Accident claims and contributory negligence

If an accident occurs on the road between vehicles, a lot of the time, the court may apportion the fault between the parties who are involved. Sometimes, the court may find one party at fault, and other times both parties are equally at fault or apportioned differently such as 60:40. This duty of care also extends to their own safety, to take precautions to minimise the risk of injury.

What Duties are Owed in an Accident

Any road user has a duty of care to avoid causing injury to other road users and pedestrians. The duty of care is not limited, and is not to say that each user has to make sure others are safe, but to prevent any injuries which could be reasonably foreseen from their actions on the road. Continue reading

Issues with injury claims and the personal injury market

The last decade has witnessed a boom in personal injury claims, particularly in those areas such as road traffic accidents, and work-related accidents. Whiplash injury claims have soared, with many labelling this new era as the ‘compensation culture’.

Although it is actually relatively simple to pursue a personal injury claim, the perceived complexity of such claims has led to a burst in claims management companies (CMCs).

Those that are thinking of using these companies should be wary of whether they are actually getting professional advice – many use ‘claims specialists’ rather than actual solicitors – and so advice can sometimes be diluted, or not be as professional as one might expect.

Problem #1: Time Delays between the Accident and the Claim

One of the biggest problems with personal claims is the time delay between the accident and the beginning of the case. Most of these claims are based on the negligence of the defendant, and so need to be pursued within 3 years from the date the injured party becomes aware of the fact that they have suffered an injury. Note that the time limit does not begin from the date of the accident, but from the date at which the claimant realises their injury. Continue reading

No win no fee solicitors

Personal injury is an unusual area under English law – it is really the only area where a no win no fee agreement generally works very successful both for no win no fee solicitors and for clients (although there is a growing trend towards a degree of shared risk in some commercial disputes, especially for high value and complexity cases or relating to insolvency disputes), with most personal injury lawyers offering 100% compensation. No win no fee is available in many other areas of law, but doesn’t work nearly as well. An example of this is employment claims. The difficulty with these claims is that there is a general no costs rule in the Employment Tribunal which means that a successful claimant will have to pay any legal fees out of his or her award. With an average Employment Tribunal award at less than £10,000.00 it can easily be the case that the claimant ends up paying all damages over to his or her solicitors.

This no costs rule does not apply to personal injury claims and the other important factor is that, whilst the evidence of witnesses and the claimant and perhaps defendant is important, there is often other evidence available, some quite clear rules regarding for example accidents at work or car accident and road traffic law and medical evidence. consequently, there is often greater visibility on prospects of success with injury claims than, for example, with employment claims.

Another advantage for claimants is that personal injury solicitors will pay out for the expenses of starting and pursuing a claim, such as court fees and medical evidence costs, which would otherwise mean that many would not be able to bring a claim.

One issue to be aware of is that with no win no fee agreements is that the lawyer will have a say in settlement. If the defendant, or more accurately often their insurer, makes an offer which, whilst not at the top end of what might be achieved on a best case scenario at trial, is considered reasonable on a risk/benefit analysis by the lawyer, it may be that the client must accept the lawyer’s decision. This should always be discussed and clarified between solicitor and client at the stage the no win no fee agreement is entered into.