There is often concern and confusion regarding compensation for personal injury claims. How is compensation negotiated? Is there guidance for both general damages and special damages? How long should you wait for your compensation once it has been agreed? We will now take a look at the numerous issues surrounding personal injury compensation, attempting to clear up any confusion.
Is there a time limit for lodging my claim for compensation?
There is a time limit for lodging claims for compensation. As the vast majority of injuries are diagnosed on the same day as the accident, the three-year time limit tends to start on the date of the incident. However, there are some exceptions.
For those who later develop injuries/medical conditions, as a consequence of an incident caused by negligence, the diagnosis date could be some time down the line. If for example we look at asbestosis, this can take up to 20 or even 30 years to develop after exposure to asbestos. So, in this scenario, day one of the three-year time limit would be the date of diagnosis by a doctor. There may also be other issues such as for example concussion, which might be diagnosed some days after an accident. This gives you an idea of how the system works.
There is one additional exception. If the victim is under 18 years of age then a litigation friend can pursue compensation on their behalf, or they can wait until they are 18. If they wait until their 18th birthday this would be day one of the three-year time limit.
How do I work out my compensation claim?
In theory it may look fairly easy to work out a compensation claim. In practice it can be very different!
There are many issues to take into consideration, such as general damages and special damages – we will cover these later in this article. Once a claim for compensation has been agreed by the defendant, there is no going back and making additional claims further down the line. As a consequence, this is one of the many reasons why victims of negligence prefer to use personal injury claims companies. These companies have deep-seated experience regarding personal injury claims and negotiating the best rates of compensation.
It is important to note, you are quite entitled to pursue a personal injury claim in your own right without additional third-party assistance. Whether you would have the necessary experience to maximise compensation package, is certainly food for thought.
How can I negotiate the best compensation package?
If your claim for negligence is accepted, the next stage is to seek the best compensation package. This may involve an out-of-court settlement with the defendant, or the package may be agreed by the courts. There are two issues to consider here:-
- Experience in negotiating
Personal injury claims companies have significant experience in this area. They know how to negotiate a fair compensation package, which will often mean going toe to toe with a defendant’s legal counsel. If you are pursuing compensation in your own right, it can be intimidating and daunting when faced with a legal team across the table.
- Presenting evidence to the courts
The UK legal system is full of technical intricacies, which are not always common knowledge. The way you present your evidence, the timing of the presentation and the need to abide by legal timetables/frameworks is vital. Even the strongest of personal injury claims can fall by the wayside, if not all legal boxes are ticked and evidence presented in the “right” way.
Do I need to use a personal injury claims solicitor?
As we touched on above, every claimant has the opportunity to pursue their own case. Many choose to do this in conjunction with their personal injury claims solicitor, although this is not a legal necessity. You tend to find that personal injury claims solicitors will offer a “no win, no fee” arrangement, if they believe you have a good chance of success. This effectively indemnifies you from any costs incurred by the solicitor, when pursuing your case. Nothing is guaranteed in the world of legal practice, with claims that appear very strong on the surface, not always successful.
When pursuing your case under a “no-win, no fee” arrangement, the solicitor will discuss what is known as a success fee. This is an agreement between the two parties, guaranteeing the solicitor a percentage of any compensation awarded. Traditionally this figure is around 25% although it can vary from case to case.
Can I negotiate compensation claims myself?
You are well within your rights to pursue your own claim without the assistance of any third party. It may be challenging, it may well be costly but some individuals do choose to go down this route.
What are general damages?
When you dig a little deeper into personal injury compensation, part of tort law, you will come across general damages and special damages. General damages relate to “pain and suffering and loss of amenity” which pretty much speaks for itself. You will find that general damages are based upon Judicial College guidelines which specify an array of different injuries (of varying severity). Your personal injury solicitor will be able to advise you of the guidance when clarifying your compensation claim. As a rule of thumb, general damages are limited to the guidance – the list is updated on a regular basis.
General damages in isolation can be confusing for claimants. An instant fatality, which many of us assume would attract the ultimate compensation claim, might attract relatively low levels of general damages. This is because of a perceived lack of “pain and suffering” although it could lead to a significant special damages claim. It is important to look at both general damages and special damages together, not in isolation.
What are special damages?
Special damages relate to financial recompense for costs incurred so far, ongoing costs and future costs relating to the injury. The following list will give you an idea of costs covered, although it is by no means exclusive:-
- Loss of earnings
- Loss of future earnings
- Medical expenses
- Care assistants
- Rehab costs
- Replacement of damaged property
- Property alterations
- Travel expenses
- Financial loss for dependents
Looking at the subject of fatality, this may result in a relatively low general damages claim but a relatively high loss of future earnings claim. The above will give you an idea of the type of expenses which come under the special damages banner. Unlike general damages, there is no limitation on the level of special damages you could claim.
Can I request an interim payment?
Unfortunately, many compensation claims may take years to work through the system. Medical negligence is an area which tends to be relatively slow moving. Very often negligence will be accepted by the defendant, and it’s just a matter of agreeing the level of compensation. Sometimes these negotiations can drag on, especially if additional evidence is required. During this process you may find that the claimant is facing financial distress, due to ongoing costs related to the injury. So, it is only fair to request an interim payment, where negligence has been admitted, while the finer details of the compensation package are agreed.
An interim payment can be negotiated directly with the defendant’s representatives, or through the courts. When the overall package is agreed, the interim payment would be deducted from the final figure. Where there are significant ongoing expenses, you tend to find that the courts are relatively appreciative of the claimant’s financial challenges.
What happens if I don’t receive the agreed compensation?
Whether your compensation package was agreed out-of-court, or part of court ruling, it is legally binding. If the compensation has not been received within the agreed timescale, your first port of call should be the defendants representatives. Failure to provide adequate guarantees/reasons for the delay will likely mean a visit to the courts. It is the same scenario with a court settlement. If it isn’t received, you may have to go back to court. It is not a case of renegotiating compensation, but simply a case of abiding by a legal agreement.
Summary
Perhaps one of the more common misunderstandings regarding compensation packages is the cumulative impact of general damages and special damages. At first glance, it is difficult to understand how payments are relatively modest when it comes to fairly quick fatalities. The reason is simple, general damages relate to pain and suffering, which could be “limited” in the event of a quick death, where perhaps the claimant failed to regain consciousness. However, the overall package would be bolstered by the impact of special damages, which among others, will take into account loss of earnings.
The vast majority of personal injury compensation claims will be negotiated out of court. Where negligence is obvious, and has been accepted, it makes no sense for both parties to accumulate additional legal costs. Only a relatively small number of personal injury claims will go before the courts.
