We will no doubt all be aware of the increase in personal injury claims over the past few years. In fact, since 1995 when the no win no fee system replaced legal aid, a vast number of individuals with valid claims have been able to put forward their cases without first having to have their claim assessed and scrutinised by an independent regulator.

Before the no win no fee system was introduced many individuals would have lost out on their right to compensation simply because their claims didn’t pass the assessment. Whilst this system worked for those with fraudulent claims it certainly didn’t instil much faith in those with genuine cases.

These days the no win no fee system enables the solicitor acting on behalf of the claimant to go through all the evidence themselves and honestly assess whether the claim is worth pursuing.

Because the solicitor doesn’t get paid for their services if the case is unsuccessful they need to ensure that the case is valid, strong and likely to get a good result for both their own and their client’s sakes.

In this article we will take a look at some of the more unusual personal injury claims of recent times and we begin with the somewhat disturbing subject of medical negligence.

Medical Negligence Claims

Mrs. L, 45, underwent what she had expected to be a fairly straight forward hysterectomy operation at an Oxfordshire hospital. Unfortunately, during the operation, Mrs. L’s bowel was seriously damaged by the surgeon.

This damage resulted in Mrs. L being left with a permanent colostomy. The affects of the bodged operation had a vast impact on Mrs. L’s life and she decided to put in a claim for personal injury. Mrs. L was awarded £175,000 by the hospital in question and although this award won’t alter the fact that her life has been changed forever it should help to make it a little more comfortable.

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Mrs. S, 45, underwent what she believed was an ulna nerve release operation on her right arm at Swindon’s Great Western Hospital. It was later discovered that the operation performed was actually a tennis elbow release.

Mrs. S has to undergo the correct procedure four months later which resulted in her having to take a significant amount of time off work. Mrs. S subsequently experienced a lessening of the strength in her right elbow and is no longer able to do many of the things she once could.

Although Mrs. S did manage to return to work it is doubtful that her condition will ever improve. Mrs. S received £55,000 in compensation.

Personal Injury Claims Involving Minors

12 year old Sam was playing on a rope ladder whilst enjoying a day out with his family at Butlins. Unfortunately the rope ladder broke and Sam suffered a soft tissue injury to his left shoulder.

It took over a year and a half for Sam to fully recover from his injured shoulder and he was awarded £3,500 in compensation.

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Whilst on her way to school one morning 14 year old Lucy was knocked over by a transport bus while trying to cross the road on a pedestrian crossing. The impact caused Lucy to be thrown against a lamppost and she suffered several serious injuries including damage to her left kidney and a fracture to her left clavicle.

Lucy was subsequently rushed to hospital where she remained for ten days whilst surgery was performed on her kidney. The bus company’s insurer attempted to deny liability but when they were issued with a copy of the police accident report they quickly changed their tune and offered Lucy £10,000.

However, due to the extent of Lucy’s injuries and the trauma that both she and her parents had been put through the offer was rejected and court proceedings were set in motion.

Lucy was subsequently awarded £25,000 for her pain and suffering and her loss of amenity and her parents were awarded £4,250 for their loss of earnings.

Car accidents or road traffic accidents are a very common feature of the every-day commute. Even with more stringent rules of the road and advanced technology used in making new cars, they still occur on a daily basis and kill or injure about 250,000 people a year in the UK alone.

What to do if an accident occurs?

If you are involved in a car accident regardless of whose fault it was, there is certain information you should try to obtain in order to help the insurance company to assess the situation. If you are unable to collect the information there and then (you might be in shock or injured), you should try to obtain it at a later stage by going back to the scene of the accident as soon as you are able to and making some detailed notes. Information required:

• Date and time of the accident

• Names and contact details of people involved: drivers, passengers, pedestrians or witnesses

• Details of the cars involved: make, models, registration numbers, colours and any distinguishing features as well as insurance details for the drivers

• Description of the damage to the cars involved

• Name and number of the police or other emergency services if any attended the scene of the accident

• Description of the weather conditions and visibility at the time of the accident and whether the cars used headlights, indicators etc.

• Description of the accident itself: what happened, positions of the cars involved, estimated speed of the vehicles, type of road, markings etc.

