I hope that this blog will be a useful source of information to anyone who has been unfortunate enough to be involved in a road traffic accident.
As the title suggests, I go right back to basics and explain:
- the role of the solicitor
- the obstacles to be overcome in bringing a claim
- the way a claim is quantified (valued) and
- who pays the solicitor’s bill.
This is a very broad-brush summary. There will always be exceptions and this blog cannot replace getting sound advice about your claim from a solicitor who specialises in road traffic injury claims.
Personal Injury Claims
They fit within the “civil law” and, more particularly, the law relating to negligence – essentially where an individual (a Claimant) claims against another individual/s or perhaps a company (a Defendant).
In most Road Traffic Collision (RTC) cases, damages are paid by the motor insurer of the responsible party (Defendant). If the Defendant is not insured (or is untraced), then the Motor Insurers’ Bureau (MIB) will often step in to deal as if the Defendant was insured.
Blame or Fault (Liability)
To bring a claim for injury a Claimant must prove fault or blame (liability) on the part of another. That blame can be full or part. Unlike criminal law where an individual is guilty or not guilty, parties to an injury claim can share liability – e.g. contributing to the crash by driving too fast or contributing to their injuries by not wearing a seatbelt. If liability is split between the parties, the Claimant’s damages are typically reduced by the amount that they are found to blame. This is called “contributory negligence”.
Establishing liability or fault in a road traffic collision can be achieved through CCTV or dashcam footage, witness evidence, photographs and physical evidence at the scene or accident damage.
Valuing a Claim (Quantum)
Settlement of an injury claims is (in most cases not involving children) a full and final settlement. Once settled, it cannot be re-opened later on. It is, therefore, crucial that your solicitor understands the long term effect of your injuries and the future losses and expenses that could be suffered or incurred because of them.
Even if liability is admitted, it remains the Claimant’s duty to prove the nature and extent of their injuries and their losses.
A personal injury claim is essentially divided into two parts:
- Injury damages – compensation for pain, suffering and loss of amenity
- Losses and expenses – suffered as a result of the crash (both past and, potentially, future losses)
You solicitor will seek independent medical evidence about your injuries from a medical expert who produces a medico-legal report. Different medical experts are selected for different types of injures and there can be multiple experts (e.g. GPs, orthopaedic consultants, plastic surgeons and psychologists).
Once medical evidence is finalised, the Judicial College Guidelines are most commonly used to value an injury claim. Only one award is made – even for multiple injuries. Your solicitor will guide you as to the appropriate value of your injury claim.
Losses and Expenses
This can encompass any losses or expenses reasonably incurred as a result of an accident including losses linked to vehicle damage and injuries (e.g. vehicle insurance excess, travel expenses, treatment and medication costs, loss of earnings and care). Your solicitor will be required to prepare a list or schedule of your loses and expenses and, where possible, prove those losses with receipts or invoices, etc.
Rehabilitation and Interim Payments
From the outset and during the life of the claim the parties should consider the Claimant’s rehabilitation needs. This might include simple private physiotherapy treatment – through to a full needs assessment including accommodation, care and treatment. If agreed, a rehabilitation package can be put in place and directly funded by the paying insurer.
Alternatively, rehabilitation and any other proved losses (e.g. lost earnings) can be funded through the provision of interim payments made by the paying insurers throughout the case.
Your solicitor will advise you as to the overall value of your claim. The medical evidence and the schedule of losses are disclosed to the paying insurer and offers are invited. Both parties can make formal offers to settle the case.
Whilst you solicitor needs to prepare your case as though it will, one day, be determined at court, the vast majority of claims are settled by negotiation and without the need to commence any court proceedings. Even where court proceedings are commenced, most cases still settle without the need for a final trial at court.
The usual rule is that the losing party pays the winning party’s costs. In many cases the costs that your solicitor can claim are fixed by reference to the value of the claim and/or the procedural point at which it settled.
Your solicitor is under a duty to give you best advice as to what they charge and how to protect yourself from the risk of paying any costs. In many RTC cases there is Legal Expenses Insurance (LEI) in place already (attached to the claimant’s motor policy) which covers legal costs and the risk of losing.
If there is no LEI, then most cases are funded under the terms of a Conditional Fee Agreement (CFA – also known as a no win/no fee agreement). You will need to be carefully advised about the terms of any agreement – but, in most cases, the maximum “success fee” that can be claimed by a solicitor from their client is 25% of their damages (injury damages and past losses only).
I hope this gives some insight into the world of RTC injury claims.
No claims are the same and you should always seek the skilled advice of a solicitor specialising in these types of claim, and I would urge you to seek out your nearest MASS member firm and ask them to give you further guidance on how they may be able to support you in a claim.