Personal injury litigation is a field of law that deals with physical or psychological injuries that are caused by neglect, accident, error, or wrong-doing. In most personal injury cases an injured party makes a claim for financial compensation from a defendant, and the solicitors of the two parties negotiate the amount the defendant will pay.
What Is A Personal Injury?
Personal injuries can take many different forms and occur for a wide range of reasons. For all personal injuries, including medical negligence injuries, the common thread is that a person, persons, or organisation has allowed to happen an error or accident that caused an injury, has neglected to prevent an injury, or has wilfully caused an injury.
While the word “injury” brings to mind things like slip-and-fall or car accidents, there are many other situations that can qualify as a personal injury, including both physical and psychological illnesses that arise due to some kind of negligence. For example:
- Exposure to harmful chemicals at work or in the home causes some kind of illness. For example, asbestos exposure that leads to mesothelioma cancer or asbestosis.
- A road traffic accident caused by one party in which another party is injured or killed.
- The victim of a crime is physically or psychologically injured during the commission of the crime. For example, someone develops post-traumatic stress disorder as a result of being assaulted or robbed.
- Someone is injured during normal use of a product they purchased. A famous example of this is the American woman who received third-degree burns when she spilled McDonald’s coffee on herself. The coffee was heated far beyond what constitutes a safe temperature, and she sued for and was awarded personal injury compensation.
- Someone is injured in a public space because the space wasn’t adequately maintained. For example, a slip-and-fall accident that occurs because of a wet floor that wasn’t marked as such.
Medical negligence is a particular kind of personal injury that occurs when it’s a medical professional who causes the injury. In cases of medical negligence, a nurse, doctor, or another medical professional is considered to have failed in their duty of care in such a way as to have caused injury. For example:
Someone with a documented allergy to penicillin is prescribed the drug and has a life threatening reaction.
A surgical patient is neglected after surgery and dies due to internal bleeding that went unnoticed.
A patient falls and is injured because they didn’t have the assistance they needed to use the toilet safely.
When Do You Need A Personal Injury Solicitor?
In general, you need a personal injury solicitor if you suffer a physical or psychological injury that is someone else’s fault, and for which you want to claim some kind of compensation. Compensation can take a variety of forms, such as payment for lost wages, for medical expenses, or for pain and suffering caused by the injury.
Note that it doesn’t always have to be the person who suffers the injury who brings a lawsuit against the culpable party. When someone dies as a result of a personal injury, their family may choose to take legal action in order to be compensated for the loss, and for medical and funeral expenses.
What Should You Do If You Suffer A Personal Injury?
If you are injured or hurt as a result of someone else’s harmful behaviour, there are certain things that need to be done in order to prepare for making a compensation claim. These include:
- Creating a written report of the incident. This should be done as soon as possible while the details are still fresh. You should also take details of any witnesses to the incident plus you should take a note of the name of the wrongdoer.
- Reporting the injury to the owner of the spaces in which it took place. This might be your employer, local health authority, or council.
- If the injury doesn’t require immediate medical treatment, visit your doctor to document your injuries or symptoms, and to make sure there are no serious hidden injuries.
- If the injuries are the result of a traffic accident or crime, make a police report.
- Take photos to document the scene of the incident, and to provide a record of your injuries. In the case of an injury caused by a faulty product, also take photos of the product for your records.
- Obtain and keep bank statements, receipts, and other records of expenses incurred due to the incident.
- In some cases—for example for traffic accidents—it is advisable to report the accident to your insurance company.
What Can A Personal Injury Solicitor Do?
Personal injury law is complicated, and there are lots of different factors that go into determining whether a case is valid, and in calculating what kind of compensation can be awarded. A solicitor can perform a wide range of tasks to help you pursue a personal injury claim.
When you first see a solicitor to discuss your case, you’ll be asked to go over all the details and provide any supporting documentation you’ve gathered. The solicitor will give you a preliminary assessment of how likely you are to win your case via a settlement or through the court system. Deciding on the amount of the claim means thinking about what you want in the way of compensation, and also whether you’re willing to settle for a lesser amount in order to avoid going to court. As your personal advocate, your lawyer will do their best to obtain the highest amount of compensation possible.
As well as this, they’ll go through all the different legal processes involved in making a compensation claim, and what you can expect to happen at each stage of the claim.
If you decide to work with the solicitor, you can ask them to send you a letter to confirm this in writing, and to detail the advice they give you. This should include details such as the expected time-line for the whole process, an estimate of your likely legal expenses, and any information the solicitor needs you to provide in order to pursue the claim.
The solicitor will provide you will legal advice at each stage of the process so you can make informed choices. Once they start the compensation claim they will act as your advocate when negotiating with the defendant’s solicitor. Depending on the specifics of your case they might also advocate for you in negotiations with your insurance company.
How Is A Personal Injury Case Resolved?
Making a compensation claim starts when your solicitor sends a claim to the defendant who you believe is responsible for your injury. Once the letter is sent the defendant has a limited period of time in which to accept or deny responsibility for the injury.
If they accept responsibility, your solicitor will try to settle your compensation claim without going to court. This usually involves your solicitor making an offer asking for a specific amount. This is either accepted or rejected by the defendant. At this point, what usually happens is that the defendant either accepts this offer outright or else makes a counter-offer for a lesser amount. In the former case, the claim is resolved, while in the latter case it’s then up to you to decide whether or not to accept the counter-offer.
If you and the defendant can’t reach an agreement over the settlement, you may then decide whether or not to take the claim to court. If the defendant denies responsibility altogether, you can also opt to go to court to challenge them.
If you decide to pursue your claim through the court system, your case is assigned to a judge and the court will assign a date, time, and place for your hearing. In court, you and the defendant both have the opportunity to state your case, and the judge will decide on liability and a financial award.
- Your solicitor writes a letter to the defendant advising them of your claim, and the defendant accepts or denies liability. If they deny liability, you can take them to court to pursue your claim.
- If they accept liability, your solicitor makes a financial claim on your behalf. The defendant can accept the initial offer or make a counter-offer.
- If you and the defendant can agree on an amount, the claim is settled. If not, you can take the matter to court to try and win a higher compensation amount.
Talking To Your Solicitor About Fees
Legal aid is no longer available for personal injury cases in England and Wales. However, if you win your claim the defendant will be ordered to pay most of your legal expenses.
Note that depending on the solicitor you instruct you may have to pay a separate fee if the solicitor wins your case. If your claim is successful your solicitors are entitled to take a ‘Success Fee’ of up to 25% of your compensation. However, if your claim does not succeed then your solicitor fees incurred would not be payable. Please be aware that some third party fees (such as fees for obtaining a medical report) that would have been incurred during the process of your claim remain payable. Such fees should be discussed with your solicitor before they are incurred.
It’s important to talk to your solicitor about financial matters, particularly in terms of what happens if you go to court and do not win your case. Your solicitor will talk you through all your options so that you can make an informed choice on how to cover your costs in each possible situation.