There is a ‘fog’ of misconception and misinformation that hangs over the law of personal injury and clinical negligence claims. This has been created by the way claims are reported in the media, with talk of a ‘Compensation Culture’ and how stories become skewed as they are recounted by word of mouth. To help you see through this fog, I give you the facts behind some of the misconceptions that I hear whilst dealing with these cases on a day to day basis.
1. “I need to wait until I have recovered from my injuries before I make a claim”
It is common for people to think that they cannot bring their claim until they have recovered, so that they know how long the injury has affected them and the outcome of any ongoing treatment. This is not the case. A claim can be brought at any time within 3 years of the date of the accident or medical treatment giving rise to the injury, but I recommend that it is brought as soon as possible.
The first stage of a claim is to investigate how the injury happened and who is to blame or is liable. This is easier early on when records are still available and the circumstances are fresh in the minds of witnesses and those involved. The longer it is left, the more difficult it can be to prove who is liable and for the claim to succeed.
Either a full recovery or a stable medical opinion needs to be reached before a claim can be valued and settled, but this stage is dealt with after liability. A Claimant will be assessed by a medical expert and, if a final opinion cannot be given because treatment is ongoing, then the claim can be ‘paused’ whilst the treatment is finished, and the claim can be valued. If liability has been established, an interim payment may be made by the Defendant.
2. “I’m not interested in the money, I just want to change the dangerous practice”
Unfortunately, it is not possible to force a company or organisation to change dangerous practices that have caused an accident by bringing a claim. The process is designed to compensate the Claimant for injury and loss and not to punish the Defendant. Many companies will change their practices after an injury has been caused, but that is a matter for them. NHS Trusts are generally very good at learning from mistakes and putting procedures in place to prevent recurrence when something has gone wrong.
3. “Personal Injury Claimants are greedy and only interested in the money”
The purpose of a claim is to put the injured party back in the position they would have been in had the injury not occurred, and not to provide a ‘windfall’. The overwhelming majority of Claimant’s I have dealt with have been genuine, hardworking people who have suffered injury through no fault of their own. Many of them have been left unable to work due to their injuries and provide for their families. When people are left in this situation, they only have two choices: try to live on their savings or benefits, or recover their lost income and other losses by making a claim.
4. “Because I was injured at work, I will get paid whilst I’m off”
If you are unable to work due to an injury or medical condition, any income you are entitled to will depend on your employers’ sick pay provisions. Unless it is specifically provided for, you are generally not entitled to any additional income if you have been injured in an accident at work than if you are off because of any other illness or injury. The only way to recover your lost income is by bringing a personal injury claim and establishing that another party was responsible, or legally liable, for your absence and loss.
5. “There’s no point taking a large company or NHS Trust to Court, they can afford better lawyers than me so they will win”
The legal system is a great leveller, and all cases are decided on the evidence, not the financial means of the parties, the size of the law firm representing them, or the charging rate of the lawyers involved. The value that a lawyer adds to a case is through their experience and training, and is not governed by how much the client can afford to pay. Any claim brought through Slater Heelis will be handled on a ‘no win, no fee’ basis by a member of the specialist Personal Injury team who has the knowledge and experience to ensure that our clients receive the best settlement possible. We also have access to the best barristers and medical experts and are more than a match for any organisation we come up against.
6. “I’ve got the same injury as X so I’ll get the same compensation”
People will often hear of compensation awards from friends or in the media in cases where the injuries sound the same as their own. This does not mean that they will receive the same amount of compensation. To explain why this is, we have to look at how claims are valued.
Compensation in a personal injury claim is split into 2 categories: general damages and special damages.
General damages
General damages are compensation for pain, suffering, and loss of amenity, i.e,. not being able to do what you usually would. This is valued based on the severity of the injury using judicial guidelines and previous cases, meaning that amounts awarded for general damages will be broadly similar for similar injuries. However, because the impact of the injury on the Claimant is taken into account, awards can vary.
E.g. Two Claimants both suffer a cut to their face, leaving a three-inch scar. Claimant A is a 60-year-old male former boxer with many other visible scars. The scar does not bother him in the slightest, and it has no impact on his life. Claimant B is an 18-year-old female who no longer sees her friends because she is too self-conscious of the appearance of the scar to socialise. In this example, Claimant B will recover more general damages than Claimant A for the same injury.
Special damages
Special damages are financial losses incurred as a result of the accident, such as loss of earnings, travel expenses, and medical expenses, or losses predicted to be incurred in the future. This is where Claimants with similar injuries can receive very different amounts of compensation depending on their specific circumstances.
E.g. Two Claimants suffer severe fractures to one of their legs, which leave them needing to use crutches for 4 months and with weakness and reduced capacity for a further 2 months. They both recover £10,000 in general damages. Claimant A is a manual worker who, as a result of their injury, was off work for 6 months on reduced pay, losing £12,000 in income. Claimant B is an office worker who returned to work after a few weeks and received full pay during their absence. They had no other financial losses or expenses. When the two claims were settled, Claimant A received £22,000 and Claimant B received £10,000 for the same injury.
7. “I don’t want to have to face the Defendant in Court”
The vast majority of claims are settled without the involvement of the Courts. Court proceedings are only required if an agreement cannot be reached as to the value of the claim or who is responsible. Even when Court proceedings are issued, most claims are concluded without a final hearing. Going to Court is risky as a Judge can take a very different view of the evidence to what is expected, and both Claimants and Defendants try to avoid it if possible.
8. “The insurance company has offered me a settlement directly and I don’t want to wait for the lawyers to get involved”
Insurance companies, especially in road traffic claims, will often make direct offers of compensation to Claimants before a formal claim is submitted. Claimants can be tempted to accept these offers as they will receive the money quicker than if a claim is made. There is only one reason insurance companies do this – to limit the amount of compensation they have to pay out. When a formal claim is made, you will have an experienced lawyer gathering all the evidence necessary to ensure that you recover the best settlement possible. We will make sure you are not sold short by an insurance company looking to save money.
9. “Instructing a lawyer will be too expensive and I will have to pay them out of my damages”
If we believe your claim has reasonable prospects of success, we will deal with it on a ‘no win, no fee’ basis under a Conditional Fee Agreement (CFA). Under a CFA, you are not liable for the solicitor’s fees if the claim is unsuccessful, as long as you have acted reasonably. If the claim is successful, an element of the fees incurred can be claimed from the Defendant in addition to your compensation, and any contribution that you have to make to those fees is limited to 25% of the compensation awarded. If you recover any compensation for future losses, no deduction is made from this element, and you will receive 100% of the loss.
How can we help?
Alex Barley is a Partner in our Personal Injury team, specialising in serious injury such as spinal and head injuries and clinical negligence claims, including cases involving cancer misdiagnosis, birth defects, and surgical errors.
If you have been injured in an accident or due to negligence medical or dental treatment, please contact Alex or another member of the team on 0330 111 3131 or via our contact form.