Dealing with the Third Party Directly

This should be avoided! The third party is the person, company, or representative of the person/company responsible for the accident. It’s advisable to get independent representation – you can never be sure that the third party has your best interests at heart. With independent representation, you know you have an expert on your side; dedicating themselves to you and your claim!

So what you need is an independent expert lawyer representing you for the case, which brings nicely to my next point:

Choose Your Lawyer Carefully!

Firstly, make sure you choose who is representing you. It’s often the case in road traffic accidents that your insurers refer your claim on to a third party solicitor. More often than not, the third party solicitor they refer the case to is the highest bidding one (I.e. the firm that pays the most to your insurers for your claim!). The issue is that if they have already paid a vast sum of money for your claim, they have fewer resources to spend on you and the claim itself! This often leaves them giving you a poorer service, and even less compensation, as they haven’t got the resources to fight the case harder!

So, it’s advisable to get an independent law firm on your side – one who isn’t in any way attached to other insurance companies or claims companies. That way you know they will do their best by you! It’s essential that you choose the lawyer you want to represent you. Being allocated a lawyer is not always a good thing – how do you know they will be the best for you? Look around and see who offers you the best advice, and who you feel comfortable and confident in instructing. The choice is yours, and no one should ever take that away from you!

So now you know to get an independent lawyer on your side, make sure they represent you on a genuine no win no fee! Only a genuine no win no fee guarantees no charges for an unsuccessful or successful claim. We experts only take on claims if we are confident the case will win – therefore we don’t expect to lose – which is how we can offer the genuine no win no fee! And for a successful claim, we charge the other side, and never make any deductions or charges for you claim – never! Not a penny!

In fact, we at The Injury Lawyers do things a little different. We actually restrict our legal fees to whatever we can recover. So, for a successful claim we cannot charge you! It’s not possible! And that’s what we like for a claim for compensation; for the victim to get 100% of the money they deserve.

So for some further advice, don’t hesitate to give us a call (it’s FREE on 0800 634 75 75) – and receive a no obligation chat on claiming. We’re happy to be of assistance!

The case of Jonathan Harvey v Plymouth City Council (2009) concerned the Claimant (Harvey) whom sustained serious injuries after falling on the Defendant’s property and falling some 5 1/2 metres. The Claimant had been out drinking with his friends when they ran on to the Defendant’s land. The Claimant fell over some broken fencing causing him to fall down in to the car park of a Tesco’s supermarket. The Claimant was left with serious brain injuries.

The local authority argued that they did not know that the property was owned by them at the time of the accident and therefore could not have taken reasonable steps to ensure that the land was reasonably safe. It is understood that some 8 years before Mr Harveys accident the Tesco’s supermarket had licensed the land from the local authority for a period of 2 years. After the expiry of this 2 years period the local authority (the Defendant’s to this claim) did not take any steps to inspect or maintain the land (although they did mow the nearby grass verge).

The Claimant’s representatives made extensive enquiries into the land and the use of it and revealed that the land had evidence of gathering of large groups of youths whereby smoking and drinking were all evidenced in the area. The Claimant’s representatives therefore argued that it was reasonably foreseeable that youths congregate around the area and more importantly, they might be ‘fooling around’. They concluded that the Claimant was a visitor to the property and was owed a duty of care by the local authority under the Occupiers Liability Act 1957 – the local authority had breached this duty.

The local authority maintained that they could not owe any duty of care as they were not aware they owned or occupied the land in question.

However, the local authority did admit that they owned the land.

It was held that the local authority knew they owned the land before Tesco’s development; they therefore would have known that Tesco only licensed the land for a period of 2 years – ultimately they should have therefore taken steps to consider what needed to be done with the land to ensure it was safe for use by the public after this 2 year period had expired.

It was further held that it did not need to be proved that the local authority had ‘actual knowledge’ of how the land was being used before individuals using the land became visitors under the Occupiers Liability Act  and thus owed a duty of care. The fact that the local authority accepted that it owned the land meant that they should have considered/known how the land might have been reasonably used.

