How do I make a personal injury claim?
If you have suffered a personal injury and want to claim for compensation, knowing the basics of how to make a claim, and how to fund it, will be useful. Most personal injury claims will be settled before reaching court, but it is still necessary for most people to contact an injury solicitor to oversee their case.
How do I fund my claim?
There is no legal aid funding for personal injury claims (except for children in certain situations), however most solicitors will take on personal injury cases on a ‘conditional fee’ or ‘no-win, no-fee’ basis.
Some solicitors will take on cases under a damages-based agreement (‘DBA’). Under a DBA, your solicitors would be paid in the event of a successful claim, by way of a percentage of the value of your claim.
Some claimants are able to make a claim on their existing ‘before the event’ (BTE) insurance; for instance, under their household or motor insurance policy. Check your insurance policies to see what the terms are. If you have a BTE policy and you want to claim under it, the policy must have been in place at the date of the incident – and personal injuries must not be excluded under the terms of the policy.
We advise you to discuss your funding options with your injury solicitor before deciding what to do next.
Do I have an eligible personal injury claim?
You are not always entitled to compensation just because you have suffered a personal injury. Many injuries are the result of accidents where no one was at fault. However, many types of personal injuries are sustained as a direct result of negligence, for example:
- Medical mistakes
- Poor working environments and lack of training in the workplace
- Unmaintained footpaths or roads
- Defective products
- Lack of supervision in schools
- Contaminated food
- Dangerous driving
To make a successful claim for personal injury compensation, you must prove that your injury or condition was caused by someone else as a result of their negligence – that they breached their duty of care towards you. Your claim will usually be against the person or organisation responsible for your personal injuries (the defendant). This may be, for instance, an individual, a company, or a local authority.
In many cases, a claimant will settle their claim with the defendant without the case having to go to court. In other cases, the claim may reach a final hearing where the claimant will have to prove their case on the balance of probabilities (ie it was more likely than not that the defendant was to blame for the personal injuries). This means that you will need as much information and evidence as possible to support your claim, including medical evidence. Your personal injury solicitor will explain to you what is required to help your case.
If you are injured in a road accident and the driver of the vehicle who caused the accident was uninsured, or cannot be traced, you can make a claim for personal injury compensation from the Motor Insurers’ Bureau.
You can also claim compensation if you are injured as a result of a criminal act against you.
What’s the time limit for making a claim?
There are strict time limits in which you can start formal legal proceedings for personal injury compensation. This limitation period is three years after the date of the incident, or the date of ‘knowledge’ on which you became aware of the injury or condition. For instance, if you develop cancer many years after you ceased working in a factory but you believe your working conditions caused your cancer, you can make a claim within three years of knowing about your cancer. Asbestosis is a common illness caused by poor working conditions which doesn’t mainfest until many years later.
There are exceptions to the three-year limitation period:
Children: the limitation period begins on a child’s eighteenth birthday, so children can claim personal injury compensation up to the age of twenty-one (even for injuries that occurred at birth).
People with a mental disability: if someone is rendered of unsound mind by the accident or incident, time does not start to run until they are recovering. Time will not start to run against someone who had a mental disability at the date of the accident or incident.
People injured by a product: a claim must be made within three years of the date of the injury caused by the product; or of the date of knowledge – and within ten years of buying the product.
Apart from the above exceptions, the court also has discretion to disallow the limitation period. However, the court will have to be satisfied there are very good reasons to do so; for example, if the claim is a very good one and liability is undisputed by the defendant.
If you wish to claim outside of the three-year period, take expert legal advice on whether you can still make a claim.
How are damages awarded?
If you win your personal injury claim, compensation may be paid as one lump sum in final settlement of your claim. In other cases, it may be appropriate for interim damages to be paid out on account of your final compensation. For instance, liability may be admitted, or you have a very strong chance of success, but there is argument about what is a fair compensation settlement. The claimant may need an interim payment to allow a decent standard of living, to access better accommodation, and so on – and interim damages can effectively free up some cash for this purpose.
Provisional damages are sometimes paid out if recovery is still ongoing. If, for instance, there is a very strong chance the claimant could go on to develop a more serious condition related to the primary injury or condition, an order for provisional damages allows the claimant to ask the court for further compensation later.