• Description of any injuries to the parties involved

• Photographs if anyone present at the scene has taken any

Next steps

You need to report the accident; it is an offence to refuse to give your details if there were any injuries resulting from the accident or any damage to the cars. You should inform your insurance company as soon as possible after the accident. The insurance company may recommend a solicitor if you want to make a claim however it is your choice which solicitors you hire and you do not have to follow their advice.

Making a claim

When the accident was not your fault

If the accident was not your fault you can make a Road Traffic Accident Compensation Claim for any losses resulting from the accident (injury, suffering, cost of treatment, loss of wages or expenses incurred). You must bring a claim within three years of the date you sustained an injury. You may be entitled to a make a claim under Conditional Fee Agreement (CFA).

What is a Conditional Fee Agreement (CFA)?

A CFA is commonly referred to as ‘no win no fee’ agreement. The basic arrangement is that a solicitor will represent a client without charging them unless the case is successful, whereby the solicitor’s fee will be paid by the losing party. You will agree a success fee which you will have to pay to the solicitor if you are successful, which could be as high as 100% of the solicitor’s costs. The main advantage is that your costs will depend on the outcome of your claim so you may not pay anything if you’re unsuccessful, however there is always a risk of having to pay the winning party’s costs.

Steps in making a claim

You will start your claim by sending a letter of claim to the at fault party’s insurance company. The insurers have then got 21 days to let you know that they have received your claim and further 3 months to investigate the circumstances of the accident and respond to your letter. They might reply by:

• Accepting liability for the accident: you will have to collect the medical evidence or the proof of financial losses to support your claim and agree the amount of compensation

• Dispute or deny liability: in which case they will blame you or another third party for the accident

If an agreement cannot be reached between the parties it is advisable to start court proceedings. You will have to collect evidence and present it to the judge as part of your case in order for them to make a decision and order an amount of compensation, if any is appropriate.

According to the Lord Young and Lord Jackson reports, there is no such thing as a compensation culture. It has stemmed from the media who have escalated the whiplash problem we are facing with an increase of advertising. From this, more people are claiming as more are aware that they have the right to claim for compensation.

The truth is that the reason why the media have increased compensation claims awareness down to the referral fee personal practice. Claims relating to whiplash are easy claims to win.

Though, it’s not only lawyers who are making a profit from this, accident management businesses, break down companies, garages and insurance companies have recognised potential. The majority of the public who have a policy will ensure they check the option to have “legal expenses insurance” to have the advantage of this option if they’re involved in an accident in the future. When insurers pass the victim’s details to the solicitors related to the insurance scheme, the insurers receive a referral fee for administration, profiting from the public’s accidents.

The insurers are the first point of call for anyone who has just been involved in an accident, thus they are able to smoothly gain their referral fees without delay. This does not even allow the individuals involved to consider if they should make a claim or not. However, it is not just the insurers who benefit from referral fees, an individual who is aware about the accident can refer details to a firm who handles claims and profit from the claim. If this practice didn’t exist, less people would decide to pursue a claim. Thus, this increase is due to insurers and other companies who are involved in the process pushing potential claimants.

Not all law firms purchase these claims from insurers, or believe in this practice at all. Last year, Jack Straw brought this precise issue to the media attention, claiming that this practice has driven an increase in no-win, no-fee claims which in turn increases the premiums of insurance. Mr Straw escalated his investigations to the Association of British Insurers where two of the UK’s largest insurance companies admitted on profiting from their customer’s accidents.

The sole reason why insurance premiums are on the increase is from insurers exploiting their own customer’s accidents to profit through referral fees. The Law Society and the Bar Council have both recommended that referral fees should be stopped as they limit access to justice and quality of legal services. Justice Minister Jonathan Djanogly confirmed that a bill has now been passed through the government to ban referral fees. In the future, it looks like this won’t be as much as a problem, but currently insurance premiums are still on the rise.

