Six frequently asked questions about personal injury claims
Posted on 24th February 2020
Over the years, it has become clear that claimants tend to ask similar questions about their claim and how the process works. Here we answer some of the most popular:
What does limitation mean?
There is a fixed period of time during which a personal injury claim can be made. In relation to personal injury claims involving adults, the general rule is that a claim must be commenced within three years from the date of the accident. If the Court proceedings are not formally commenced before the three year deadline then, the claim is statute-barred under the Limitation Act 1980. There are of course exceptions when an adult is not prevented from making a personal injury claim just because the limitation has expired. However, it is the Court that has the discretion to extend the three year limitation period.
In claims involving children, the time limit for claiming personal injury is different from that of adults. The three year limitation period only starts when the child reaches their eighteenth birthday hence, a child can claim personal injury up to their 21st birthday.
Can I bring a claim for an accident that was my fault?
It is extremely unlikely you will be compensated if you were entirely responsible for an accident. However, you may be able to receive compensation if you were partly to blame for an accident, this is often referred to as contributory negligence. For instance if you are 20% to blame for a road traffic accident you could still bring a claim however, your compensation would be reduced by 20% to reflect the proportion of your fault.
What is the difference between general damages and special damages?
Claimants are entitled to be compensated for pain and suffering and ‘loss of amenity’ (‘PSLA’), commonly known as general damages as long as it can be established that the injury was caused as a direct result of the accident. The pain and suffering element of the award aims to compensate claimants for physical but also psychological symptoms. The loss of amenity compensates claimants for loss of enjoyment of life or a reduction in ability to perform everyday tasks.
In addition to general damages, claimants are entitled to be awarded compensation for financial losses resulting from the accident, this head of loss is known as special damages. Common examples of special damages are loss of earnings, future loss of earnings, travel expenses, medical expenses, care and assistance, rehabilitation treatments recommended by the medico-legal experts, repair or replacement of damaged property and so on.
When claiming special damages claimants have to provide sufficient evidence in order to support their losses. Without any documentary evidence, the losses they have incurred are unlikely to be recovered from the third party insurers.
Why does my Solicitor wish to obtain my medical records?
An entry made in your medical records following the accident may assist you in proving your claim and the extent of the injury you sustained as a result of the accident. It is therefore always advisable for claimants to seek medical attention following an accident, even if the accident is minor in nature.
It is good practice for solicitors to obtain and review their clients’ records. The solicitor will normally request the entirety of the claimant’s GP records to include entries dating from before and after the accident. Your solicitor will also request your hospital records, x-rays and scan results, when relevant of course. Your solicitor will never apply for your records without your consent.
Depending on the type of injury suffered, it is often necessary for the medico-legal expert to have sight of your medical records prior to your examination taking place. The independent expert will review your records and take into consideration any entries which are relevant to the injury for which you are claiming compensation. Your medical records will assist the expert in providing an accurate prognosis and prognosis.
For instance if you injured your back following a road traffic accident, any pre-existing entries in your medical records relating to back pain will be relevant for the purpose of compiling your report. The expert will need to determine whether you were more vulnerable because of your pre-existing back symptoms and how your pre-existing symptoms were affected by the accident.
What is causation?
When liability is admitted or when the claimant’s solicitor is satisfied the claim has reasonable prospects of success, the next step will be to prove causation. To prove causation, the claimant must produce independent medical evidence. This is usually in the form of a report prepared by an independent medico-legal expert following an examination with the claimant. In the medical report, the expert will provide details of the injury sustained by the claimant, the effects of the said injury and full recovery is likely to take place. The expert will also confirm whether the symptoms the claimant is complaining are attributable to the accident.
How are General Damages valued?
In order to accurately assess the value of a claimant’s general damages, medical evidence is necessary. The discipline of the expert will depend on the nature of the injury the claimant has sustained. If the claimants sustained numerous injuries, several experts may be instructed.
A few weeks following the medical appointment, the solicitor will receive the claimant’s medical report. The solicitor will review the report to make sure it is broadly correct and to identify the relevant issues raised within the report. The report will be sent to the claimant and it is for the claimant to ensure their report is factually accurate. The report will always have to be approved by the claimant prior to being disclosed to the third party insurers.
One of the most important parts of the medical report is the prognosis. The prognosis is the expert’s estimate of the length of time it will take for a claimant to fully recover from their injury. The prognosis is a very important element as it will determine the extent of compensation a claimant is likely to receive.
Having to put a monetary value on someone’s pain and injury is not an easy task. When assessing general damages, solicitors will first of all rely on the medical evidence prepared by the medico-legal expert. The solicitor will then refer to the Judicial College Guidelines which set out financial brackets for common types of injury. These brackets have been prepared by a number of barristers and judges and the figures are published annually. Precedent case law where claimants have suffered similar injuries are also considered when assessing general damages.
The level of compensation a claimant receives depends on numerous factors and is different for every single claimant. It is however, important to note that in every cases.