Unfortunately, Mr Harveys damages were reduced by some 75% due to the fact that he had been drinking and his judgment was therefore impaired. It was deemed that had he been sober he would have been much more aware of his surroundings and it is highly likely he would not have run on to the land as he had.

This is an important case for slip and trip claims against local authorities as it will make it more difficult for authorities to remove themselves from their liabilities. If they accept that they own the land (regardless of whether or not they claim to ‘know’ they own the land) whereby you sustained an injury due to a defect, then they owe you a duty of care under the Occupiers Liability Act 1957 (this will not be so straight forward if you are found to be trespassing on property). If the local authority can then not provide evidence to show that they have a reasonable system of inspection and maintenance in place, then it is much more likely that you will succeed in a claim against them.

So How’s it Work?

Well what us specialist personal injury lawyers always make sure to do is get you seen by an independent medical expert. A consultant specialising in medico-legal reporting is qualified to assess the full extent of your injuries. They will produce an expert report that will give us all the information we need to value the claim. We then use a combination of our extensive experience combined with some quality case law (cases with similar injuries and similar accident circumstances), and the JSB (Judicial Studies Board) guidelines in order to put some pounds on your injuries.

So What’s Next?

Once we have fully assessed the medical evidence we will disclose the evidence we have to the other side (defendants insurers, solicitors, or claims representatives’) and invite them to make an offer for settlement. They usually come in with a low offer – so we use our experience and knowledge to fight them for the maximum you are entitled to recover under the law. We won’t just let them get away with under settling claims; we will fight them for every penny your claim should be worth. And we will make sure we get it! It’s a bit of a bargaining process to be honest.

What Else do we do?

Well you’re not just entitled to claim for your injuries – we will recover any losses you have incurred that are a direct result of your injuries! The biggest example here is loss of earnings; if you’re off work for a week and you’re not paid for it, we will claim it back for you! If you pay for any medication, we will claim it back for you! Just make sure to keep receipts for the things you’ve paid out for, and we will aim to claim it back for you!

Another big one here that people often miss off is care and assistance – you can claim back a figure for the hours another person has put in in helping you whilst you’re injured. Even if it’s a family member and you haven’t paid them, you are still entitled to claim back a sum for the work they have put in helping you out! So make sure you don’t miss out on this as it can potentially make up a large proportion of your overall claim! Us specialist injury lawyers never miss anything out – you will get the maximum you are entitled to recover!

What Should You Not Do?

Never accept any offers from the third party directly! A big example here we refer to as “Third Party Capture”. This is when the third party (usually insurers in a road traffic accident) contact the victim and offers them a quick cash lump sum settlement for their injuries. But without medical evidence there is no way they can assess your injuries – so the figure they’re giving you is completely fabricated!

Only with a specialist personal injury lawyer representing you can you make the best of your claim! So choose your solicitor well! See who offers you the best advice!

What it Means

By definition, this is when the defendant (the person or company responsible for the accident) accepts that they are responsible for an accident, but alleges that the claimant (the person injured – the people we fight for!) was partly to blame for the accident or for their injuries. Usually it is made through their insurers or solicitors.

A primary example is perhaps an accident at work. Let’s say Joe Bloggs has an accident at work. A cranes arm was defective and a piece of equipment fell and hit Mr Bloggs on the head – luckily the object didn’t weight too much so he wasn’t too seriously injured! But at the time he was not wearing his protective helmet, which is a requirement with the company when on the building site he works on. So his injuries were worse because of it. Well, the company is still at fault due to their crane being defective – let’s say it wasn’t maintained properly enough – but Joe suffered worse injuries because he wasn’t wearing his helmet. The company accept liability, but due to Joe not wearing a helmet he was found to have contributed to his injuries as they were worse. Contributory negligence can be found here.

What happens is that he is still paid out in compensation, but a % (let’s say 20% here) is reduced from his compensation because he wasn’t wearing a helmet; a requirement with his company. So, if his overall reward for compensation is set at £5000, he will receive £4000 – £1000 less due to the 20% reduction for his contributory negligence.