David Winston, Joint Managing Partner of waring commented about the link up with a1personalinjuryclaims “We are delighted to offer an additional site to our clients and prospective clients. We will be adding helpful content, news, cases and advice on a whole range of personal injury issues to offer an excellent resource for anyone who has had an accident or are a family member or friend of someone who has suffered an injury through no fault of their own”

Anyone can make a claim for personal injury compensation provided they have been injured in an accident that was not their fault. Since the late 1990’s there has been a huge rise in personal injury cases, partly due to people becoming more aware of their rights, the clarity of the law and the growing number of “no win no fee” personal injuries lawyers on the market, who have been drawing people in with their television advertising.

No win no fee means that anyone can make a compensation claim. If they are successful they receive 100% of the compensation and their costs will be paid by the other side (or their insurance company) and if they are unsuccessful then there is no charge. This allows the solicitors to charge up to 100% of their usual fees for acting on a case.

This procedure for claiming compensation for personal injury is to change under government reforms. It is argued that Britain is engulfed in a compensation culture and this is partly blamed on the “no win no fee” solicitors which have appeared over the last 10 – 15 years. The moves are being pushed by Kenneth Clark, the Secretary of State for Justice as part of a number of reforms. Mr Clark aims to reduce the huge legal fees charged by personal injuries lawyers, which have soared recently to 42 per cent of actual damages awarded, a huge rise in comparison with the 56 per cent in 1999.

Part of the proposal is to deal with personal injury claims online. This will cut lawyer fees, traditionally based on hourly rates. In further reforms anyone seeking personal injury compensation for smaller sums of money will be prevented from taking their case to a small claims court without trying mediation first in an attempt to keep cases out of courts, thus reducing legal bills for clients, the burden on the public purse and to curb the suing culture. This is likely to be welcomed as going to court can often make proceedings more complex, more expensive and more time consuming and this move will help to promote the courts as the very last resort.

This scheme will be similar to a current online service which deals with road traffic related personal injury cases.  The system allows parties to claim via a website and limits legal fees to £1,200 or £1,700 if it proceeds to court. Mr Clark is considering raising the threshold to £50,000 and to introduce other personal injury cases into this system.

In further measures, it is proposed that winners of no win no fee cases will have to pay their own legal costs out of their compensation money, a move which hopes to clamp down on spurious claims.

The moves, which have not been passed yet, are controversial and have received a mix reaction. Whilst they are welcomed by some, arguing that it will provide a simpler process for people to claim and provide some protection for those being sued, it is also argued that it may lead to fewer people having access to justice.

All employers, irrespective of the type of work, have a responsibility to ensure that the working environment meets the standard required by health and safety rules. Accidents caused by an unsafe workplace entitle the victim to make a work injury claim.

When one thinks of work based injuries, they immediately think of employees getting hurt whilst working on a construction site or a factory. However, injuries at work are not only limited to those suffered carrying out heavy-duty work but can be office and retail based as well. Types of injuries an employee can sustain include, repetitive strain injury, broken bones, trip, slips and falls, or handling, carrying and lifting injuries. Those are just a few examples, whether the injury sustained is minor or major is irrelevant, the victim can make a claim against their employer.

To make a work based injury claim it needs to be demonstrated that the injury suffered is the responsibility of the employer and the accident would not have occurred had procedures and guidelines outlined in health and safety laws been complied with. If this is shown, the victim will be compensated. A claim has to be brought about within three years of the date of the incident.

As with all negligence claims it has to be established that the employer owed a duty of care to the employee, they subsequently breached that duty and as a result the employee suffered injury. Employers owe their employees a duty of care from the moment they step into the office. They are obliged to provide a safe environment for their employees to carry out their work and responsibilities in the work place. Should they fail in doing this, employers are in breach of their duty of care and health and safety laws.

The injury the employee sustains has to be reasonably foreseeable. Meaning, the lack of a safe working environment would naturally cause an accident and therefore injury to the victim.

If the victim contributed to the negligence, the compensation awarded may be decreased. For example, the floor is wet and a wet floor sign has not been put up and the employee’s shoelaces are also undone. If the employee trips on their shoelace and consequently slips on the wet floor resulting in them falling and hurting themselves. The employer would only be partially negligence because the employee contributed to their fall by not tying their shoelace.

Work injury claims work on a no win no fee basis. There is therefore no risk involved for the victim. If the claim is successful, the full amount of compensation is received. There are no deductions or hidden costs.

