Will I win?
If you have suffered an injury, it can be hard to know what to do next, and whether you might have a good compensation claim. One of the first questions many people ask when they see a solicitor is, will I win?
There are two sides to any injury claim, liability and quantum. Liability is the question of whether someone has broken the law and caused some injury or loss. Quantum is the issue of the amount of damage done, and the amount of compensation payable as a result.
These are two separate issues. Where someone has caused an accident not just by being a bit careless but by being completely reckless, they will not normally have to pay more compensation as punishment. The amount of the compensation depends on the damage that has been done, not on how much to blame the defendant has been.
Likewise, the fact that an accident has caused a very serious injury or a huge financial loss does not mean your opponent is any more likely to be found to blame for your accident than if the damage had been much smaller.
On this page we will outline what needs to be proved to win a case, and the stages a case will go through.
Liability - Winning Cases
In personal injury cases, liability is the question of who was to blame for an accident. Sometimes it is obvious, for example if a car goes through a red light or if someone is injured because of a colleague's mistake at work. Other times it is less clear. A defendant might disagree with what you say about what happened, or they might dispute that what happened broke the law.
In many cases a defendant's insurance company will admit liability from the start of the case. That means you only need to prove the damage done by the accident. If they don't admit it, we will need to provide evidence of what happened. In personal injury cases, claims need to be proved on the "balance of probabilities", rather than "beyond reasonable doubt", which is the standard in criminal cases. This means the evidence needs to convince a judge that it is more likely than not, or at least 51% likely, that the defendant was legally to blame.
Many cases are based on negligence. This is a common sense standard of the behaviour expected of people in different situations, where it is foreseeable that if they don't behave sensibly they might cause harm to someone else. Most road accident cases are based on negligence, where judges usually take the view that because cars and other vehicles can cause a lot of damage, drivers should drive carefully at all times.
Other cases are based on breach of specific laws such as acts of parliament or health and safety regulations. Many accident at work cases involve at least some consideration of health and safety regulations, which make the employer responsible for ensuring the workplace is a safe as possible. Other laws include the Occupiers Liability Acts and Defective Premises Act, which cover accidents suffered by visitors to premises or by tenants, and the Animals Act which can be relevant to injuries caused by animals.
Evidence to support a case often comes in the form of witness evidence. Don't underestimate the importance of your own evidence as a witness to what happened. In fact you are likely to be the person who knows most about what happened, and many cases are successful even if there are no "independent" witnesses. It can be helpful to have witnesses who either saw what happened, know what happened after the accident - for example, what was said or reported about what happened - or who can comment on the problem more generally, such as whether a safety issue at work had been present for a while before the accident, or whether a similar accident has happened before.
Even if there are no witnesses, other evidence can show what went wrong. In road accidents the damage done to the vehicles or any marks on the road can show a lot. In workplace accidents there are often records to show things like what training was given to people, how tools and equipment were used and maintained, and what was reported to the Health and Safety Executive after the accident. Maintenance and inspection records are important in claims involving trips and falls on pavements and in premises like shops.
You should also remember that even if you have been partly to blame for what happened, that does not mean nobody else was. If an accident is partly your fault and partly someone else's, you would still win your case, but your damages would be reduced by whatever percentage you are found to be to blame for your own injuries. This is known as "contributory negligence".
Medical Evidence and Compensation for Injuries
As well as showing that your opponent caused your accident, we must also show that the accident caused some injury. This means we need to get a medical report.
We arrange the medical report for you. It will be from a doctor who has not treated you, so that they are independent and can assess the case with a fresh pair of eyes. They will see you, talk to you about the accident and how it has affected you, and if necessary they may conduct a physical examination or perform tests. They usually will have been sent a copy of your medical records so they can see the treatment you have had and your medical history, although in straightforward cases this may not be necessary. The type of doctor you see depends on the type of injury you have suffered, and you may need to see more than one doctor if you have a number of different injuries.
In most cases you will only need to see a doctor appointed by us. However, in more serious or complex cases your opponent's insurers may ask you to see their own choice of doctor for a second opinion. If that happens, our and their doctor will usually then discuss your case and do a joint statement summarising their views, including the points on which they agree and those on which they disagree, to help the court narrow down the issues in your case.
The medical evidence is the basis for valuing your claim. It summarises the injuries you have suffered, suggests what losses might arise from the injuries - for example, time off work or any necessary medical treatment - and how long your recovery might take, if it has not already happened.
It also looks at what difference the accident has made to you. Your are entitled to be compensated for the damage done by your accident, whether that is the pain and inconvenience of the injuries, or the financial effects such as lost earnings. If you have had a completely new injury that is usually fairly straightforward.
However, the medical evidence might identify that your accident has made a condition worse that you already had, or meant that you have suffered, for example, a bad back or bad knee a number of years early, but that you would have suffered the problem sooner or later anyway. It might also identify some other relevant medical issue. For example, your injury may have meant you have had to stop work, but some other health condition could have made you stop working at some stage, even without the accident. In those cases, your compensation is only for how much worse the accident has made things for you.