In this quick example, it can be said that it is the case that it is fair. But as mentioned above, insurers do on occasions allege it to try and save themselves some money! We as specialist personal injury lawyers fight hard to try and make sure the claimant gets 100% of the compensation they deserve! So in cases where we believe the contributory negligence is not warranted, or the amount is set to high (which is often the case!), we extensively research past case law and use our wealth of experience and knowledge to fight hard to get the claimant as much as we can!

A big example is of a recent case of Stanton v Collinson [2010]. The Court of Appeal recently upheld a Judge’s decision to not find a teenage car accident victim contributory negligent in failing to wear a seatbelt (http://www.bailii.org/cases)

Mr William Stanton suffered serious brain damage following a car accident in which he was a passenger, when the driver Matthew Collinson hit an oncoming vehicle whilst doing more than double the 30mph speed limit, and had been drinking (although was found just within the legal limit). Matthew Collinson was also not wearing a seatbelt and was killed instantly. It was also heard that another passenger at the time was sitting on Mr Stanton’s knee when the accident occurred.

According to the source, The Judge first considered the case of Froom v Butcher which concluded no reduction should apply. The reasoning came from the fact that wearing a seatbelt would have been unlikely to have sufficiently reduced the extent of the brain damage sustained. The Judge commented that “in the absence of something exceptional, there should be no reduction in damages in cases where the injury would not have been reduced ‘to a considerable extent’ by the seat belt”

Of course it is always best to have the expert personal injury lawyers representing you for your case! Make sure that you get a specialist, independent lawyer who can maximise the potential in your claim; and fight your corner when it comes to contributory negligence or any other disputes!

The situation in the case of Fairchild v Glenhaven Funeral Services was exactly the same as the situation above and all the individuals claiming had contracted Mesothelioma through working for several different employers over a period of years.

From the start each of the employers admitted they had patently failed in their duty to protect their employees from the dangers of asbestos. Therefore the issue remaining was not that these individuals could claim but how was it possible to prove which of the employers was in fact responsible for their illness?

The House of Lords were able to negotiate this problem by making all the employers liable for the losses claimed by these individuals as any one of them by their actions could have caused the onset of the Mesothelioma. In addition each of the individuals did not have to prove fully that their employers had caused their injuries.

The impact of this case was that it safeguarded the rights of workers who had been subject to appalling working conditions and had been lumbered with life-threatening conditions and so opened the way for solicitors to negotiate compensation for individuals who had not been able to claim rightfully for a number of years.

The case stemmed from Mrs Donoghue visiting a cafe with her friend in Paisley. Her friend bought her a ginger beer float (which is a glass of ginger beer with ice cream floating on top) importantly the contents were contained in an opaque bottle. Mrs Donoghue proceeded to take a sip from the bottle and then when her friend topped up the drink the remains of snail came out of the bottle. As a result Mrs Donoghue said the sight of it made her ill.

Ultimately Mrs Donoghue sued the manufacturer and the claim ran all the way to the House of Lords where she won her case. The basis of the House of Lords’ decision meant that manufacturers of any products would be liable to consumer if they did not take reasonable care to ensure that their products are safe for use. Furthermore, manufacturers would be liable if they if they could “reasonably foresee” that their failure to take care in checking the safety of products would lead to injury to another individual.

This decision is still relevant today as if you have bought any product from a retailer that is faulty and it causes you injury this case will allow you to bring a claim for compensation.

The rise of this tactic by insurers is probably a result of the fact that more people are becoming aware that they can claim for compensation from accidents and so many insurers are looking to cut their losses by throwing money at your claim which may not necessarily be a fair and accurate reflection of what it is worth.

If you accept these offers they may serve to bring a quick resolution to your claim but it is worth remembering that your solicitor needs to send you to a medical appointment with an expert so as they can provide a report with which to place an accurate value on your injuries. The danger of accepting a pre-medical offer is that it will not include any treatment costs for such things as physiotherapy or MRI Scans (if your injuries are serious enough) or your financial losses – if for example you have been absent from work for a long period of time and you have not been on full pay.

Therefore the risk of accepting pre-medical offer is twofold:
1. You are unlikely to get the right amount of compensation that you deserve for your injuries,
2. You are likely to be left out of pocket as your financial losses from the accident will not be included in any settlement agreed.

