Compensation

Compensation explained

Care and carers

September 28, 2009 in Compensation, Head Injury, Spinal injury | No comments

For all the best reasons we want to care when a family member is in need.

My experience tells me that carers do not think about the toll the care regime takes on them. You have to be forced to stop and think, particularly because your relationship with the injured person is going to change. For instance a wife becomes a carer, and a serious injury may mean the injured person is no longer the person you married. That is a tough message, but it has to be weighed up when looking at a care regime.

Experience tells us that respite for the carer is vital. We must also look long term, particularly if there is a physical element to the care, such as lifting and wheel chair use. You may not be as fit in ten years time. Much as you want to do everything yourself you must look at the alternatives, and do what is right for you, as well as the injured person.

It is sad to say but I have seen couples divorce after a serious injury, particularly where an acquired brain injury has been suffered, and there are changes in behaviour. The spouse or partner fights for the best treatment and compensation, but that fight together with the stress and strain of full time care, is often too much. I am not surprised relationships break down, and have every sympathy for those in this situation, but these facts of life have to be faced.

The best time to look at these issues is when a care regime is being established. it is here that I strongly advise on the need for an experienced case manager. They will manage the care regime, and make sure all other agencies are playing their part. A case manager can make a real difference as they will bring objectivity to the assessment of needs, including yours as the carer.

For more information see:

Let us know if you come across good sources of information and support.

Child acquired head injury

September 28, 2009 in Compensation, Head Injury | No comments

These are difficult personal injury compensation cases and require experience and expertise.

At the outset of such a case much time and effort is spend on the child’s medical, educational and financial needs. The support available varies depending on where you live, but if you do not know what help you are entitled to, where do you start.

Compensation is calculated on the difference the injury has made, we compare the before and after. The calculation is in terms of money, and the most significant areas are the cost of care, and earnings loss or reduction. Much easier to weigh up the consequences for someone injured in their thirties, whose career path is already decided. With a seriously injured child the presentation of the case requires experienced help.

The assessment of the effect of the injury is not as precise or scientific as you might think. It is not easy to look at an eight year old child and predict what their working life will be. That is the question which has to be answered. School records, how are brothers and sisters doing, how were the parents educated, what do the parents do for a living, and how motivated are they in the development of their children, are all questions which have to be answered. This part of the case has to be managed carefully as most evidence against which such assessments are made means the injured child is assessed against the average, or the norm. The assessment must be as specific to the child with the acquired head injury as possible.

Rehabilitation can play a significant part. If the case is straightforward on the question of liability, the third party insurer will often agree to cover the cost of rehabilitation. The insurer will cover this cost in the hope of bringing about an improvement. Insurer’s vary in their approach to rehabilitation. An alternative is to obtain an interim payment, and use that to help with private medical treatment and therapy, to give the injured child the best chance of recovery. In any care regime you need a case manager to bring together home life, education, and treatment.

Advice on children with an acquired brain injury is available from:

Advice for parents and carers is available from:

These are just a few examples. Let us know if there are others we should add to this list.

Expert evidence

September 28, 2009 in Compensation, Explanation, Legal costs | No comments

Only experts can give opinion in a compensation case, and the opinion must be limited to the field of expertise.

A medical expert is the usual expert, but again the medical expert must keep to their own area of expertise. Accident compensation cases sometimes need the help of a reconstruction expert, an engineer, an occupational or employment expert, or an accountant. Wherever the Court needs expertise to assist in coming to a decision you will be allowed to instruct an expert. The Courts can be restrictive, and have the power to limit the evidence overall to the evidence necessary to prove the case. The lower the value of the likely compensation, the less likely you are to be able to rely on experts.

The role of the expert is to provide a report to the Court. That is the first and foremost duty of the expert. Even though your solicitor may instruct and pay the expert, the expert is not “yours.” This was designed to get over the old problem of each side using an expert they will know supports them, and the trial of the case being a decision between the two opinions. The duty to the Court was introduced to prevent the expert feeling obliged to please the party paying them, the worst examples being referred to as ‘hired guns.’

