Trust bank account use

Trust bank account use

This webpage is for clients of Mark Thompson Law who have been through the process of creating a trust for personal injury compensation.

You will be familiar with some of the text below, but this page will answer most questions and help you and your trustees to set up and operate your trust.

Benefit regulations allow you to keep your benefits and hold and use your compensation. The compensation must be held separately from your personal funds and the device used to achieve this is a trust. Once you understand and accept this need for separation of funds, you will be well on the way to understanding how the trust should operate.

When the trust is finalised, the trustees set up a separate bank account to hold the funds. That account must hold only compensation from the personal injury action and any income received on that money.

The first account for the trust should be a current account. You can then set up other accounts and investments, but these must be held by the trust, not by you.

The trust bank account ought to have the same name as the trust. It will be “The (YOUR FULL NAME) Personal Injury Trust 2021.” Benefit agencies sometimes ask if trust money is held separately, so what better answer than a bank statement showing the name of the trust.

Trustees should agree to a financial transaction, so the starting point is all should sign for each financial transaction. If this makes management of the account inconvenient, the trustees can agree to reduce the requirement to two trustees.

Do not be tempted to allow transactions based on your signature alone. If you have direct access to the trust fund, which includes the use of debit cards and internet banking, the trust will not be accepted by benefit agencies.

At the moment, the most consistently helpful banks are Barclays , Metro Bank (£25,000 minimum initial deposit) and Cater Allen. Other banks can open an account for a trust, but I cannot say any are consistently helpful.

Use of trust fund

The trust is a device which holds your compensation and the golden rules are:

1.       Use your benefits to pay for the basics of life.

2.       Do not use the trust on items for which benefits are intended.

3.       Buy direct from the trust.

3.       Do not transfer money from the trust to your personal account.

4.       Do not withdraw cash from the trust.

Money in the trust can be used pretty much as you wish, provided expenditure is made direct from the trust.

The trust should avoid expenditure on items for which benefits are intended, such as food, ordinary clothing or footwear, household fuel and rent.

I recommend you keep a record of all trust transactions. This may appear artificial, as you may not currently be in receipt of benefits, but as it could prove necessary in the future keep your records from the start.

When you use funds from the trust DO NOT transfer money to your personal bank account or withdraw cash. By doing this, you lose the protection of the trust and the transferred money or cash will become subject to benefits means-testing. This is the case even if the money is only held briefly. The trust bank account should be used to directly purchase items.

Must the trust account only have a cheque book?

If you, as the compensated person, are one of the trustees, the account must be operated on at least two signatures. You must not have personal access to the trust fund. Even where the compensated person is not a trustee, the trust should operate on a minimum of two signatures.

One recent development is dual authorised online banking.

This facility has been offered by Barclays on accounts requiring two signatures. It is internet banking , but with an approval process. The first trustee sets up the transaction using online banking, the second trustee is sent a message and approves the transaction.

If you choose Barclays for the trust account, a cheque book will be provided and trustees can visit a branch to arrange a bank transfer. Do make sure you ask about Dual Authorisation.

Metro Bank will open an account for trustees where the initial deposit is £25,000 or more. The bank will entertain a lower interim payment, if the final settlement is likely to exceed £25,000. The funds can be used by cheque, by telephone banking, at a branch or via email. Metro will provide view only access via online banking, free of charge.

Cater Allen, is part of the Santander group. This bank offers accounts with a cheque book and dual authorised online banking. This facility is so much more flexible than a cheque.

If I cannot use a cheque, is there an option?

If a cheque is not acceptable, or the trustees cannot achieve the best price with a cheque, there are four options.

  1. The signatories of a bank account can go to the bank branch and arrange a bank transfer (check for bank charges).
  2. The signatories of a bank account can go to the bank branch and arrange a bankers’ draft (check for bank charges).
  3. The trustees may authorise the use of a credit card. That can be your credit card, or one belonging to someone else.
  4. Banking for trustees is improving, so investigate dual authorised online banking. Not an immediate solution, but worth checking out for next time.

You must not use a credit card knowing the bill will be paid by the trustees. That is the same as having personal access to the trust. Each transaction should be agreed by the trustees.

A credit card works, as the funds do not pass through your hands or personal bank account.

Can I keep some of the compensation in my personal account?

The answer is, possibly.

The answer depends upon whether you have already received compensation and how much money you, plus those claiming benefits with you, hold in personal accounts.

Means tested benefits allow you to have up to £6,000 and no more than £16,000. Once funds go over £6,000, your benefits are reduced.

It is not enough to look only at the balance of accounts, you must include money already spent. Expenditure from your personal account is assessed against a test of reasonableness for someone receiving benefits. It is not a generous test, so even though you have spent money, you can be treated as still having it. This is called notional capital.

This means, if you have already received an interim payment, you should not pay further compensation to yourself. Depending on how you spent the compensation money, you may well be treated as still having that money.

For someone who has not already received compensation and with personal funds well below £6,000, a once only transfer from the compensation to your current account can be made.

Once only, because regular transfers will provoke a benefit agency to object to the validity of the trust.

