WHAT IS A PERSONAL INJURY?

Personal injury covers physical and psychological injuries resulting from accidents at work, in public places or abroad, criminal injuries, road traffic accidents and work-related illness. Psychological injury includes symptoms such as depression and PTSD.

Substantial numbers of people fail to claim compensation simply because they are not aware of their legal rights.

Any compensation claim depends on being able to prove that your injury is fully or in part caused by the fault of another, either through their actions or inactions. We all have a duty to go about our daily lives without causing harm to others, for example, whilst driving a car. If our actions or inactions fall below a minimally competent standard, that is deemed to be negligent and we will be liable if that causes harm to others.

If an individual is unable to pursue a claim personally as their injury has meant they have lost the necessary mental capacity to reach decisions, another person, such as a family member or close friend can bring a claim on their behalf in a representative capacity.

Rehabilitation

It is very important in a serious injury claim to access the right rehabilitation, care and support to ensure the injured person is able to maximise their recovery and regain as much quality of life as is possible.

Defendants should be notified of claims early and invited to engage in providing rehabilitation under the Rehabilitation Code. This may involve a stay in a specialist in patient unit or ensuring someone is appropriately set up at home with all the interventions, therapies and support they need to make the best possible recovery.

What is Compensation?

A serious accident can change someone’s life in an instant. The true cost to you and your family cannot be underestimated.

Early notification of a claim for compensation is important as it provides the opportunity to obtain an interim payment to assist with immediate financial concerns and private rehabilitation and support.

Whilst this is not an exhaustive list and each individual’s needs are unique to them, compensation can be claimed for:

• Damages for the injury itself to reflect pain and suffering
• Loss of income
• Funds to pay for new and adapted housing
• Cost of therapists and carers
• Specialist equipment and IT
• Specially adapted transport
• The cost of a professional Deputy if mental capacity is impacted by the injury

Related matters

Compensation is recoverable if the injuries were caused by another person’s negligent act or omissions. In general the party at fault does not make the compensation payment directly from their own personal funds, as there is generally an existing insurance in place that meets claims where fault can be established.

Solicitors who are specialists in serious injury work will establish at an early stage that the right insurance is in place and that those insurers will deal with the claim. A car driver, for instance, is required to have insurance cover which will compensate a third party for any damage or injury. Employers are required to take out insurance to cover them for any liability to their employees. Sometimes a home contents insurance policy may insure the householder against accidents which occur on his or her property.

Although it is a legal requirement to take out car insurance this does not mean a claim cannot be brought if it is found that no such insurance is in place. If the driver of a car, for example does not have a valid insurance policy or if they left the scene of the accident and cannot be identified there is a body called the Motor Insurance Bureau (MIB) who can investigate and meet these claims if fault can be established.

Likewise, if there hasn’t been a successful criminal prosecution this does not mean a personal injury claim cannot be progressed as there are very different burdens of proof. Furthermore, lack of a criminal prosecution does not automatically mean a civil claim for compensation will not succeed, as the legal tests for criminal and civil cases are different.

Claiming Damages

The term “damages” basically means compensation. A claim for compensation is made directly against the person or organisation that is considered to be at fault. While this may include, say, another driver, your employer, a local council, or a property owner, it is also possible to claim against members of your own family through any relevant insurance policy they may hold. For example, if you are a passenger injured in an accident caused by the driver of the car in which you are traveling, then even if that driver is your partner or a family member, you can claim against their motor insurance policy-for the injuries you suffered and reasonable losses flowing from those injuries.

Compensation is legally referred to as either “General Damages” or “Special Damages”.

General Damages

The term “general damages” refers to the pain and suffering you have endured as a result of your injury, along with the loss of the quality of life. There are questions your solicitor will ask you to establish not only how severe your injuries are, but also how they have impacted your ability to carry out day to day tasks e.g., (driving; doing housework; working in your usual job, or if you are no longer able to play sports or enjoy your hobbies). Medical expert evidence is also obtained to provide further support on the nature and extent of the injuries you have suffered.

Special Damages

“Special damages” compensate you for all ‘quantifiable monetary losses;’ in other words providing compensation for money you have had to pay out, or have lost, because of an accident or injury. It may, therefore, cover such things as loss of earnings, treatment costs, a permanent carer, rehabilitation costs, travel expenses, prescription fees, and the cost of any special equipment or modifications to your home or vehicle. If possible, you should keep all receipts for any costs relating to your injury as evidence to support your claim for special damages.

Future Losses and Expenses

You can also add anticipated future losses to include:

• Loss of earnings if you are unable to return to work or you have returned to a lesser paid job
• Ongoing treatment and rehabilitation
• Care
• Accommodation
• Specialist equipment
• Housing and transport These costs are carefully costed out for the rest of your life.

Interim Payments

After sustaining a severe injury, meeting your immediate financial needs can be a struggle. Once solicitors are instructed, they will seek to obtain immediate financial help by way of an “interim payment”.

These funds are generally used to relieve any financial pressure and also to put in place a rehabilitation package to ensure the best possible recovery can be made. If funds are not readily agreed by the other side, your solicitor may suggest court proceedings be issued to initiate a formal application for an interim payment.

Reduction in Damages

Even if an injury was partly your own fault, a claim may still be successfully pursued. However, there may be a reduction in the amount of damages awarded. For example, if you are injured in a car accident and you were not wearing a seat belt and one was fitted to the vehicle, your compensation might be reduced. The level of any reduction in damages will depend on what extent you are considered to be at fault (this is known as ‘contributory negligence’).

Your compensation may also be reduced if the other side can prove that you did not reasonably mitigate your losses, that is, you did not do what you could reasonably do to keep them to a minimum.

Finally, if you have been receiving state benefit payments because of your injury, you may have to pay them back from any compensation you receive. The law does not permit “double recovery”. The rules are complicated in this area, and a personal injury solicitor will advise you accordingly.

 Check on www.gov.uk/ government/ collections/cru for more details.