The Court manages the use of experts to ensure costs are not increased unnecessarily. The Court may impose a single joint expert. This will reduce costs, but solicitors still like the opportunity to instruct an expert they see as theirs, in the hope the expert will support their case.

When a client is going to see a medical expert, I am often asked how should the client behave. The answer is always the same. Treat the examination as you would any medical examination. Answer questions honestly and openly, and do not be embarrassed to explain the problems the injury has caused. We are often too British when we are asked about problems, as we feel we should not complain. Once the examination is over it is a bit late to complain no mention is made of a problem.

If you have had similar injury, or problems in the past, volunteer that information. Otherwise, once discovered, you will look as though you are hiding relevant history. Your medical records are usually available to a medical expert. That means all of your medical records. If you are bringing an action saying someone has injured you, there is a right to see your medical history to ensure there is no other cause. That is fair enough, and with the exception of problems of the highest sensitivity, your medical records have to be available to an expert, and to all parties to a case.

Experts can be asked questions. If there is more than one expert in a case, they will usually be ordered to undertake a discussion with other experts, the aim being to advise the Court where they are in agreement, and where they are not. The Court can then decide what evidence it needs to hear to decide the case. The process saves time and cost.

Mitigation

August 31, 2009 in Compensation, Explanation | No comments

Mitigation means keeping your losses to a minimum, reasonableness being the guiding factor.

When you claim compensation after an accident you have a duty to mitigate, or reduce, your losses. Your response to the problems created by the accident must be reasonable. This applies to your ability to work, or having a damaged item repaired reasonably quickly to avoid a reduction in its value.

A simple example may help. You are involved in a car accident, and your car is badly damaged and cannot be driven. What do you do, as you need to get to work? Have you alternative transport is the first question. Hiring an expensive car is not a reasonable approach when you have an alternative vehicle available. If the car repairer has a courtesy vehicle available when yours is in the shop, using that vehicle keeps your losses down, and is a good example of mitigation.

A more complicated example is a self employed lorry driver. If you cannot drive it might make more sense to hire a driver to cover for you rather than give up the work and contracts you are committed to.

To mitigate your loss you should take sensible steps to keep the loss down. The law will not support you if you let losses run away with themselves, expecting compensation to come to the rescue.

Common sense and reasonableness should be your guiding lights. Mitigating your loss avoids argument and disappointment when recovering compensation, and it will help you. Keeping your activities and work as normal as possible is going to be better for you in the long run. I always encourage clients to do what they can, and not to think about the effect on compensation. As soon as you start valuing the effect of any activity on the compensation you will receive you are in danger of falling into the compensation trap.

Proving your injury and financial losses for a compensation case means you must always show what has gone wrong. How injured are you, and what has been its effect. You are examined by doctors and will feel under pressure to impress them just how bad your injury was. So if your lawyer concentrates on how bad things are, how can you get on with life as normally as possible?

Compensation is really an expenses claim. You receive some payment for the injury and its effect, but most of the compensation is for financial losses and expenses, to date and in the future. There is no benefit in allowing an unnecessary increase of these losses, as you have to suffer the loss first before you can claim it. If you rely too heavily on compensation to put things right you may be disappointed.

My advice is to carry on with life as normally as you can. That is the best strategy. Those who fight disability will tell you not to allow the disability to rule. In a compensation action my advice is the same. Do what you can to preserve normality, and let compensation help mop up afterwards. Compensation is not the answer, it is just the law’s way of trying, in money terms alone, to put you back in the position you should have been in had the injury not occurred.

Claim for self employed

August 31, 2009 in Case examples, Compensation | No comments

Self employed

I often act for self employed people. Running my own business gives me an understanding of the self employed, and the particular pressures and issues these cases for compensation involve. Someone on a salary may not be too concerned by a period off work, but for the self employed this can mean immediate loss of cash flow, and a drop in profit at the year end.

