A spinal injury can occur in many different ways. No matter how you received your injury we are here to help and can advise you on how to make a claim. There will undoubtedly be many questions which you’d like to ask. A few examples may be:-
- Why should I choose Withy King Solicitors?
- Have I got a case?
- How long will my claim take?
- Will I win?
- How much will it cost?
A claim for compensation can be complex. This guide is intended to provide an outline of what is involved in a claim to help you to understand the issues that are involved. All claims are different and any specific issue relating to a particular claim will be considered individually.
Withy King are accredited to the Spinal Injuries Association (Corporate Partner), the Association of Personal Injury Lawyers (APIL) and have several members of the Law Society specialist Personal Injury Panel.
These notes are intended to assist in relation to a claim through the English Courts for compensation arising out of an accident in England or Wales. Separate considerations apply to claims arising:-
- outside England and Wales
- against the Criminal Injuries Compensation Authority
- against the Motor Insurers Bureau
Liability
In England and Wales there is no automatic right to compensation if someone is injured as the result of an accident. Compensation will only be awarded if the person bringing the claim (Claimant) proves the case and establishes that, on the balance of probabilities (more likely than not), the Defendant had an obligation to the injured person to take care, the Defendant broke the duty of care and this caused or substantially contributed to the injuries and other losses for which compensation is claimed.
It is firstly necessary to consider whether a duty of care has been broken. The driver of a car has an obligation to take reasonable care for the safety of other road users. An employer has an obligation to take reasonable care for the safety of people employed.
Different legal principles apply to an accident on land to which the Claimant has been invited or allowed to enter. The Claimant has to establish that the land itself was dangerous. It is not sufficient that a dangerous activity was carried out on land.
In some situations the circumstances of an accident can, in themselves, be sufficient to prove liability in which event the onus reverts to the Defendant to show that despite all reasonable care the accident could not have been avoided.
Contributory negligence
Even if the Defendant is at fault, compensation can be reduced if the Claimant was also, to some degree, responsible for the injuries. In this case the compensation will be reduced by the percentage for which the Claimant is responsible. One example is that if a passenger in a car is injured by the driver’s negligent driving but the passenger was not wearing a seatbelt, compensation will be reduced if a seat belt would have either prevented or reduced the injuries.
Cause of the Injury
It is also necessary to establish a direct link between the accident and the injury. The injury and financial loss for which compensation is claimed must have been caused or materially contributed to by the accident.
Compensation
The purpose of compensation is, as far as possible, to put the Claimant in the financial position which would have applied if the accident had not happened. If the claim succeeds and the injuries have been caused by the Defendant’s fault, careful consideration has to be given to the items for which compensation can be claimed which are:-
- Pain and suffering and loss of amenity
- Past financial loss and expenditure
- Future financial loss and expenditure
The award for pain and suffering and loss of amenity is valued according to medical reports and only when clear medical evidence can be given relating to the Claimant’s prognosis, including life expectancy.
Past financial loss or expenditure
This can include loss of income, travelling expenses, provision of care and equipment and also the cost of alterations at home if building work has been necessary.
Future losses
For people who have been seriously injured, this is invariably the largest part of the award. It includes future loss of income, the cost of future care, equipment, transport, accommodation, holidays, computer technology and the cost of additional household expenditure. The Claimant’s life expectancy is particularly important as the claim will be calculated for the rest of the Claimant’s life according to the evidence. Other reports will advise on the extent and cost of expenditure which will be necessary throughout the Claimant’s life.
In many cases the medical evidence can paint a clear picture of the Claimant’s future life to enable damages to be calculated. Once they have been paid no further award is made. If, however, there is a chance that at some time in the future the Claimant will suffer a serious deterioration in health arising out of the injuries, provisional damages can be awarded at the Court’s discretion. In this situation the Claimant would be awarded immediate damages on the assumption that the chance condition would not occur but would have the right to return to the Court in the future to claim additional compensation if the chance condition does occur.
Periodical Payments
Compensation for pain and suffering and past losses is made as a lump sum payment. Compensation for future losses can be awarded either as a lump sum or alternatively as a smaller lump sum with the rest paid by way of periodical payments. The Court now has power to order an insurer to pay periodical payments. There are advantages and disadvantages to both methods of payment and specific advice will be given at the appropriate time.
Court proceedings
It is sometimes possible to agree compensation without having to involve Court proceedings. If, however, the Claimant does not agree with the insurance company’s denial of liability or allegation of contributory negligence or value of the claim, Court proceedings can be issued within three years of the accident in which the Court will decide issues of liability, contributory negligence and (if the claim succeeds) the amount of compensation. The Court controls the speed at which a claim proceeds through the Courts. The Court will decide which expert witnesses can be used and where the hearing is to take place. The Court gives a timetable for the various procedural steps which have to be taken before the claim comes in front of a Judge. The Court aims to deal with a case fairly, with the aim of ensuring that all parties are on an equal footing and that the claim is dealt with as quickly as possible and fairly.
A substantial number of claims do not proceed to a hearing before a Judge and often agreement is reached between the parties as to the amount of compensation to be paid.
Most cases which succeed have been funded by a Conditional Fee Agreement under which no fees are payable until the claim succeeds. Funding can be a complex issue and specific advice is given on each claim.
Our many years of experience enables us to help our clients win maximum damages in the shortest possible time. We fight very hard for all of our clients and protect their interests as best we can. The compensation process can be protracted and we will support you through the procedure at all stages. These notes offer an overview of the procedure involved and will be supplemented by specific advice on your claim as it progresses.
As well as dealing with your spinal injury claim and obtaining compensation of damages, Withy King can also advise you on other legal matters, both before and after settlement of your claim. These include:-
- Recommending independent financial advice on receipt of interim payments and a final award of damages
- Advice on the setting up of a Personal Injury Trust
- Conveyancing
- Wills
- Powers of Attorney