How much of the compensation can you transfer to yourself? Including the compensation you plan to transfer, you should stay as far below the £6,000 limit as possible. If you transferred £6,000 to yourself, even once spent, that money is very likely to be treated as notional capital. That would mean you would always be treated as having £6,000 and your total funds would often be over £6,000, which would reduce your benefit entitlement. If you must make such a transfer, take your existing funds into account and stay well below that £6,000 limit.

Think carefully about how you plan to use your compensation. I know it feels good to have money in your account, but do think hard about planned expenditure and buy direct from the trust account.

It is a matter of getting used to your money being held in a separate device. The rules take a little getting used to, but the benefits are obvious. You can keep and use your compensation and still receive means tested benefits.

Feel free to ask questions below.

Personal injury trust fund

I need a personal injury trust fund.

I am often asked how to set up a personal injury trust fund. The question is asked by people who are settling personal injury compensation claims and are worried they may lose their means tested benefits.

You will be relieved to know you can legitimately keep your benefits and compensation. What you must do is set up a trust to hold the compensation, often called a personal injury trust. The trustees then open a separate bank account, so the compensation is held separate from your personal funds.

A trust is created by a trust deed, a legal document, which states the purpose of the trust and appoints trustees to manage the compensation.

Benefit regulations allow compensation to be held in a trust, it being accepted compensated people have not won the lottery. Compensation has been paid for injury, financial loss and future needs. Provided you keep and use the compensation separate from your personal funds, in a trust, the compensation will be ignored when assessing your finances for benefits or local authority care. This is a generous allowance and should be used by all compensated people who currently claim means tested benefits, or who are likely to claim such benefits in the future. The same applies if you will need local authority care.

To help you decide if you need a trust read more here.

How much a trust will cost and how I can help is explained here.

Pros and cons of setting up a personal injury trust are explained here .

Help on personal injury trust 0330
Call 0330 223 1708 at land line rate

Do not be put off by the terminology. A trust is a device to hold the compensation. You are simply asking trustees to manage the compensation for you. You can be a trustee yourself. A trust for compensation is a positive legitimate arrangement, not a problem. Read more.

For help without obligation please call 0330 223 1708

Personal injury trust for Northern Ireland

Personal injury trust for those with personal injury compensation in Northern Ireland

Those living in Northern Ireland can set up a trust for personal injury compensation. I can prepare the trust for you. All information on this website applies to those in Northern Ireland and to the UK generally


There are some differences in the law and terminology between Northern Ireland and the UK generally, but this is not a problem. Scotland is more difficult, as not only the law, but the legal language, is different.


If you have received compensation from an accident or injury in Northern Ireland, or now live in Northern Ireland, a personal injury trust can be prepared for you at a fixed fee of £480 including VAT. You can see how I work here.

You will find an explanation of trusts for personal injury compensation and the benefit here.

Please feel free to call 0330 2231708  or 01392 314086 for a chat (both at landline rate)– no cost or obligation.

A personal injury trust is a positive thing, not a problem

A personal injury trust is a positive way to keep and use your compensation and benefits

A personal injury trust is a positive thing, not a problem.
A trust is created by a legal document, called a deed. Trustees are appointed and hold the trust fund. It is not complicated.
Benefit regulations allow you to keep receiving means tested benefits and hold and use your compensation. What’s not to like?
Use your benefits for the basic expenses, then use your compensation direct from the trust as you wish.
All you have to do is keep the compensation in the trust separate from your own money.
In return for keeping your benefits, this looks fair enough.
There is a lot of nonsense on websites about how to avoid setting up a trust. Using a trust is the only legitimate solution, the other solutions all involve fraud. Your compensation is not private as all compensation paid is notified to the Department of Work and Pensions under the compensation recoupment scheme.
The question I am most asked is, how can the compensation in the trust be used? The trust fund should not be used for the basics for which benefits are intended, beyond which the trust can be spent and/or invested in any way you could do so yourself.
I always advise the trust bank account and investments should be operated on the basis of at least two trustee signatures. That means a cheque book only account, which prompts questions too. Cheques are more useful than you might imagine. There will be purchases which require electronic payment, for which the trustees can authorise the use of a credit card and pay the credit card bill by cheque. That allows the trust to operate in the 21st century.
So, there you are. You have a legitimate way to keep receiving benefits and hold and use your personal injury compensation. The law makers accept a compensated person has not won the lottery, the compensation being paid for injury and financial loss, both past and future, so why should they be penalised. I think it is a generous law, so please don’t mess about with the fraudulent alternatives and take advantage of the generous legitimate route.

Protect Armed Forces Compensation Scheme payments with a trust

Compensation received under the Armed Forces Compensation Scheme can reduce or stop entitlement to means-tested benefits. The answer is to set up a trust for what is personal injury compensation. Continue reading “Protect Armed Forces Compensation Scheme payments with a trust”

Personal injury trusts and how I can help

Personal injury trusts – how I can help

My aim is to help you decide if a personal injury trust is right for you. I deal with most clients by telephone, email and letter and a meeting is rarely necessary. I will:

  • Help you decide if a trust for your compensation is right for you.
  • Agree a fixed fee so you know the cost – £480 including VAT.
  • Gather information and documents.
  • Prepare a trust deed.
  • Guide you through signature and witnessing.
  • Guide you in opening a bank or building society account for the trust.
  • Give notice to the agencies handling your benefits claim.
  • Explain how the trust should operate.