Employers are obligated to report all major accidents, diseases and dangerous incidents that may have occurred to the Health and Safety Executive (HSE). Likewise employees who have sustained an injury in the workplace are advised to report the injury to their employer and maintain a record of their report for evidential purposes. Furthermore, it aids the prevention of similar accidents occurring.

Any claim made should be supported by evidence showing the same. As well as the report, photographs, sketches and witness statements help the success of the claim. Records of medical advice sought and financial loss suffered (privately paid medical treatment or loss of earning) should also be kept.

Compensation

The amount of compensation awarded is dependent on the extent and seriousness of the injury sustained and the financial loss suffered. Therefore medical evidence is important to decide how much compensation is to be rewarded.

Work based injuries can also affect the employee’s personal life and working life therefore affecting them psychologically. This is known as loss of amenity. Any compensation awarded will take this into account.

Finally, financial loss including loss of earnings is also covered. The aim is to put the employee in the position they would have been had the accident not have occurred.

Where there has been a fatality, further compensation is awarded to cover funeral expenses and expenses for living dependent relatives foe example a spouse or children.

A European Court of Justice ruling may well impact on UK citizens who suffer an accident or injury abroad. The ruling will apply to claims for injuries suffered after 11^th January 2009 and the rule change means that compensatory levels for injuries in an EU country will be set according to the levels of the country in question. Previously the level of damages would be according to English law for UK citizens.

This may result in lower damages although the level of compensatory damages generally under English law for pain and suffering is not generous in any event, especially compared to the US legal system.

Where the impact may be most significant may relate to the smaller number of serious injuries where special damages for lengthy or lifelong periods of loss of earnings and care costs may be awarded under English law, and jurisdictions do differ on this head of claim. Cases may take longer and interim damages may not be available under different jurisdictions Interim payments can be very important where cases take a long time to get near court and the injured party has little or no income and significant medical needs.

Foreign Office figures for last year state that there were over  3,700 serious injuries abroad for UK nationals which necessitated assistance from UK embassies or consulates. The number of overall injuries  is significantly higher.

Bogus and inflated personal injury claims relating to car crashes have become a massive and increasing problem. This is not a victimless crime either, we all suffer because losses to insurers as a result of this activity ultimately result in higher car insurance premiums for all of us.

The Insurance Fraud Bureau produce quarterly figures and analysis on this problem, and their latest report shows :-

• The problem is worst in Birmingham, Sheffield and Manchester
• That action by insurers and police prosecutions can ameliorate the problem, and that there are definite ringleaders and organizers of this type of fraud
• Luton was one of the worst areas for car crash fraud only 3 years ago, but is now much less prone to it because 33 individuals were charged and convicted of car fraud offences in thye intervening period.
• That insurers are now doing much more to deal with the issue. They have agreed to fund a designated police unit to deal with insurance fraud, including household insurance policy fraud and set against the context of there being well over 100,000 fraudulent claims a year resulting in losses of over a billion pounds.

The annual report from the NHS Litigation Authority (NHSLA) advises that over £250 million was paid out for solicitors on medical negligence claims during 2010-11, which is almost a 60% rise from the year before.

Just over £60 million of the funds was paid the Authority’s defence panel of solicitors. Other interesting facts to come out of the report are :-

• Just under 5,400 claims resulted in payouts.
• The number of medical claims for the year rose by 30% to 8,655.

The report indicates a belief that the rise in claims, costs and payout sis likely to be at least partially attributable to the attractive enhanced costs orders available for solicitors to take these types of cases on on a no win no fee basis.

There has been much discussion in the media recently about the plan to ban payment of referral fees to claims management companies, who deal in areas such as personal injury and claims for PPI policy misspelling. It looks as though times may not be so good for these companies in the future, yet at the moment they are doing very nicely thanks you.

A recent report indicates that :-

• Claims management companies income in the last year was over £580 million
• The above figure is a nearly 60% increase on the previous year
• Personal injury revenue was nearly £250 million
• Claims relating to financial services and product liability accounted for nearly £190 million.
• At the end of March 2011, there were over 3,200 claims management companies
• There were around 17,500 complaints made to claims management regulators last year