One important step in a personal injury compensation claim is establishing who was at fault, or ‘liable’, for what has happened and to what degree.
Personal injury cases are typically brought on the basis that there has been a tortious act (usually negligence), a breach of a statutory duty, or a combination of the two.
Contributory negligence is a defence to a claim that may be raised by the Defendant. It applies to cases where the injured person may have, through their own negligence, contributed to the harm that they have suffered. For example, in a case where a pedestrian crosses a road, when it is unsafe to do so, and is subsequently hit by a negligent driver.
In this instance, damages are calculated as if the injured party was entirely blameless. The amount is then reduced according to the percentage of contributory negligence (if any).
For example, if damages are calculated at £100,000, and the injured person was deemed to have been 10% responsible, they would ultimately receive £90,000 in compensation (90% of £100,000).
Another common situation is where an injured person was not wearing a seatbelt in a car. People often incorrectly assume that they are not eligible to claim for compensation in these circumstances, but this is not the case. You are able to claim, but the principle of contributory negligence, as above, may apply.
With serious injury cases, establishing the apportionment of liability between the parties is critical. Even small changes in percentages can have a significant overall effect when the damages are substantial. A difference of 5% to damages of £5,000 will mean a reduction in compensation of £250. However, that same 5% applied to damages totalling £5,000,000 would mean a reduction of £250,000.
Expert liability analysis
We place a special emphasis on the importance of establishing the best possible liability outcome for our clients. We instruct the foremost liability experts in the country, who will help us to fight for every percent, for exactly this reason.
In addition, we conduct regular meetings, whereby several solicitors discuss and analyse the case. This is beneficial as each participant can bring their experience to examine all available angles in trying to achieve the best possible result.
This careful analysis has allowed us to take on and win cases rejected by other firms because we have explored and considered the case from angles that others may not have considered.
Connecting the accident to the injuries sustained
Establishing what is known as ‘causation’ is the second major step in a personal injury claim. In simple terms, once it has been proven that the Defendant was negligent (i.e. responsible to some degree for the accident), it must then be proven that the negligence was responsible for the resulting injuries.
A very simple example would be if a person with a pre-existing condition, sustained a back injury in a car accident. Due to the pre-existing condition, they would have developed back problems in the future regardless of the accident. We must therefore establish the extent that the accident contributed to the symptoms.
In this type of situation, it is crucial to have a serious injury lawyer who has a thorough understanding of often-complicated medical issues. If the lawyer does not have solid grasp of the medical issues they may struggle to obtain the correct amount of compensation on behalf of their client when there are issues of causation.
Establishing the compensation value
Another main aspect of a personal injury claim is establishing the compensation value. This is known as ‘quantum’.
A solicitor will establish the value of a claim by liaising with medical (and other) professionals. They will explain exactly what loss and expense the injured person has incurred and will detail what they are likely to incur in the future.
Typically, we will then create a ‘Schedule of Loss’, setting out the past and future claim in detail.
Complexity of a serious injury
In cases involving minor injuries, the Schedule of Loss is often relatively straightforward and obvious. In a serious injury case, however, it is significantly more complicated. This is because there are indirect knock-on effects that must also be considered.
One example would be that a person with a serious spinal injury might wish to go on holiday once a year. In order to do this, they will need to book extra seats on the flight, both for themselves and for the carers who will accompany them. They may also have other specific transportation and accommodation needs. All of these additional costs must be calculated to a fine level of detail.
If any of these less obvious elements are overlooked, the level of compensation could be lower than it otherwise should have been. With the example above, the injured person would either not be able to go on holiday, or would have to utilise funds intended for other purposes.
It is the ability to look beyond the obvious, and to go into this level of detail for every element of the injured person’s life, both current and future, that distinguishes a serious injury lawyer from a personal injury ‘specialist’.
There is no set time period for a serious injury case to reach its conclusion. Due to their complex nature, serious injury cases may take years rather than months to be finalised and it is important not to rush to settlement. Medical and other professionals will need time to fully assess the impact and consequences of a serious injury.
If a case is settled too quickly, unforeseen future consequences of an injury may not be taken into account, and this could result in a reduced compensation award. However, in appropriate circumstances, we can obtain significant interim payments throughout the lifetime of the case, thereby securing financial support for clients whilst the case is in progress.
We recognise that the conclusion of a case often represents a major step for our clients. When all the appropriate evidence has been gathered, and the case can be presented in a comprehensive manner, we endeavour to conclude matters and secure the maximum compensation as quickly as possible.