You really have helped us as we had absolutely no idea what we had to do and you have not only made it easy but removed a very very large amount of worry and made us feel better and that things have been dealt with correctly.

I hope you will find me to be flexible as I know you have other calls on your time. I am willing to talk out of office hours and I know many people can only email in the evening or at weekends.

Once I have the information I need I will send you a draft trust within a couple of days. Once agreed I will send the trust document to you by post and once signed you can set up your bank or building society account. I think it best you set up the account locally as the account should be run with only a cheque book and bank transfers if the signatories can visit a local branch.

As the trust is set up I will provide lots of information. Once this process is complete you and your trustees should confidently be able to manage your trust.

To help you decide if a trust is necessary if you do not claim benefits please click here and if you do claim benefits please click here.

For the points you must consider in setting up a trust and the information I will need please click here.

For help without obligation please call 0330 223 1708.

Personal injury trust

You can keep your compensation and still claim means-tested benefits if your compensation is protected by a personal injury trust.

Personal injury trust or special needs trust or compensation protection trust and protection of State means-tested benefits. All names used for a trust to protect personal injury compensation.

A trust will mean personal injury compensation is ignored when your finances are assessed for benefits and care. Here we help you understand protection of compensation with a trust.

When you receive compensation for a personal injury it can take you above the financial limits for means–tested State benefits, and affect your entitlement to local authority support for care. So be aware and look at the benefits you are receiving today, and just as important the benefits you may need in the future. Don’t just look at yourself as benefits are claimed by a family unit.Image shows personal injury trust deed to protect means tested benefits

It is worth repeating that you must also look at your care needs, both now and in the future, as a personal injury trust can protect compensation when local authority care is assessed.

A short-term decision may cost you dear.

Continue reading “Personal injury trust”

I do not claim benefits so do I need a personal injury trust?

I received a call from a lady who had just received a cheque for £20,000 compensation from a personal injury claim. Neither she nor anyone in her family were claiming means-tested benefits; but she intended to save the money for the future. Her compensation solicitors advised a personal injury trust was not necessary. Were they right or wrong?

Wrong is the answer I am afraid.Personal injury or compensation protection trust necessary to plan ahead

The advice was wrong because the circumstances of the family were only looked at over the short term. Continue reading “I do not claim benefits so do I need a personal injury trust?”

I may need a personal injury trust

Do I need a personal injury trust to protect my compensation and benefits

A personal injury trust is the only legitimate way to hold and use compensation and still receive means tested benefits. Such a trust is an opportunity to keep and use your compensation and receive means tested benefits.

The personal injury trust means your compensation will be ignored if you or others in your close family either claim, or need to claim, means tested benefits. The same applies if you require local authority care.

I continue to be surprised by the advice given to people receiving accident compensation about personal injury trusts. The advice presents a personal injury trust as an optional extra. A personal injury trust is vital in many cases and advisable in others.

Image shows trust deed for personal injury trust to protect means tested state benefits

Continue reading “I may need a personal injury trust”

How to set up a personal injury trust

Setting up a personal injury trust does not have to be complicated or expensive. I will offer a fixed fee in most case of £480 including VAT.

A personal injury trust is a trust which holds personal injury compensation. Benefit regulations allow personal injury compensation to be ignored, provided the compensation is held separate from your personal funds in a trust. A personal trust is perfectly legitimate.

I have set out all the points you must think about and the information I will need to help you.

The answer to the needs of compensated people in receipt of benefits or care is a bare trust to hold personal injury compensation. This is the simplest form of trust, is easy to manage, has no tax complications and allows the compensated person to retain a level of control. Provided you follow a few simple rules, you can use the trust fund with freedom.

Personal injury trust Mark Thompson Law Continue reading “How to set up a personal injury trust”

Pros and cons of setting up a personal injury trust

To help you make your decision, I have set out the pros and cons of setting up a personal injury trust. For this comparison I will deal only with a bare trust.

Pros:

  • Compensation ignored when assessing your entitlement to means-tested benefits.
  • Compensation ignored when assessing your entitlement to local authority funded care.
  • Compensated person can retain a level of control.
  • Compensation can be spent from the trust with few restrictions.

Cons:

  • Compensated person must not have personal access to trust fund.
  • Trust must have a separate bank or building society account.
  • The trust must have at least two trustees.
  • Trust bank account requires signature or approval of at least two trustees.
  • There is a cost in setting up the trust (not as much as you think).

The significant benefit of a trust for personal injury compensation is the compensation and income received into the trust fund are ignored when calculating your entitlement to benefits. There is no legitimate alternative to a trust for personal injury compensation.helping you decide if a personal injury trust is right for you

This is a very generous provision which accepts a payment following injury is not a windfall and is intended to cover an injury, plus past and future losses. To gain this significant benefit you should set up a trust and put up with the slight inflexibility involved in managing the trust fund. It is no more than a nuisance, but compare it to the advantages and the decision is clear.