We need to look quickly at rehabilitation in cooperation with the third party insurer. We need to look at any insurance you may have. Policies such as permanent health insurance do not usually kick in until you have been off work for some months. Do you need to hire someone to keep business ticking over? Are State benefits available to you? These are all good questions, not necessarily the relevant to a personal injury case, but questions an experienced adviser will raise, and have answers.

I have acted for pension and financial advisers, company directors, welders and fabricators, taxi drivers, option traders, actresses, lorry drivers, and solicitors. I have also acted for the families of such individuals when the accident has proved fatal. Advice in each case comes from the same pool of experience, but advice is bespoke in each case. The case is yours and needs individual attention, and it should not be squeezed into the computer programs of some of the large legal outfits.

Accounts are always important. How can you prove your financial loss? It is not just a question of saying I am down one year in relation to the previous year. There are many factors which affect business, the financial crisis of 2008/09 being a good recent example. We must get under the skin of your business, understand where income and profit comes from, and then identify the loss caused by the accident. You might be surprised that your VAT records can be a great help.

It has to be said that for many self employed business people that income and profit may not be the same thing. Accounts are sometimes drawn with an eye on tax. An understanding of all these issues is vital if you are to be helped from the point of the accident right up to the conclusion of the case, and beyond.

Paraplegia

August 18, 2009 in Case examples, Compensation, Spinal injury | No comments

In simple terms waist level paralysis. In life terms every thing is different.

I handled a case for a young soldier, who I will call John. He was off for the weekend, and got a lift in the back of a friend’s car. The driver had to take evasive action to avoid another car changing lanes. The car rolled over several times, and John, who was not wearing a seat belt was thrown out of the back window. The spinal cord was damaged which left him paralysed below the waist.

He had great treatment and rehabilitation at the Army’s specialist facilities, but there came a point when he was discharged on medical grounds and had to make his own way in the world. The case was defended by blaming the driver of the other car who made the evasive action necessary, and criticising the failure to wear a seat belt. The first argument was defeated, but the second is set in stone. Not wearing a seat belt means an automatic reduction of compensation by 25 per cent if wearing a seat belt would have prevented all but minor injury, and 15 per cent if wearing the seat belt would have substantially reduced the injury. Once more I get the opportunity to point out the very real effect of reducing the total compensation if there is a finding of contributory negligence. The decision which sets out the law for failing to wear a seat belt pre dates the law on compulsory seatbelt use.

Perhaps as a result of his military training, or just his own determination and courage, John found himself a home, an adapted car, kept fit, and kept positive. This was necessary as the defence of the case meant it was not possible to quickly obtain an interim payment to ease John’s passage into his new life. He struggled for a time in a ground floor council flat until able to buy his own house, and adapt it for wheelchair use, when the case was complete.

Cases involving serious injury are very expensive for insurance companies. They cannot be blamed for trying to defend an expensive case, but there are differences between the approach of insurance companies. Some have to be forced, and some will work with you. Such cases are best resolved with experienced people on both sides.

Spinal injury

August 18, 2009 in Case examples, Compensation, Spinal injury | No comments

I have pointed to the effect of a finding of contributory negligence elsewhere. The effect is greatest in the most severe injury cases, because the needs of the injured person are so great, and therefore expensive. If you are found to have contributed a percentage is fixed to identify your share of the blame for the accident, and that same percentage is shaved off the value of your compensation. A clear example of this effect was a motorcyclist who suffered a high level spinal injury which left him almost completely paralysed.

A Court decision said he was one third to blame, so one third was shaved from the value of his compensation. The only pure compensation given for this type of injury is the general damages for pain, suffering and loss of amenity (what can no longer be done), and the top end for compensation is £250,000. The real expense in such a case is the care regime. Employing  carers all day every day is expensive, and is the reason some of these cases settle well above £5,000,000. The care regime cost is based on annual care cost projected forward based on the life expectancy of the injured person. A young person with a good life expectancy will need many years of care, a a great deal of compensation.

