Common Misconceptions About A Personal Injury Claim
I have been a personal injury solicitor for almost 10 years and in that time, I have come across a number of client misconceptions about personal injury claims. Here are just a few:
Misconception 1 – The length of the claim process
The claims process often takes quite a longer than many clients think. On average, from setting up a claim to settlement, it can take around 12 months. A defendant is allowed up to 3 months to investigate liability. Even if liability is admitted quickly, it can take a couple of months for the medical evidence to be obtained and then settlement negotiation needs to take place between the parties. Where there are absolutely no delays sometimes a claim can settle in under 12 months. More often than not though, more time will be spent investigating and / or challenging liability and a number of medical records will need to be obtained. There are also cases that take years to settle, particularly when court proceedings have to be issued.
Misconception 2 – Punitive damages
Unlike in the US, there is no such thing as punitive damages in a personal injury claim. The compensation is based on the level of injury only and the defendant’s conduct has no bearing whatsoever on the level of compensation.
Misconception 3 – Once liability has been admitted, compensation is guaranteed
Once liability has been accepted by the defendant (which is the first hurdle to overcome in the claims process), medical causation then needs to be established before any compensation is paid. Establishing liability alone is not sufficient to guarantee that compensation will be paid.
Medical causation is the link between the accident and the injuries. This must be proved by obtaining medical evidence.
For example, medical causation may not be established if a claimant says that they injured their knee and shoulder in an accident but the accident report book states that they only injured their knee. Subsequently, if medical treatment was only sought for the knee injury there will be nothing in the medical records to prove that the shoulder injury was as a result of the accident so compensation would only be based on the knee injury.
Another example is if a claimant reports injuring their back in an accident but their medical records show that they had previously injured their back prior to the accident. If the accident made their back no worse, medical causation is not established and no compensation will be paid.
Misconception 4 – The level of compensation
Compensation in personal injury claims is notoriously low in England and Wales. To determine the level of compensation, we consider similar cases and also use the Judicial Studied Guideline (JCG). The JCG lists every injury and gives a bracket for different severities. As stated above, the defendant’s conduct (before, during and after both the accident and during the claim) does not affect the amount of compensation paid. It simply comes down to the nature and severity of the injury.
Many clients believe that their compensation should be higher as a result of the defendant’s conduct post-accident, for example for the lack of follow-up care but unfortunately this is not the case.
The general population’s view on the level of damages is also not helped by newspaper headlines reporting an injured party receiving millions in compensation after what is perceived as being a very minor accident. These headlines are obviously there to get the readers’ attention. For a significant amount to be paid in compensation it is because the injured party has significant and often life changing injuries, which often include an award for future losses, including care, earnings and pension.
Misconception 5 – Expecting similar compensation to someone else as the accident circumstances were similar
Even if the accident circumstances are similar it is rare that the compensation in two claims is the same. The compensation is based on the medical evidence, which includes considering the individual’s past medical history, how the accident has affected their day to day activities including their work, what treatment they have had and may need in the future as well as whether a full recovery has been made and what the likely of future complications are. Taking all these factors into account means that it is rare that two people will receive the same amount in compensation even if the accident circumstances were similar.
Misconception 6 – Starting court proceedings will speed up the claim’s process
More often than not, starting court proceedings actually significantly delays the process. This is because the parties must adhere to the Court’s timetable and the steps are often very spread out. Court hearings are listed some time into the future and often the parties can progress a case much quicker without the court’s involvement. Covid has also led to delays with court hearings being postponed and not being relisted for several months.
Misconception 7 – Claimants wanting their day in court
Often clients want their day in Court as they feel that this may help come to terms with the accident, injury and the aftermath. Whilst this may assist some clients, often the daily effects of dealing with the litigation is often worse and what helps many clients is securing a settlement as soon as possible and not having to deal with the ongoing litigation.
If you’re seeking legal advice relating to personal injury please call our highly experienced personal injury experts on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back online.