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All posts for Understanding Law Claims

Should I accept an offer to settle my claim or have physio?

Should you take a claim settlement or have treatment? The big question!

With many injuries, treatment like physiotherapy is often key to help you recover from any ongoing symptoms at a much faster rate. You have a duty in law to ‘mitigate your loss’ which means you must take all reasonable steps to help yourself recover as quickly as possible and keep your losses to a minimum.

But when faced with the decision to accept an offer from the other side or have physio, what’s the best option?

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Tripped on raised paving caused by tree roots? Advice from The Injury Lawyers

To give you the insight as to whether you have a potentially winning claim if this has happened to you, I need to explain in brief how the law works:

The Highways Act 1980 puts a duty on local councils and highways authorities to take all reasonable steps to prevent a defect on the highway becoming a hazard. So to do this, they must employ a system of inspection and maintenance to review roads and paths for defects that have formed. These can be potholes, broken kerbs, or anything that could cause a tripping hazard.

A reasonable system of inspection should take in to account how busy the area is. So a city centre road may be inspected every one to three months, and a country road could be every 12 months. So if they can prove that they have a system that is reasonable, they’ve kept to it, and that the defect that caused your injury must have arisen in between inspection periods, they can very easily defend your claim.

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Occupiers Liability Act 1980 – Accidents in Public Places

Have you recently had a slip or a trip in a shop or your local supermarket? Whether it was food, liquid, or loose packaging that caused your accident, you may be able to claim for compensation under the Occupiers Liability Act 1984.

The Occupiers Liability Act 1980 states that places like supermarkets must take all reasonable steps to prevent someone from being injured on their premises. Although accidents in shops are very common when it comes to personal injury, the Occupiers Liability Act also covers other places of interest such as theme parks, cinemas and restaurants. So basically it applies to anywhere people are likely to visit in their spare time.
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Defective Premises Compensation Claims

The Defective Premises Act 1972 gives compensation to those who have been injured through defects due to the state of a premises they reside at. These cases are caused by a defect in the property itself, and not something which has been put into the property. For example, a door could form part of the property while a desk may not.

Who is responsible?

A person who builds or extends a property owes a duty to the person who ordered the work, and to every person who acquires an interest in the property to ensure the work is done properly with the correct materials. This duty is discharged if the building was built correctly with correct materials, unless the builder knows of a defect in the instructions and fails to inform the person who ordered the work to be carried out.
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When are Occupiers Liable for Injury on their Premises?

By definition, an occupier in common situations could be the owners of a shop, or supermarket, or restaurant etc.

Granting visitors permission

An occupier can invite people on to his property by giving permission to those people. This also includes people who have been licensed to enter the premises. If a contract is made for people to enter the premises, this is included, as are people who enter the premises if they have a right conferred by law.

An occupier has a duty to the visitors to see that they are reasonably safe in the premises for the purpose for which the visitors have gone or been invited there. This can be restricted in relevant circumstances.

The degree of care can differ in different situations. One example can include where occupiers should be more careful in regard to children as they may not take as much care as adults. An occupier can assume that a person will guard against any special risks so far as the occupier leaves them free to do so.
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Will pre-action disclosure prove liability?

Claims for compensation are governed by rules and regulations. When we initiate a claim we proceed under something known as a protocol. A protocol is a set of guidelines or rules that should be followed both by the Claimant and the Defendant. In order to start the claims process we gather information from you (as the Claimant). We then prepare what is known as a “letter of claim”. This is a formal letter setting out the nature and circumstances of the claim. In the letter we detail the circumstances of the accident, allegations of negligence, funding arrangements, and important documents that should be disclosed if liability is not admitted etc.

