Personal injuries ( 4.37.3 )
1. Personal injury can result in a client needing advice about a range of other problems, for example employment, benefits or debt. The client may have suffered emotionally and need counselling support, or there could be a language problem leading to a misunderstanding of procedures.
2. The client may not be aware that s/he could be entitled to compensation, but also s/he may not have decided what outcome they are seeking. The client may want to complain officially about a situation, or save others from similar injury.
3. This information item deals with courses of action which the injured client could take.
4. The adviser needs to establish:
What is the injury
5. In some cases it will be obvious that there is a physical injury, but other cases may not be so clear, for example:
It is impossible for the adviser to judge the extent of the client's current injury or future deterioration. All the adviser can do is accept and record what the client reports.
6. If the client decides to take legal action s/he will need to get medical reports about the injury and any future foreseeable consequences. Therefore if the client has not already seen her/his doctor s/he should do so as soon as possible. Photographs, with dates taken may also be useful.
7. Where the client's injury may have been caused by medical negligence s/he should be referred to her/his lawyer or for legal aid immediately. This is because time is a factor in legal action, and the client can be advised regarding the need for other professional medical opinions. See also paras 46 and 47 Complaints procedures.
Has the client suffered any other loss
9. The client should keep a list of such expenses, with receipts or other evidence of losses, eg a letter from the employer stating what wages the employee would have received with any bonuses or overtime payments. If sick pay has been received at less than normal earnings level, the shortfall in wages should be listed.
10. The client can claim for reasonable and necessary financial losses in the circumstances. S/he has a duty to mitigate these losses as far as possible, for example, by using public transport rather than taxis where appropriate. Evidence that expenses have not been mitigated can count against the client's claim.
11. Evidence that the client has looked for alternative work as result of losing a job following an accident can be useful.
Who caused the accident
12. In some cases it is unclear whose responsibility the accident was. For example, there could be a question about who owns a pavement where the client tripped over.
In Jersey, West's Centre was a good example of problems over ownership with over forty companies and individuals having joint responsibility for it's upkeep. It is now in the ownership of Parish of St Helier.
13. If the responsibility lies with an employer, friend or relation of the client, it is sometimes uncomfortable for the client to make a claim. The adviser should reassure the client that most claims are covered by insurance through employer's liability or motor third party insurance.
14. In some cases the client may have been partly responsible for the accident. This is called contributory negligence and will be taken into account if a claim comes to court. The client should be careful what s/he says to the other party.
15. If the driver of the vehicle which caused the injury is unknown see para 32.
16. If the client has suffered psychological or other injury as a result of a car accident, indirectly, and the driver was uninsured see para 32.
17. If the client's accident happened abroad, s/he will have to claim under the law of the country where the accident happened. An exception is if the accident was caused by someone who lives in the United Kingdom, in which case the client could claim under United Kingdom law. Claims under foreign law made from the United Kingdom can be time-consuming, expensive and difficult. The client will need a solicitor who is experienced in taking personal injury actions in different countries. It may be easier for the client to claim on an insurance policy if s/he has one.
18. If the client suffered injury or loss while on a package holiday abroad, s/he can usually claim against the tour operator.
19. There is a three year time limit within which a client must begin legal action to claim compensation for a personal injury. There should be no delay, therefore, in the client seeking legal advice if legal action is contemplated. There are some conditions under which the time limit can be extended, but the client's legal adviser could advise on these.
20. The time limits start to run from the date the client was injured, or from the date when the injured person knew that her/his injuries, disease or illness were caused by someone else's negligence.
Have other people been injured
21. If it becomes clear that others have been affected by the same accident or shared circumstances it may be better for the client to join with other affected people in a multi-party action. It may be possible for someone, not a direct victim, but who has suffered as result of an accident to claim compensation.
22. If this may be the case the adviser should try to find out who may be co-ordinating the action.
What action has the client already taken
23. It is important to find out what action the client has already taken, and decide what still needs to be done. For example, s/he may already have:
Reporting the incident to the police
24. If the Honorary or States Police have dealt with the incident, there should be a report which can be obtained by the client's legal adviser. It is useful for the client to note the name or number of the police officer who dealt with the matter.
25. If there are to be criminal proceedings in the case. civil action should await the outcome because the evidence and verdict can be helpful to the plaintiff's case.
