What must I prove to win compensation?
In order to win your case you will need to show that:
- there is a person or organisation against whom a claim can potentially be made
- he or she owes you a duty to avoid injury to you and could have taken reasonable steps to avoid that injury
- the injury suffered was a direct and foreseeable consequence of the failure to take reasonable steps to avoid injuring you.
It is important to recognise that even in what appears to be the simplest of accidents it is not always possible to establish that someone was at fault.
The solicitor's first job is to look at who is to blame and why.
This may involve collecting evidence such as statements from witnesses, documents and official reports (for example, from the police if you were injured in a road traffic accident).
The solicitor has written to me asking if I have 'before the event' insurance. Why? I thought PCS would fund my claim.
PCS will cover the funding of your claim provided that the solicitor advises it has a reasonable prospect for success, but as a result of a recent legal ruling, all members, their partners and children, who have suffered personal injury, will be asked whether they have an insurance policy intended to cover them should they have an accident.
This legal ruling follows the case of a Mr Sarwar.
He was a passenger in a car which was involved in an accident who was unable to recover all his legal costs because a judge ruled that he had not taken advantage of an insurance policy taken out before the accident by the driver.
This court ruling now applies to all personal injury victims and it means that if you have what is known as “before the event” (BTE) insurance as part of a package or as an addition to household or motor insurance, the union’s solicitors must ask the insurer to pay the legal costs in pursuing your claim.
Please note: This will not affect the provision of the union’s free legal services to you or your partner or child in respect of a personal injury claim.
What will happen is that the solicitor allocated your claim will send you a letter which asks if you have any kind of “before the event” insurance policy.
If you do, the solicitor will ask your insurer if it is prepared to support your claim on terms acceptable to the union (i.e. using the union’s solicitors, not the insurer’s solicitors) and whether the case will be covered by that insurance.
The vast majority of insurers will refuse because they will want to control the case. This means that there will be no further contact between the union’s solicitor and your insurer and the case will be progressed in the usual way with PCS providing funding.
However, under the court ruling, our solicitors are obliged to make enquiries of you about “before the event” insurance before progressing your claim further.
The solicitor has advised me that a letter of claim is to be submitted. What does this mean?
The letter of claim to the defendant (the person or organisation who has caused you injury) sets out the basis of your claim and seeks the defendant’s response on whether liability is admitted for your injury.
The defendant has a period of three months within which to respond. You are therefore unlikely to hear from the solicitors for several weeks pending the Defendant’s response on liability.
If liability is admitted, the solicitor will arrange for an independent medical report to be obtained to support your claim. If liability is denied, the solicitor will be able to tell you if your case is strong enough to take further, despite the denial of liability.
It is possible that your accident was not solely the fault of the defendant in which case the defendant may allege contributory negligence on your part.
The solicitor will advise you, and negotiate with the Defendant, on the percentage level of contributory negligence. For example a split of 80:20 would mean that you are 20% responsible for the accident.
If your claim is settled on this basis you will receive 80% of the total value of your claim.
If my claim goes forward what happens next?
The solicitor will probably ask you to have a medical examination. This is to show the extent of your injuries.
The consultant instructed by the solicitors will be someone who has not treated you before. This is because to satisfy the courts it is necessary that the medical evidence obtained on your behalf is seen to be independent.
It is also important that the consultant who prepares the report is used to preparing reports for, and giving evidence to, the court.
What is causation?
It is the link which establishes that the injury you have suffered is definitely attributable to the accident, or in the case of an industrial disease, the workplace.
What if the medical evidence does not support my claim?
Unfortunately, if the medical report is unable to link your injuries to the accident, it will not be possible to take your claim further.
This does not mean that the Consultant does not believe your symptoms are genuine, but may simply be that in his/her expert opinion those symptoms are not attributable to the accident.
Your claim may also fail if the Consultant is unable to find that your symptoms are as you describe them so it can help your case if you keep a detailed record of your symptoms and how they affect you on a day to day basis.