If you are in receipt of benefits or care, or likely to be in receipt of benefits or care, a personal injury trust should be set up to hold the payment received in consequence of a personal injury.

Happy to have a chat without cost or obligation on 0330 223 1708.

A message for solicitors on personal injury trusts

Mark Thompson explains how to properly protect a claimant’s compensation

Your client is currently in receipt of means-tested benefits and is to receive an interim payment of £5,000. What should you advise?

Some might say that £5,000 is below the £6,000 allowed by most means-tested benefit tests, so protecting benefit receipt with a trust is not necessary. If this was your answer, please read on.

The majority of benefit entitlement is based on the Income Support (General) Regulations 1987. The capital to be disregarded is set out in Schedule 10, which has been changed on a regular basis. Paragraph 12A was introduced by Statutory Instrument 2006/2378 (at 5(11)(a) and (b)) which came into effect in October 2006. You do know this regulation, as it introduced what we know as the ’52-week disregard’.

So one reason why capital will be disregarded is:

‘12A – (1) Any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.

(2) But sub-paragraph (1):

(a) applies only for the period of 52 weeks beginning with the day on which the claimant first receives any payment in consequence of that personal injury;

(b) does not apply to any subsequent payment made to him in consequence of that injury (whether it is made by the same person or another);

(c) ceases to apply to the payment or any part of the payment from the day on which the claimant no longer possesses it;

(d) does not apply to any payment from a trust where the funds of the trust are derived from a payment made in consequence of any personal injury to the claimant.

(3) For the purposes of sub-paragraph (2)(c), the circumstances in which a claimant no longer possesses a payment or a part of it include where the claimant has used a payment or part of it to purchase an asset.

(4) References in sub-paragraphs (2) and (3) to the claimant are to be construed as including references to his partner (where applicable).’

 

Having digested this, readers may like to take another look at the question posed at the outset. Let’s say the £5,000 interim payment was received in January 2013, no trust was set up, and final settlement was in June 2014. Will a trust established in June 2014 protect the personal injury compensation from the means test? The answer is yes and no. There is no time limit on when a trust can be set up, but a trust set up in June 2014 will not protect the compensation received before the date of the trust.

I write trusts for compensation protection, and once notice is given to a benefit paying agency, it is now common to receive a list of questions. They ask when compensation was first received for this injury. The DWP in particular seem to think a trust must be put in place within 52 weeks. This is not correct, but this misunderstanding can create problems for your client if their benefits are suspended.

You could say the 52-week disregard is generous, as it allows time for your client to sort themselves out. They can receive the compensation, spend what they must, and set up a trust later. It can also allow us as advisers to relax. But on my reading of the rules, the 52-week disregard is a trap. The 52 weeks are there to allow a trust to be set up. The compensation is disregarded, but if it is spent before a trust is set up, the expenditure is analysed against the dissipation of capital rules. In the example above, if your client has blown the £5,000 they may well be treated as still having that amount which means their total funds exceed £6,000 and their benefits have been overpaid.

Points to note

I hope you feel satisfied you are not creating problems in respect of the 52 week disregard. It is also worth mentioning a few other issues that I have come across recently.

Spending compensation within the 52 weeks where no trust is established will not guarantee compensation is ignored. The agencies can look back and say the money was dissipated to allow a benefits claim. The agencies only disregard the compensation for 52 weeks, but it does not become invisible permanently. Simply advising your client to “blow” the money within one year of receipt is not safe advice for you or the client.

A payment made ‘in consequence of any personal injury’ will be disregarded if held in trust. There is no limitation on where and how the payment arrives. I suggest the disregard can include a payment from compensation recovered in a jurisdiction beyond our own, a travel policy, personal accident insurance or maybe medical or ill health retirement cover. Keep an open mind please.

Last but not least is the question you often ask at the end of a case, as you proudly present the compensation cheque to your grateful client. You might ask if your client is receiving benefits at the moment. If the answer is no, do you breathe a sigh of relief and put away your personal injury trust script? What about benefits they or family members might need to claim in the future, and what about the care they may need through a local authority? Quite small amounts of compensation tucked away for a rainy day can mean benefits and care may not be paid or subsidised until the compensation has been spent first.

Protecting your client’s compensation is just as important as claiming it in the first place.

Published initially in the Association of Personal Injury Lawyers PI Focus December 2014 Volume 24/Issue No. 10 and since updated.

Compensation protection trust

Compensation protection trust

Compensation protection trust is one of the names given to a trust designed to ensure that personal injury compensation is not taken into account if you claim means-tested benefits or need local authority support for residential care.

The term compensation trust is just a name given to this type of trust, others being personal injury trust and special needs trust. A special needs trust is something quite different but I include it here as it is often thought to be a trust for protecting compensation.