The problem in the example case was the one-third finding of contributory negligence. The fear for any compensation amount is that it will run out, but when you are down by one-third at the start, what chance is there for a good care regime and everything else which is necessary.

We cannot imagine what someone so severely paralysed experiences, particularly when fully aware of their circumstances. You might be able to imagine what is necessary to take a trip away from home for a day, and when you do you must not leave out an appropriately adapted vehicle, at least two people in case any lifting is necessary, a powered wheelchair, and the time and energy to take account of how long it all takes. In terms of compensation, all of this costs money, and lots of it. If you start with one-third off the compensation, you might just stay in bed or a wheelchair.

This accident was caused by a driver pulling out across the road from a petrol station. The driver did not see the bike approaching along a straight road. There are many explanations you can give for causing such an accident, but not seeing the motorcycle is not good enough. The law does allow the driver to try to prove the rider was travelling fast, and could have stopped or steered around the van if speed had been lower. One-third to blame was the Court’s decision, but that one-third is taken off the total value of the case, and effectively only funds a care regime for two-thirds of the anticipated lifespan.

We can say the result is unfair, but the injured person who cannot seek compensation might say it is better than having to rely on the bare minimum provided through the State benefit and NHS system.

My experience of dealing with such cases is always one of mixed feelings. You can only deal with the case in the best way possible, working with the client and family to provide as much financial help as possible. What is always humbling and cheering is the remarkable guts and fortitude shown by the injured person and those who rally round to support.

Tractor turns right

August 17, 2009 in Case examples, Compensation, Head Injury, Motorcycles | No comments

A tractor turning right without indicating as a motorcyclist overtook had serious consequences.

The rider was knocked off his bike and then run over. Many fractures were suffered, together with a head injury. The accident brought to an end a promising military career, and in fact the combination of the physical disability, and more importantly, the head injury, made future employment unlikely.

Receipt of War Pension and an early interim payment allowed for suitable accommodation and transport. Family support was so important in this case.

A significant settlement allowed the purchase and adaptation of a home, and sensible advice meant long term income was protected.

Structured settlements, depending on the annuity rate current at the time of settlement, can produce long term security. All or part of the compensation fund can be used to purchase an income for life. It appears expensive, but when long term care and security is the priority a structured settlement can work well. The income from a structured settlement is received free of tax, and is not taken into account when means-tested State benefits are assessed. These two factors often mean it is a challenge to equal the income of a structured settlement using other investment strategies.

Although not available at the time this case was handled, periodical payments are now available. They are considered so important that in large compensation case you will have to persuade a Judge why periodical payments are not the answer. From the injured person’s point of view you might feel a long term relationship with the Defendant’s insurer is not ideal. You might prefer to be independent. The driving force behind the introduction of periodical payments is the high cost to the NHS of birth damage cases. It helps budgeting to spread the cost of multi million pound settlements over the lifetime of the injured child. The benefit for the claimant is that the periodical payments can go up if circumstances change, but of course down if costs reduce.

There are cases when structured settlements and periodical payments are the best solutions, but there are occasions when they are not. Experienced specialist advice is very necessary in a high value case.

Whilst on the question of compensation and long term needs, one subject to include is the Personal Injury Trust. The law allows compensation from a personal injury settlement or award to be paid into a Personal Injury Trust. The Trust fund and income is ignored when assessing means tested State benefits. Such a trust does not have to be complicated, and the injured person can have control of the fund. A Personal Injury Trust can also be useful when the injured person might need to be protected from investment risk, as others can be appointed as Trustee, and manage the Trust with a long term view. Remember, you only get one compensation award, and when it is spent there is no more, unless you were awarded provisional damages.