In some circumstances the medical evidence may link some but not all of the symptoms that you might be suffering to the accident. The solicitor will advise you at this stage whether it is possible to progress a claim based on those limited symptoms.
Evidence, including witnesses
Remember - the most important witness is you! If your claim is going forward, in addition to the medical evidence, the solicitor will require information from you and may wish to see you to take a statement. Be sure that you have recorded all the details of your accident or injury and provide the solicitor with as much information as possible.
If you have witnesses to support your claim make sure they are willing to provide a statement to the solicitor and then provide the solicitor with their contact details. Warn them that the solicitor will be getting in touch with them.
People do not always reply promptly and there are often delays in the releasing of reports or in responses from potential witnesses. You will therefore appreciate that investigations can take several months to complete, particularly if the solicitor needs to obtain official reports.
Making progress – part 36 offers and payments into court
Part 36 offer
If the investigations go well, and the medical evidence is supportive, the solicitor will try to negotiate a settlement of your claim. The solicitor will discuss the potential value (known as quantum) of your claim with you and may suggest to you that a Part 36 offer is made to the Defendant in an attempt to settle it on that basis. Part 36 offers can be made by either side. If the Defendant makes a Part 36 offer, it is possible to submit a counter offer. The advantage of a Part 36 offer is that it provides both sides with an incentive to settle provided that the Part 36 offer is well-judged and within the range that you might expect to receive if your case went to a full Court hearing and was decided by the judge.
Payment into court
The Defendant may make a payment into Court to settle your claim. The advantage of a payment in to the Defendant is that if the claim subsequently goes to trial and the judge does not award compensation greater than the payment in, the Claimant is liable for the Defendant’s costs from the date of the payment in.
If you receive a Part 36 offer or a payment into Court, the solicitor will recommend to you whether the compensation offered is acceptable in the context of the value of your claim. Occasionally the solicitor may recommend that a Barrister’s advice is sought on quantum.
What are court proceedings and when do these become necessary?
There are two circumstances in which Court proceedings are started. One is if limitation is about to expire on your claim, i.e. it is three years since you first suffered injury, and your claim needs to be protected from becoming statute-barred. The other is that the solicitor may consider that to achieve a fair settlement for you Court proceedings need to be started. If the solicitor needs to take this step it is possible that a Barrister will be instructed to prepare Particulars of Claim for issuing on the Defendant.
Under Court rules, the proceedings will need to be served on the Defendant within four months together with your medical evidence. The Defendant will then serve their Defence of your claim and if it is not possible to settle beforehand, the case will be set down for trial at a later date. The Court will provide both sides with Directions for the case which can involve presenting a variety of documents and evidence (including witness statements) to the Court. The solicitor will explain all these procedures to you if your claim reaches this stage. It can be a very lengthy process.
Compensation – how is it calculated?
If your claim is successful, you will be compensated for pain and suffering (known as general damages) based on the medical evidence, as well as for loss of earnings where applicable and certain expenses you may have incurred directly due to the injury (known as special damages). This is why it is important to retain receipts for any expenses you may incur which, but for the accident, you would not have had. These will assist the solicitor in trying to reclaim these expenses as part of your settlement
Our solicitors operate complaints procedures and if you are dissatisfied with the service that you receive you should contact the solicitor dealing with your claim in the first instance.
If you are not satisfied that your complaint is resolved you should contact the managing partner of the office dealing with your claim. If you then remain dissatisfied please contact the PCS legal and personal injury unit on 020 7801 2651.
Every personal injury claim is unique to its own particular circumstances. Proving a case can be a complex and lengthy task. We hope that these notes help you to understand the various stages your claim may go through, but if you have any questions arising from the conduct of your claim, do not hesitate to raise these with the solicitor in the first instance, or contact the PCS legal and personal injury unit on 020 7801 2651.
Updated 28 Jan 2017