The regulations which contain the rules for benefit payment contain a list of items which are disregarded, or ignored, when working out your entitlement to benefits. There are two disregards for personal injury compensation and they both refer to personal injury compensation held in a “trust.” Only the word “trust” is used, not personal injury trust and not compensation protection trust. These terms are just names given to trusts so you know what they do, but they are names rather than actual types of trust. The regulations use the following phrase : “Where the funds of a trust are derived from a payment made in consequence of any personal injury…” It does not say personal injury trust or compensation protection trust, it just says trust.Compensation protection trust or personal injury trust

Please do not get bogged down in terminology. You need a trust to hold your compensation to protect it should you need to claim benefits or need financial support from a local authority for your care.

To help you decide if you need a trust and see how I can help please click here.

I am happy to chat without obligation on 01392 314086.

 

52 weeks to create a personal injury trust?

Is there a time limit of 52 weeks for setting up a personal injury trust?

There is no time limit within which a trust to protect compensation must be set up.

The best approach is to set up a trust to protect your compensation as soon as you receive the compensation. Continue reading “52 weeks to create a personal injury trust?”

I have received personal injury compensation and I claim means-tested benefits

Receiving means-tested benefits depends on the money held by you and those included in your claim. The usual barrier to a claim is holding £16,000, but if you hold more than £6,000 your benefit entitlement is reduced.

When you receive a sum of money you must inform your benefits agency which will decide if your entitlement to benefits should change. So if you have received personal injury compensation do you have any options? The factors to bear in mind follow.

When you make a personal injury compensation claim the insurance company receiving your claim must inform the Department of Work and Pensions (“DWP”) of the claim.

If you receive an interim payment or final settlement the insurer must inform the DWP.Help on personal injury trust 0330 223 1708

When you receive an interim payment or final settlement you must tell your benefit agency of the change in your financial circumstances.

Personal injury compensation will be disregarded for a period of 52 weeks, but take care and read on.

Some incorrectly say you can blow the compensation in that 52 week period. You can spend it, but if your benefits claim continues, how you spent the compensation will be scrutinized. If you are shown to have blown the money to allow you to continue claiming benefits you will be penalized. The compensation is not ignored permanently. The 52 week period is there to allow you to sort out your affairs and set up a trust, not blow the money and keep your benefits.

If you open a bank account or receive interest on a bank account the tax authority is informed and that information is fed back to the benefit agencies.

As we move into the Universal Credit system there will be more information shared between the various agencies of the government.

Unless you have a small sum in compensation, or legitimate ways to spend the compensation quickly, your only choice is to set up a personal injury trust. A trust to protect your benefits will give you time to stop and plan and use the compensation for what it was intended.

There is an inconvenience in a trust, as you need trustees and a separate bank account, but weigh this up against the benefit of keeping your benefits and the choice is easy.

Why aren’t there more personal injury trusts?

You can see from the questions I am asked there is a shortage of clear advice about compensation protection trusts, or personal injury trusts as they are better known. The banks and building societies often lack experience of opening accounts for trustees. This tells me that trusts are not being used where they are necessary. Continue reading “Why aren’t there more personal injury trusts?”

Who must I tell about my personal injury trust?

If you have received compensation for personal injury you must inform the agencies handling your claim for means-tested benefits. Help on personal injury trust 0330It is the change in your financial circumstances which makes notice necessary.

If I prepare a trust for you I will inform the benefit agencies you have received personal injury compensation and I have set up a trust for that compensation.

It seems to be the case that if a solicitor gives notice of a personal injury trust fewer questions are asked. The benefit agencies are entitled to ask questions, but the questions asked recently suggest the agencies are checking to see if the trust has been set up properly and in time. You may be asked to prove you have a separate bank account for the trust and that the compensation has been paid into that account. You may be asked the date of the trust, and the date of the first payment of compensation if you have had interim payments. You have no choice but to cooperate as the agency paying the benefit holds the purse strings.

The benefit agencies are starting to ask how the money in a trust bank account is accessed. If the compensated person is a trustee and can access the money directly there will be a very strong argument you have not got a proper trust.

“Benefits” such as working tax credit are more complicated. The “benefit” is managed by HMRC and your entitlement is based on your taxable income. Setting up a personal injury trust does not immediately change your taxable income. So I do not give notice of the establishment of a personal injury trust to HMRC, but when you next advise them of your taxable income you need to see if income from the trust has changed your entitlement. If there is a change then HMRC should be told of the trust and they should be asked not to take account of the income from the trust. This point is dealt with in greater detail if you click here.

If you have set up a discretionary trust to hold personal injury compensation then notice of the establishment of the trust should be given to HMRC. This is because a discretionary trust is taxed in its own right. A discretionary trust can be useful for personal injury compensation, but great care and advice must be taken to see if a discretionary trust has advantages for you.

Trust deed for personal injury trust for protection when claiming means tested state benefits

What personal injury payments can be protected by a personal injury trust?

A personal injury trust can protect most payments made in consequence of a personal injury

The regulations which govern entitlement to means-tested benefits tell us what sums are taken into account and which are ignored. Among those ignored are “any payment made to the claimant or the claimant’s partner in consequence of any personal injury to the claimant or, as the case may be, the claimant’s partner.”