The letter of claim is ordinarily sent directly to the Defendant. In some cases it could be sent to the Defendant’s insurers (for example if the Defendant was a dissolved company). Under the protocol (the set of rules) the Defendant then has a period of 21 days to acknowledge the Claimant’s letter of claim. This is simply an acknowledgement of the claim. It is also normal for the Defendant to pass the matter to their insurers. Following the 21 day period, the Defendant or their insurers have a period of 3 months to investigate the claim and provide a response. If no such response is provided in the allocated period, the Claimant (well, the Claimants solicitors normally) can consider making an application to Court for pre-action disclosure. This is known as a PAD application in short.
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3 Month Protocol for Liability Decision

When pursuing a claim for personal injury the process can seem like a daunting one to undertake – however, when claiming for compensation there are certain time frames that the defendant must adhere to which can make the process a little more speedy and hassle free.

Pre action protocols were recommended by Lord Woolf in his final Access to Justice Report of July 1996 to build on and increase the benefits of early but well informed settlement. Having a specific protocol in place has many benefits for your claim including:

  1. Better and earlier exchange of information between the parties
  2. It enables claims to be settled easily and fairly, often  avoiding the need for litigation
  3. Promotion of the provision of medical and rehabilitation treatment for the injured party
  4. Standardisation of how claims are run across the board

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The Eggshell Skull Rule and Pre-Existing Injuries

Some people who are wanting to claim are often worried about doing so, mainly because they have concerns surrounding the injury they have suffered. The common worries are that their injury is a pre-existing one that has been or the accident has aggravated something that may not be common in every person and therefore may not be directly linked with the defendant’s negligent actions.

For example:  Bob works in a factory where he works with molten metal. Another employee negligently drops something into the liquid metal causing it to splash on Bob’s lip causing a serious burn. However, it also happens to land on premalignant tissue and consequently the metal triggers the cancer making Bob seriously ill. The other employee of course could never have expected the splash to cause such an injury – so can Bob claim for compensation for the cancer that has been triggered even though the most foreseeable injury is the burn?

The answer is yes and the above circumstances come from a leading case of Smith v Leech. A principle known as the “eggshell skull rule” means that the defendant has to take the victim as he finds them. Therefore if someone has a reaction to something but that reaction is because the claimant has a pre-existing condition or is more sensitive to something, the defendant will still be held liable for the injury.  This rule ensures that a defendant will not escape liability merely by relying on the claimant’s vulnerability or particular nature.
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Pre Action Disclosure Application (PAD)

You may have been told by your Solicitor that he or she is preparing to make a pre-action disclosure application (or PAD for short). This is basically an application to Court to request that the Court makes an Order to force the other party to disclose relevant documentation in accordance with the claim. Relevant documentation could include insurance details, works medical records, risk assessments, accident book entries etc. The relevant documentation will depend on the nature of the claim. Without such documentation it could be difficult for your Solicitor to assess your claim or the prospects of success in your claim. The documentation could be crucial in determining liability.

The application will usually result in a formal hearing at a County Court. You normally do not need to attend the hearing and we often instruct a Barrister to attend the hearing on our behalf. The hearing would usually last between 10 and 15 minutes. We prepare the application and produce a “draft order” which sets out the documentation that we believe should be disclosed. We also prepare a Statement setting out the correspondence between the parties to show that we have reasonably tried to get the information from the Defendant without the need for court action.
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Claims for Vicarious Liability

The basic principle of vicarious liability is that, if an employee injures someone in the course of their employment, the employer may be vicariously liable. This simply means that the injured person may be able to win compensation directly from the employer, rather than from the employee.

There are many instances where vicarious liability may occur. For example if you were involved in a road traffic accident with a van and the van driver was at the time of the accident acting in the course of his employment. If the van driver was at fault for the accident then his employer may be vicariously liable. An employer can be vicariously liable for the acts or omissions of his or her employees. An omission is simply a failure to do something. An example could be an employee failing to secure or put down a safety device on a machine which later causes injury. The failure to do something was the negligence and thus his or her employer could be vicariously liable.

The theory behind vicarious liability is that the employer is thought to have “deeper pockets” to compensate injured victims. Obviously if a company has insurance in place then ultimately it will be an insurance company who pays out compensation. This is why companies and businesses take out employer’s liability insurance.

It goes without saying that employers do not like vicarious liability.
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