Contributory negligence

August 14, 2009 in Compensation, Explanation | No comments

Contributory negligence is such an important subject it is worthy of its own section.

You can prove your case by showing you were injured by someone who did not take reasonable care for your safety. They might be able to show you were partially to blame, and therefore contributed to the injury. Your contribution is assessed as a percentage, and that same percentage is knocked off your compensation. That may sound fair enough, but the effect can be tough. Losing 50 per cent of a £2,000 claim may not be the end of the world, but in a larger case, where most of the compensation is ear-marked to pay for long term care, losing even a small percentage for contributory negligence, can be very expensive indeed.

Even if liability is admitted in your case, contributory negligence can still be argued against you. An admission of liability alone does not mean you will receive full compensation. You need confirmation that contributory negligence is not to be argued. A simple example is a car and pedestrian road accident. The car should have been driven in such a way that the driver could safely stop or avoid anything or anyone in its path. So if a pedestrian is hit by a car on a road, the pedestrian will usually succeed. The closer the car is to a pedestrian when he or she steps into the road, the more likely is a finding of contributory negligence.

A regular argument against the claim of a motorcyclist is speed. “I did not see you” says the car driver, but if you were going slower I would have had more chance to see you.

Contributory negligence is often agreed, and if not agreed, assessed by a Court. Contributory negligence is often used in negotiations as a way of persuading a claimant to accept less than the full value of their case. So in a case where contributory negligence has not been agreed or decided on by a Court, you will always have this argument nagging at you when negotiating, or at Trial.

Do not quickly accept contributory negligence. The test for negligence is not high. Have you failed to take reasonable care for the safety of someone else? That is the test and a low standard of proof is applied, called the balance of probabilities, which means is something more likely than not. So it is not difficult to show someone is at fault, and on the other side of the argument it may not be difficult to show you have contributed, but do not give in too easily.

Where does the balance of responsibility lie. Someone driving a large and heavy metal object, better known as a car, must take more care than the pedestrian. An employer has responsibility for the work place and equipment, so carries that additional level of responsibility. Do not forget this balance when thinking about contributory negligence.

Credit hire

August 10, 2009 in Compensation, Explanation | No comments

Credit hire companies provide and repair vehicles after an accident when someone is to blame. They can help protect your insurance record, and that means your premium and no claims bonus.

Their business is based on you being blameless, and someone else being responsible, and that person having insurance.

The situation usually looks like this. Your vehicle is off the road for repairs and you need a replacement car for a fortnight. Your own insurer may not be keen to give a courtesy car, and the body shop has none available. Do you take taxis or hire a car, and can you afford the expense? Credit hire and repair give you an option. You sign an agreement accepting liability for the cost of hire and repair, and if the hirer is confident someone else is to blame, and they have insurance in place, they will provide a vehicle. The idea is to recover the cost from the insurer of the person to blame, and you pay nothing.

The benefit to you is that you do not have to make a claim on your own insurance. If you make a claim on your own policy your premium will increase and your no claims bonus will be affected. If your own insurer pays your record is affected, even when someone else is to blame.

Some insurance companies will chase for reimbursement from the insurer of the driver to blame, but many do not.

Credit hire companies do get stick for their hire rates, but to be fair they do exist because insurers will not pay for alternative transport when your car is in for repair. The respectable credit hirers have agreements on rates with the insurance industry. There are good and bad credit hire companies. For them to be paid you must be liable to pay the hire. You must beware of ending up with the bill in your hand. Take advice from an experienced solicitor who knows the work of the credit hire company.

Not all insurers are tight on courtesy vehicles, but if you have bought your policy on price do not expect first class service. If an insurance company offers a courtesy car the expense is usually covered by the body shop doing your repairs, or by a credit hire company. The insurance companies have found ways of providing a service without bearing the cost. That is to their credit as it allows them to be competitive on premiums, and cheap premiums are what we want.

« Older entries

Proudly using Dynamic Headers by Nicasio Design