The injury can be physical, psychological or psychiatric and need not be caused by a single physical incident.

So a personal injury trust can protect compensation for a personal injury plus many other payments “in consequence” of a personal injury. Here are a few examples, but this list is not complete:

  1. Compensation received from the Criminal Injuries Compensation Authority (CICA) for injuries caused by an assault.
  2. Compensation from the Motor Insurers’ Bureau for injuries caused by an uninsured or untraced motorist.
  3. Compensation for an accident which happened abroad.
  4. Compensation ordered by a criminal Court in respect of an injury you suffered.
  5. An Armed Forces Compensation Scheme award.
  6. Payments from other government compensation schemes.
  7. Charitable or public donations following an injury.
  8. Payments from insurance policies, for example accident or travel insurance.
  9. Payments from a Permanent Health Insurance policy made as you cannot work due to a physical or psychological condition.
  10. Payments from a professional negligence claim paid to compensate for a poorly handled personal injury claim.
  11. Some Employment Tribunal awards.

So you will see it is not just money from a personal injury compensation claim which can be protected by a personal injury trust. As I say the list above is not complete but allows you to see the breadth of protection available to allow you to claim benefits and local authority support for care.

If you are able to add to this list of payments in consequence of any personal injury please leave a comment below.

If you would like a chat without cost or obligation please call 0330 223 1708.

Teenager ran into road hit by car travelling within speed limit

A driver travelling below the speed limit can still be at fault

As a basic principle if a car hits a pedestrian the driver of the car will be liable for the pedestrian’s injury. The pedestrian must also take care when crossing a road, and failure to take care will mean a finding of contributory negligence against the pedestrian. That contributory negligence is expressed as a percentage, and compensation is reduced by that percentage. As I have said before, if the injury is serious a reduction of the compensation due to contributory negligence can prove very expensive. Continue reading “Teenager ran into road hit by car travelling within speed limit”

Qualified one way costs shifting

QOCS is the catchy shortened version.

Since 1 April 2013 a new concept has been introduced for personal injury cases. If a Claimant’s case fails the unsuccessful Claimant does not have to pay the legal costs of the successful Defendant, but if the Claimant wins the Defendant pays the Claimant’s legal costs.

That sounds pretty extraordinary as for as long as I can remember the loser in personal injury claims paid the legal costs of the successful party.

So where is the catch? It lies in the qualified bit, which means the concept is not as clear as it first looks. Continue reading “Qualified one way costs shifting”

Personal injury trusts and working tax credits

Most means tests for benefits look at your capital and income. Working tax credits is not a means-tested benefit. It is an adjustment to your earnings based on your income alone. So what protection is provided by a personal injury trust?

Help on personal injury trust 0330A personal injury trust does not protect you from tax, it only means the compensation should not be taken into account when assessing means-tested benefits.

If you are receiving another means-tested benefit you are automatically entitled to tax credit at the full rate. If you are only receiving tax credits, and no other means-tested benefit then income would normally be taken into account. But if the income is on an asset held in a personal injury trust and the income is paid into the trust, this income should not reduce working tax credits.

The answer lies in the The Tax Credits (Definition and Calculation of Income) Regulations 2002 . Follow the link and see paragraph 16 which excludes income “under a trust derived from a payment made in consequence of a personal injury…”

So that says if you can receive income from a personal injury trust, it will not be taken into account when calculating your entitlement to working tax credits. Good news for those who rely on working tax credit. There is a helpful note on the HMRC website which confirms this.

What you must do is include income received by a personal injury trust in your tax return. This applies if you have a bare trust, most personal injury trusts are bare trusts. You must also declare the income from the trust when applying for working tax credits, as if you do not the difference between your application and your tax return will be obvious. When declaring the income make sure you tell the Revenue about the trust and point to the Regulation above to explain why the income should not be taken into account.

I am happy to chat without obligation on 0330 223 1708

Time limits for compensation claim for industrial disease

Time limits can prevent a compensation claim for industrial disease.

A case for compensation following an accident is time-barred or out of time if Court proceedings are not commenced within three years of the accident. The date by which the Court action must be started is easy to identify if injury is caused by a one-off accident.Compensation claim and time limit limitation period and time barred

But if the injury is a condition or disease caused by long term working conditions the three year time limit still applies, but when does the clock start to run against a claimant? Continue reading “Time limits for compensation claim for industrial disease”

Best bank or building society account for personal injury trust

To create a trust for personal injury compensation you first need a trust deed. This is a legal document which creates the trust and appoints your trustees.

Once your trust document is complete the next step is for the trustees to open a separate bank or building society account to hold your personal injury trust fund. Your trust is created by a deed and the trustees then open a joint current account.

You cannot create a trust just by opening a separate bank account, you need to first create the trust with a deed. People sometimes turn up at a bank with a compensation cheque, but without a deed, and this is why confusion is created. I suggest you waste no time on banks before the trust deed is complete.

