarding disclosure can be complex and we will advise you regarding the process. The obligation to disclose documents also includes an obligation to disclose documents that might adversely affect a party’s case.
If court proceedings are issued then the parties involved will be required to provide the other with a list setting out details of any relevant documents.
As part of our work in preparing a case, we will prepare the list of documents to be served upon the other party. The list of documents will include a certificate that we will ask the Claimant to sign. This certificate confirms that the person signing understands the duty of disclosure and that to the best of their knowledge they have carried out that duty. It also confirms that the list is complete.
Keeping a diary to record progress and expenses
It is worthwhile keeping a diary to record key stages in recovery from an injury such as the points when the injured person:
- no longer needed assistance with bathing or dressing
- no longer needed to use crutches
- was able to manage normal domestic chores
- was able to drive
- was able to return to work
The diary may also be useful as a record of trips to the hospital for medical appointments/ physiotherapy etc and to record expenses such as rail and taxi fares, car mileage, parking costs etc. Please also keep any receipts for expenses incurred.
The diary may be a useful aide-memoire if later we need to prepare a statement from the injured person dealing with the progress and recovery from their injury. We can also go through the diary and any other records or receipts to assess what losses are properly recoverable from the Defendant and if appropriate seek interim payments to cover those expenses during the course of the claim.
Medical records and expert medical evidence
Before we seek to try and settle a claim it will be necessary to obtain medical evidence concerning the injuries sustained. This will usually involve obtaining the injured person’s medical records and obtaining a report from a suitably qualified expert (or experts).
It will be necessary to disclose the injured person’s medical records to the Defendant’s representatives and to the medical expert (or experts) instructed by us and by the Defendant.
We will generally obtain expert medical opinion regarding the injuries from an expert (or experts) in the appropriate medical discipline(s) who are not involved in the clinical care of the injured person. It is usually better to have evidence from experts who are entirely independent of the treatment process. Usually it will be necessary for the injured person be examined so that a report (or reports) can be prepared.
The report should address the questions of the nature of the injuries sustained, the extent to which the current symptoms were caused by the accident, the injured person’s current condition and the prognosis for the future.
In some cases it will be necessary for the injured person to undergo examination by a suitably qualified expert (or experts) instructed by the Defendant.
Other expert evidence
In complex cases it may be necessary to instruct experts from a wide range of disciplines as well as medical experts. These might include experts from disciplines such as:
- speech and language therapy
- occupational therapy
- assistive technology and IT
- finance and investment
Court proceedings and hearings
It may be necessary to issue court proceedings if:
- liability is denied by the Defendant
- it is not possible to reach agreement on the value of the claim
- the claim cannot be concluded before the end of the limitation period
- it is thought that the discipline of the timetable set by the Court will assist in progressing the claim to a conclusion.
Most cases are resolved without resort to formal court proceedings. Even where proceedings are issued only a few cases get as far as a final court hearing. Most cases that are concluded with a payment of damages are settled by negotiation rather than at a contested court hearing.
Settling a claim
Follow this link for further information on settling a personal injury claim.
Predicting the timescale of a personal injury claim is very difficult as there are a number of variables, many of which are outside our control. These include the speed of response from the defendant, whether liability is contested and whether the claim settles before trial.. There may be delays while health providers disclose the medical records and some experts have long waiting lists for providing reports.
The timescale is also likely to reflect the severity of the injury. Where the injuries are relatively minor the Claimant may have recovered or the medical prognosis for the future effects of the injury may be quickly apparent. Where the injuries are more serious it may be that a considerable period needs to elapse before the future effects of the injury are apparent. Equally in complex cases it may be that evidence needs to be obtained from a range of experts in order to assess the value of the claim.
Even a simple claim is likely to involve at least the following stages:
- giving notice of the claim to the Defendant
- corresponding with the Defendant/ Defendant’s insurers/ Defendant’s solicitors concerning the question of liability
- obtaining copy medical notes
- nominating an appropriate medical expert (or experts) to examine the Claimant and provide medical evidence
- instructing the expert (or experts) and considering their report
- liaising with the Claimant concerning the medical evidence
- securing evidence of the Claimant’s financial losses and preparing a Schedule of Loss
- submitting details of the claim to the Defendant/ Defendant’s insurers/ Defendant’s solicitors
- negotiating settlement of the claim for compensation
- negotiating settlement of the claim for costs.
Please contact us if you would like any further details of the assistance we can offer.