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".
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.