26. In some cases the client may not wish to make a complaint to the Police, for example if the injury was caused by a friend or colleague who the client does not want to see prosecuted. The adviser can point out that if the client wishes to make a claim the case is likely to be stronger with police evidence.
27. If the client wishes to claim from the Criminal Injuries Compensation Board, a police report will be essential. See 7.37.1 for more details.
28. If the client claims the injury was caused by the police, s/he may wish to register a formal complaint, see para 47, and seek legal aid.
NB: If the accident has been caused by an uninsured driver, the victim should report the matter to the police within fourteen days of the incident, or as soon as is reasonable.
Reporting the incident to an insurance company
29. It is usually a condition of any insurance policy that material facts be disclosed to the company. for example, in road traffic accidents, most policies require that the insured person notifies the insurance company of any accident involving the insured vehicle, regardless of whose fault the accident was. Failing to notify may allow the insurance company to cancel, or avoid paying out on, the policy.
30. If the client has not already reported an accident to her/his insurance company, the bureau should help her/him check the policy. Unless all losses are covered by the client's own insurance, a claim against the other party will be needed. Even if most of the client's losses are covered, for example, by a comprehensive insurance policy, s/he will need to claim against the other party to recover the value of the loss of her/his no claim bonus and/or any excess.
31. If the other party is insured, for example, in a road traffic accident, the client may wish to contact the other party's insurance company. Normally, it is sufficient to ask the other party to pass on details of a claim to their insurers, but if they do not do this, it may be helpful to report the accident directly to the insurers (but see para 32). However, most insurers will not negotiate until they receive a claim form from their own clients.
32. If the driver is uninsured, the client will not be able to contact an insurance company, and, if s/he needs compensation, must make a claim against the driver. However, if the driver's insurance policy does not cover her/him because, for example, s/he was in breach of the terms of the policy, the client's claim should nevertheless be made against the driver's insurance company.
Reporting the incident to the party whom the client thinks is responsible
33. If the client has not already reported the matter to the other party it is usually wise to wait until the client has decided on the course of action s/he wishes to take. Legal action may be jeopardised by disclosing sensitive information, for example, a loose paving stone could be repaired before details of the evidence were recorded.
34. If the client has reported the matter, a copy of any letter, or record of a phone conversation could be very helpful before legal action.
Reporting accidents at work
35. Accidents at work should always be reported to the employer, and recorded in the accident book. If there is no accident book, the client should write down brief details of the accident sending it to the employer, keeping a copy.
36. If there is an injury at work, the employer may decide to notify the Health & Safety Inspectorate at the Social Security Department who will investigate and write a report. There is no legal requirement to report accidents at wordk. If the client is not contacted by the department's officers, s/he should report the accident to the officers her/himself.
37. The adviser should make sure the client is claiming sick pay or incapacity benefit where appropriate.
38. Anyone involved in accidents other than road traffic accidents should contact the Health & Safety Inspectorate who have an interest in a wide range of hazardous situations. They will investigate where appropriate and can bring prosecutions under the Health and Safety At Work (Jersey) Law, 1989. The outcome of such a case could be very helpful in deciding whether to bring a claim for compensation. His telephone number is 447300.
Reporting the injury to a doctor
39. The client may already have visited the hospital following an accident and been treated as an in or an out-patient. In these circumstances there will be case notes available to the client's legal adviser should legal action be planned.
40. If the client's injury has developed in other circumstances, for example, as a result of workplace conditions, s/he may have visited her/his GP for treatment. It is important that the full extent of the client's injury is investigated, and any changes over a period of time logged.
Has the client seen a legal adviser
41. The client may have already sought legal advice and not have understood the advice. In this case, the adviser could, with the client's permission, contact the lawyer to seek clarification.
42. The client may have been told by her/his lawyer that s/he does not have a good enough case and be unhappy with this advice. If the lawyer was appointed on Legal Aid, the Acting Batonnier could be asked to offer another opinion. Or the client could seek a second legal opinion at her/his own expense, seeking a lawyer experienced in the field (advice from the Acting Batonnier).
What are the client's financial circumstances
43. If the client is in financial difficulties as a result of the injury it is important to try to maximise any income and claim any contributory or non-contributory benefits
44. If the client has a strong legal case for compensation it may be possible to claim interim compensation from the other party whilst the legal action is being pursued and before the final amount is settled. See also para 68.