This goes against the legal principle behind making an injury claim which is as far as possible you should be put back in the position you were in before the accident happened financially or otherwise.   

The lesson to be taken away from pre-medical offers is that you should not deal directly with the other side’s insurers and instead place your claim in the hands of an experienced solicitor (such as The Injury Lawyers) who will be able to negotiate the amount of compensation that your claim deserves.

Key to helping you bring your compensation claim is the personal injury pre-action protocol which is one of The Injury Lawyers main tools in bringing your claim to an effective conclusion.  The protocol was first recommended by Lord Woolf in his access to justice report of July 1996. Essentially its aim is to ensure that both parties to the claim disclose to each other the evidence relevant to your accident so as The Injury Lawyers can consider fully whether there are prospects to take your claim on.

To put the protocol into context in the progress of your claim, The Injury Lawyers will write to the responsible party informing them that they are representing you in your claim and will request in the letter that the responsible party pass the letter to their insurance company who then have 21 days to acknowledge your claim.

After this time the responsible party’s insurers have three months under the protocol within which to admit or deny fault for your claim. At the end of this period if they do not accept fault, they must come back with a full range of reasons why they are disputing.

This may sound straightforward in theory but unfortunately many insurers do not come back within the three month period and this can potentially slow your claim down.

However, The Injury Lawyers distinguishes itself from many other firms by countering this issue by making an application for pre-action disclosure against the other side. The implications for your claim are that an application can be made to the court (which will be heard by a judge at a hearing) which if successful will mean that the court can make an order which specifically forces the other side to disclose all the evidence they have relating to your claim and make definite comments on whether they admit or deny fault for your claim.

At The Injury Lawyers we pride ourselves on making these applications regularly and they are one of the reasons why we can provide a swift and effective outcome to your compensation claim.

Clients, on occasion, will argue that their claim is worth more than is being advised because ‘Jo Blogs’ down the road received more or ‘someone’ told them it would be worth ‘X’ amount. Many clients believe that liable Defendant’s should pay out sums of money for general inconvenience caused or as an apology for causing the incident. Unfortunately, the system does not work in this manor…so how does it work? Are there rules and guidelines in place to aid when making valuations?

The answer is yes and the guidelines in place are the ‘JSB Guidelines’.

The JSB Guidelines are not ‘law’ but there use is encouraged across the courts and most (if not all) insurers and solicitors will use the guidelines when valuing client’s claims.

Why were the guidelines implemented?

One of the most difficult yet common problems for judges hearing personal injury cases in the civil courts, is the assessment of damages for Claimant’s whom have suffered pain, suffering or loss of amenity as a result of the Defendant’s actions. Damages cannot be precisely calculated and each and every case heard, is different. Whilst there is no method of calculation, judges need to ensure that there is some consistency between awards which are made.

As you can see, judges faced a difficult challenge when valuing claims for personal injury and it was thus decided that a framework needed to be established in order to assist them in the process. This is when the JSB Guidelines were brought into place…1992 to be precise!

The Guidelines intended to provide a framework whereby cases would fall under an umbrella term dictated by the injuries suffered by the Claimant.

What were the intentions of the guidelines?

• They filter out the unnecessary and irrelevant points which are found in case law.
• It illustrates the results of case law in ‘layman’ terms
• The results are depicted in a more logical and coherent format.

What the guidelines do not intend to do:

• They do not intend to provide a solution to the existing problems
• They most importantly, do not intend to restrict the judgment of each individual case.

We now know why the guidelines were implemented and what they intend to do in terms of aiding the courts in valuing personal injury claims so lets look at an example.

Mrs Smith was travelling back from her holiday in Cornwall. She is travelling as a front seat passenger, her husband is driving and her 2 children are seated in the back. All family members are wearing their seatbelts and Mr Smith is always cautious when keeping to the speed limits. They reach a junction and have to stop to give way. It is at this point that their vehicle is impacted from behind at very high speed. Their vehicle is shunted out into the traffic on the main road, causing let another collision with another vehicle.