I recommend you open an account in a convenient local branch. I will recommend banks to clients on the basis of recent client experience. The trust account should be cheque book only, with at least two signatures required for a financial transaction, so there will be times when you need help at the branch.Bank or building society account wanted for personal injury trust Continue reading “Best bank or building society account for personal injury trust”

Should the NHS be paying care and treatment costs?

Should the NHS be paying care and treatment costs, and how can you question a decision?

The way to argue the point is to request a review of the decision of the NHS body which has  declined care under the NHS. If no decision was ever made, and it looks like the NHS should have paid the cost then a review will sort out the question. Continue reading “Should the NHS be paying care and treatment costs?”

Asbestos compensation can be won from a parent company

What if you worked for a company many years ago and were exposed to asbestos?

You contract an asbestos related industrial disease and seek compensation. You then find the company you worked for no longer exists, and the insurance policy it had for liability to its employees did not cover asbestos exposure. What are you to do?

The answer might be to check if your company was a subsidiary of another company.

The story in a case called Chandler v Cape PLC went like this. Mr Chandler worked for an asbestos manufacturer Cape Building Products Ltd which was a wholly owned subsidiary of Cape PLC between 1959 and 1962. In 2007 Mr Chandler discovered he had contracted asbestosis from exposure to asbestos dust. The problem was that by that time the employer company, Cape Building  Products Ltd, no longer existed. That is not a problem if the company was insured at the time of the employment, but here its employee liability insurance policies excluded asbestosis. The answer was to bring a negligence claim against Cape PLC, the parent company, on the basis it owed and had breached a duty of care to Mr Chandler.

The High Court found for Mr Chandler, and the Court of Appeal agreed. This is a powerful case for Claimants in asbestos and other industrial disease compensation cases.

Don’t get carried away though, as a close relationship between the companies must be proved. The Court of Appeal used these guidelines:

1) the business of the parent and subsidiary were in a relevant respect the same;
2) the parent had, or ought to have had, superior knowledge on some relevant aspects of health and safety in the particular industry;
3) the parent company knew the subsidiary’s system of work was unsafe, or ought to have known;
4) the parent had known or ought to have foreseen that the subsidiary or its employees would rely on the parent using that superior knowledge for the employee’s protection.

So what you must show is the organisations were one and the same, and the parent knew exactly what was going on in the subsidiary. So a very close relationship is necessary between the companies.

These cases are hard fought as insurance companies which received a premium, and companies using asbestos, many years ago are still paying out compensation for the long term damage done by asbestos. They are determined to bring their liabilities to an end, so every now and then test cases are run. If an appeal is possible I am sure Cape PLC will take their chance and run its argument again.

The trouble for Cape is that it was a company heavily involved in asbestos, with knowledge of its dangers. Setting up subsidiary companies to concentrate in different business areas may have made sense in business terms, but in legal terms it did not create a barrier to liability for injury.

The full case report is at http://www.bailii.org/ew/cases/EWCA/Civ/2012/525.html

The case title in the Court of Appeal is David Brian Chandler v Cape PLC [2012] EWCA Civ 525

Is there a safe speed for a motorcycle overtaking a stationary traffic queue?

If a motorcyclist is overtaking a line of traffic and hits a vehicle which pulls out of that line a claim for compensation will be defended. The argument is the motorcycle was being ridden too fast, or filtering was not safe.Traffic queues likely and motorcyle overtaking

Well I have a refreshing case to tell you about which might make the insurers think twice before arguing about speed and filtering. Continue reading “Is there a safe speed for a motorcycle overtaking a stationary traffic queue?”

Headway Devon Annual Regional Conference & Exhibition

Headway Devon are running their Annual Regional Conference & Exhibition

conference on  The Cost of Brain Injury  on Friday 19th October 2012

Venue: The Exeter Suite, Sandy Park, Conference Centre, Sandy Park Way, Exeter, DevonHeadway Devon annual regional conference and exhibition

The confirmed speakers are:

Continue reading “Headway Devon Annual Regional Conference & Exhibition”

Personal injury trusts and the cost of long term care

A personal injury trust can be a very good idea even if you are not receiving State means-tested benefits or local authority care. You must consider your situation today,  your situation in the future, and do exactly the same for those you claim benefits with.

A local authority must provide accommodation for vulnerable adults who fall outside the responsibility of the National Health Service. But the local authority can charge for the service if a person’s capital is between £14,250 and the upper capital limit which currently is £23,250.

If you need care and have received compensation for a personal injury, that compensation can be ignored in this capital assessment if it is protected by a personal injury trust. Setting up a personal injury trust is an obvious step if you are already receiving care. A trust can be just as necessary if you do not require care today, but may need it in the future.Personal injury trust help 0330 223 1708 Continue reading “Personal injury trusts and the cost of long term care”

Bradley Wiggins calls for law to wear cycle helmets

Olympic time trial gold medallist Bradley Wiggins wants cycling helmets to be made compulsory after a man was knocked down and killed by an official London Olympics 2012 bus just outside the stadium last night. The accident occurred just before the Bradley Wiggins press conference. The Tour de France and gold medal hero took the opportunity to add his views to the cycle safety helmet debate.Bradley Wiggins says all cyclists should wear cycle helmets

“It’s dangerous and London is a busy city and a lot of traffic. I think we have to help ourselves sometimes,” said Wiggins after the incident.