What outcome does the client want
45. The adviser should discuss with the client what outcome s/he wants. Possible outcomes are:
46. Some clients may not come to the bureau seeking a financial claim for injury, but wanting an explanation of what went wrong, an apology or recognition that a wrong has been done. Perhaps the client would like to see the prosecution of the wrong-doer, or an assurance that the same thing could not happen again. Sometimes the best way to achieve these is to start legal action for compensation.
48. Compensation for an injury may be claimed by civil court action, or in some circumstances, by applying to the Criminal Injuries Compensation Board (see 7.37.1)
49. It may also be possible for the client to receive acceptable compensation by making a formal claim in writing to the person or body responsible for the injury. This should be done "Without prejudice", stating how the claimed amount has been arrived at, eg loss of earnings, damages to clothing etc.
50. The responsible party may use the claim letter to establish an insurance claim, if there is a suitable policy.
Taking legal action for compensation
Deciding whether to take legal action
51. Even if the client believes that s/he has a strong case, it will not always be appropriate or possible for her/him to take legal action. For example:
Choosing a lawyer
52. If the client is applying for legal aid it is to be hoped that the Acting Batonnier would pass the case to a lawyer experienced in this field. This may not always happen, however.
53. If the client has some means, it would be advisable to take legal advice from several law firms as to who might take the case. There is a list of specialist lawyers in personal injury litigation at 4.2.2. A number of law firms will provide a free consultation to assess the case.
54.The CAB offer a free, Personal Injury Clinic on the last Thursday of each month between 12.00 and 14.00. Clients are seen by appointment only. For more information telephone 08007350249
Paying for legal action
56. Recently it has been the case that lawyers winning less than £3,000 compensation for their clients have not had their costs included in the award, leaving the client to find the legal fee out of their compensation. It is now most important that clients are advised of this.
57. Some insurance policies offer their holders legal protection cover, particularly in the case of motoring insurance. It is important to ask the client whether they have such cover which would underwrite the cost of legal action up to a certain predetermined figure.
58. If the client's accident happened at work and s/he is a member of a trade union, the union may undertake the legal action on their member's behalf.
59. If the client cannot get help with the cost of legal action and does not have an extremely strong case, a lawyer may advise her/him not to take legal action. This is because, if the client loses, s/he will be liable for the costs of her/his own legal advisers and, usually, the costs of the other party.
The Bureau should not advise a client to take her/his own case in these circumstances because of the costs they may incur.
The amount of compensation
60. There are two types of compensation that a client may claim, general damages (see para 66) and special damages (see para 68)
61. General damages are paid to compensate the client's injury and are usually the major part of any award. They can include a sum to compensate for the clients:
62. The award of general damages is decided by the Court after hearing all the evidence in the case, using a tariff system called 'Kemp and Kemp'. Awards are tailored to each case including variable factors such as risk of onset of degenerative osteo-arthritic conditions.
63. Settlement usually takes a long time, but it may be possible to claim interim payments after the case has been heard, but before final assessment. It is important for final assessments to be made at the right time because damages are assessed once and for all, and cannot be reviewed later. If the action is brought too early it is possible that medical complication may not yet have appeared.
The adviser should not give advice about the amount of general damages which may be awarded
64. Special damages are paid to the client to compensate her/him for actual financial loss that the injury has caused up until the date of the hearing. These amounts must be specified by the client when first making the claim and the Court will decide what is reasonable. The client's lawyer will help the client to decide what to claim as special damages. (See para 8 for financial losses which can be included in a special damages claim).
Settling a case
65. In most cases the other party will attempt to settle before the case gets to Court. There are many factors to take into account before settling, and the client should be warned that not accepting a smaller sum offered Out of Court might result in the case being heard and the client having to pay legal costs from a settlement not much larger than the offer. It is generally not possible for the bureau adviser to give an opinion on an Out of Court settlement.
Without prejudice correspondence
66. Lawyers acting for the other side may send without prejudice correspondence to the client or her/his lawyer. A without prejudice letter, which contains an offer of financial compensation, in the context of genuine negotiations, cannot be used as evidence as an admission of liability. If the client does not accept the offer, the without prejudice letter would not be brought to the attention of the Court. If, however, the client does accept a without prejudice offer, this is a binding contract between the parties. If the other side then refuses to honour it, it can be brought to the attention of the Court for enforcement.
Support and counselling
.Unliquidated claims - where no specific figure has been decided
Liquidated claims - for a fixed amount