Mrs Smith immediately notices pain in her neck and back but she is able to move and exit the vehicle unaided. However, Mr Smith and their eldest daughter are trapped in the car. Mrs Smith is able to get her youngest daughter out of the vehicle whom is crying.

The fire brigade is called to cut Mr Smith and their daughter free from the vehicle. Mr Smith is placed on a spinal board and taken straight to hospital, as is their daughter.

They later discover that Mr Smith has a broken leg, some broken ribs and has a severe whiplash injury to his neck and back. Their eldest daughter has a broken nose, severe bruising to her right side and again a whiplash type injury to her back. Mrs Smith and her youngest daughter escaped any serious injury but have whiplash injuries to their neck and back.

So what can they expect to receive with regards to compensation?

Below are some examples from the JSB guidelines relating to the injuries that they have sustained and the brackets in which their compensation rewards are likely to fall.

Mr Smith’s leg injury:

(c) Less Serious Leg Injuries

(i) Fractures from which an Incomplete Recovery is Made

The injured person will be left with a metal implant and/or defective gait, a limp, impaired mobility, sensory loss, discomfort or an exacerbation of a pre-existing disability… £11,500 to £17,750

(ii) Simple Fracture of a Femur with No Damage to Articular Surfaces… £5,750 to £9,000

(iii) Simple Fractures and Soft Tissue Injuries… Up to £5,750

Mr Smith’s leg injury falls in to the ‘less serious leg injury’ category and a valuation in this respect will depend on the severity and duration of the leg injury.

The eldest daughter’s broken nose:

(c) Fractures of Nose or Nasal Complex

(i) Serious or multiple fractures requiring a number of operations and/or resulting in permanent damage to airways and/or nerves or tear ducts and/or facial deformity… £6,750 to £14,750

(ii) Displaced fracture where recovery complete but only after surgery… £2,500 to £3,250

(iii) Displaced fracture requiring no more than manipulation… £1,600 to £2,000

(iv) Simple undisplaced fracture with full recovery… £1,100 to £1,600

Again, the valuation will all depend on the severity and duration of the injury. If a full recovery is made without any complications then a lower valuation is to be expected. However, should the fracture require surgery in order to correct it then she can expect to recover a much higher valuation.

These are just a few examples and the above scenario contains multiple injuries. All injuries will be covered by a framework similar to the examples provided above and all aspects of the injuries will be taken in to consideration alongside the consideration of existing case law.

Whilst the JSB Guidelines are not a definitive answer as to what you will definitely receive with regards to a compensation reward; they act as a very good indicator and you can be sure that they will be used and followed when your own claim is being valued.

Medical Negligence: the term itself is straight forward; for example medical staff failing to sufficiently examine and diagnose a patient or administering the wrong treatment.

So it’s never nice to hear about a serious medical negligence case that has resulted in the death of a young boy; particularly when it could have been prevented.

BBC has reported of a coroners rule criticising Darlington Memorial Hospital for the treatment of the young boy who was sent home and refused antibiotics as the staff failed to spot the early signs of meningitis.

Sadly, the young boy thereafter suffered a horrific seizure and slipped in to a coma from which he never recovered. The young boy was reportedly in a lot of pain on his initial visit to the hospital before he was seemingly prematurely discharged. The coroner’s report ruled that the young boy died of “natural causes to which a delay in giving antibiotic treatment for meningitis may have contributed“.

The inquest also heard that there were no medical notes and no medical examination of the boy took place, complete with inadequate discharge documentation.

The case appears that health staff did not adequately examine or treat the young boy, and the family are subsequently taking legal action, stating “He was denied the most basic of medical care and denied human compassion.”

Amongst the varied types of personal injury claims we as specialists in the field pursue, medical negligence cases are one of the more complex; and often the injury consequences are more severe.

Hospital trusts and health staff are bound by legislation to ensure that they do not fail in their duty of care to their patients.

If you have been injured as a result of medical negligence, we strongly advise you seek expert legal advice to discuss your options.

Legal action often results in procedural changes to ensure there are no repeat cases or similar incidents. The lessons here, particularly in cases as serious as this, are lessons that need to be learnt.