Your claim will include an amount of compensation to say sorry for the injuries caused. There is no logical reason why a particular injury is worth a particular amount of money. However, so that compensation is fair from case to case, damages for injuries are assessed by looking at past court cases where other people have been awarded money for similar injuries. This means that two people with the same injury and where the injury has had a similar impact on their lives should be awarded more or less the same amount of money.
Financial losses caused by an accident can often be the most important part of a personal injury claim. Certainly when you hear about large compensation settlements in the news, the great majority of the money will be for past and future financial losses and expenses. Even in lower value claims, many people would struggle if they were unable to work for more than a few weeks, so compensation for financial losses can be very important.
In general terms compensation seeks, so far as money can, to put you back into the position you would have been in had the accident never happened. It can include both money lost so far, and the money it is likely you will lose in the future. Typical examples include:
Loss of earnings
Loss of pension
Damage to property
The cost or value of care and assistance
Loss of earnings is assessed by considering what you would have earned had the accident never happened, and what you actually have earned or will earn now. The difference is the loss. This can be straightforward, for example where someone is always paid the same and loses pay for a few days or a few weeks. However, it can include more complex matters like pay rises, promotions, bonuses and loss of self-employed income. We have access to good statistical data to allow us to make very good estimates of future income in cases where the loss may be a permanent or long-term loss of earnings.
Pension loss can also be considered. That might be the loss of employers' contributions and tax relief on your contributions, loss of the value of the growth of your pension fund, or reduction in your entitlement to a final salary pension.
Medical costs can include simple things like the cost of painkillers or physiotherapy treatment, or it could take on recommendations in the medical evidence for more complex treatment like surgery or psychiatric treatment.
A care and assistance claim can also be simple or quite complex, depending on the severity of the injuries. When someone suffers an injury, they will often be unable to look after themselves for at least a short time. For example a family member or friend may need to do jobs for them, such as shopping, gardening or laundry. They may need some "nursing" care, such as dressing or washing, or may need to be driven to appointments. Most of the time the relative or friend won't be paid, they will do it for free. However, the court will allow the injured person to make a claim on their behalf for the value of their time.
If instead of relying on family or friends, the injured person pays a professional, for example a gardener, a dog walker or a home help, they can claim this cost back as part of their damages, provided it was something that was made necessary by the accident. If, for example, you used a gardener anyway, you can't claim the cost unless you had to use the gardener more and pay more because of your injuries.
In very serious cases, this professional care can be invaluable in helping someone return to some sort of normality, or even just to cope with day-to-day life. Where people suffer harm such as brain injuries or spinal injuries, it can be unrealistic - and quite often damaging to relationships - to expect family to cover everything. Such cases very often benefit from a qualified case manager to co-ordinate the support for the accident victim, and to arrange help such as nursing care, therapies, adapted accommodation, adapted vehicles or support with employment or social and leisure activities.
What Happens During a Case?
Although every case is different, most will go through similar stages in order to show that the defendant is responsible for your accident, and how much compensation is appropriate. The exceptions are claims to the Criminal Injuries Compensation Authority for injuries suffered in violent crimes, and to the Motor Insurers' Bureau for claims against untraced hit and run drivers, where the body handling the claim does more of the investigation work.
The case starts when we send details of the case to the defendant and/or their insurers, setting out what has happened and why we hold the defendant to blame. The insurers then have a certain period of time to investigate and get the defendant's side of the story. If they accept the defendant was to blame they will admit liability and the case moves on to the assessment of the injuries and losses. If they dispute it they should say why, so we know what evidence we need to get and what we need to prove.
We then obtain our medical evidence and details of your financial losses along with evidence in support, such as receipts and pay slips etc, so we can value the claim. If the medical evidence is more complicated, and for example the medical expert recommends treatment followed by another report, or that there is a need for a report from a different expert, this can take more time.
In cases of serious or complex injuries, the medical evidence can take quite a long time to finalise. We may also need experts' reports on details such as the need for nursing care, your employment prospects, or on your pension entitlement. Defendants can be asked to pay "interim payments" towards your eventual damages settlement, which can be very helpful especially if the medical evidence will take some time, or if there is an immediate financial cost to be met.
Once all of this evidence is in place, we can value the claim. The defendant's insurers will be able to do the same, and hopefully there is agreement on the overall valuation of the compensation and a settlement can be agreed out of court. What underlies everything is the parties' assessment of what a judge would be likely to say if the case went to trial. It can be necessary to start court proceedings, either to meet the relevant time limit for starting proceedings after an accident, or to show the defendant's insurers that you are prepared to go to trial if necessary. However, most injury claims settle sooner or later, and only a very small percentage are decided by a judge.
In some cases, such as cases on behalf of children or on behalf of people who lack mental capacity to conduct legal proceedings (either because of their injuries, or for other reasons), any settlement must be approved by the court. This is because the injured person has no legal say in whether they agree the settlement, so the judge is asked to approve the settlement to make sure it is enough. Often in those cases the injured person is also unable to look after their own money, especially if it is a large amount, so the judge will also want to ensure it is invested securely for them either in a trust fund or in the Court Funds Office, to minimise the chances of the money being misused or taken by someone else.