Asked for his views on cycling safety in the capital, Bradley Wiggins said:

“I haven’t lived in London for 10 to 15 years now and it’s got a lot busier since I was riding a bike as a kid round here, and I got knocked off several times. Continue reading “Bradley Wiggins calls for law to wear cycle helmets”

Child seat not of correct size

A sad case which explains the approach which will be taken by Courts where a child is not sitting in the correct child safety seat.

A child called Emma was sitting in the rear of her mum’s car. They were driving along quite normally when a car came towards them, came across the road, and there was a collision. The driver at fault died from his injuries. His insurers admitted liability.Child baby seat and accident Continue reading “Child seat not of correct size”

Cyclist rides from pavement into car’s path

A 16 year old cyclist was riding along the pavement came into the road and was hit by a car travelling in the same direction.

The accident occurred at about 8 p.m. The claimant had been to fetch his bicycle from a friend’s house. The road was a long straight road with one carriageway in each direction and with a speed limit of 30 mph. For some of the way a footpath runs beside the road and the claimant was riding along that footpath. Continue reading “Cyclist rides from pavement into car’s path”

Highway must be dangerous

Road accidents caused by roads in poor condition are not always easy to pursue against the highway authority. This might seem odd, but the highways are maintained by the State, so the State gets to set the standard.

Here is an example of a decided High Court case where a vehicle overtook on a minor road. The wheels on the driver’s side of the overtaking vehicle were caught in a series of pot holes which tramlined the vehicle. The road had no kerb stones at the edges. The driver steered sharply to the left but lost control and left the road on the left side. Miraculously the car being overtaken was not hit, but the occupants of the overtaking car came off badly.

So what must the driver of the overtaking car prove to show the highway authority is liable to pay compensation for personal injuries?

The Claimant was driving a Land Rover on a country road for which involved Devon County Council was responsible. Continue reading “Highway must be dangerous”

Pedestrian taking a risk pays in contributory negligence

There is a trend in Court decisions where a driver is found to blame, but the pedestrian, cyclist or motorcyclist involved is found partly to blame. That means they have contributed to their injury – contributory negligence.

The theme in these cases is risk taking. The driver should have seen you, slowed down and been ready to stop, but you should not have taken a risk.

A recent case explains the law nicely.

In the early hours two men were going home from the pub. They had been drinking but were not drunk. They had to cross a two lane carriageway close to a roundabout. They used a crossing, but it was not controlled by lights, and they did not have priority over cars. One man held back and the other crossed. A taxi was on the roundabout and was to exit into the road the men were to cross. The taxi hit the man who decided to cross.

The accident was analyzed to show what should have been seen by the driver and pedestrian, what speed was sensible for the taxi, and how both should have behaved. The Judge saw the facts this way:

  • The bypass is one of five roads leading into and out of a roundabout. The taxi entered the roundabout from a road almost opposite the entrance to the bypass. For the taxi driver the bypass was his third exit. The accident occurred on what was for the injured pedestrian the nearside lane of the bypass. Just before the impact the taxi’s speed was about 25 to 30 mph and within the speed limit.
  • The pedestrians had crossed the two lanes of the bypass which led into the roundabout and reached the “refuge” half way across it.
  • The Judge found that the driver should have seen the two men on the refuge by the time he was about 30 metres away from the refuge.
  • The judge found that it was likely that the second pedestrian deliberately waited for the taxi to pass, but the Claimant decided to run across the road. In the words of the Judge the Claimant “took a risk setting off when, unless the driver took some avoiding action, an accident was likely”. Implicit in this finding is a finding that the pedestrian deliberately took the risk of trying to cross the road in front of the taxi.
  • The taxi driver gave evidence that he saw from about 25 to 50 metres away only one person on the refuge, who must have been the pedestrian who waited. He first saw the man who crossed at the last moment in a position on the offside front of his car (right side). He braked and swerved to the right but was unable to avoid a collision.
  • The Judge found that the driver should at about the 30 metre mark have seen both men on the refuge. Even on the driver’s account of seeing only one pedestrian he should have taken his foot off the accelerator as a precaution against any untoward movement by that pedestrian. The judge concluded that “with a better look out, and a slight easing of speed I am satisfied that the accident would have been avoided” because the pedestrian would then have crossed the road in front of the taxi.

So there you have it. The driver was found to blame, but the pedestrian was found to have Pedestrian accident with car crossing roadcontributed by two thirds. That means the taxi driver was liable to pay compensation, but the compensation was discounted by two thirds to account for the blame of the pedestrian.

The Court of Appeal considered an appeal from the pedestrian, but turned it down. For an appeal to be successful the Judge must have got the law wrong, applied it incorrectly, or misunderstood the facts. No such problem was found so the appeal was unsuccessful.

There is a careful balance to be struck in these cases. The law takes into account the potential damage which can be caused by a motor vehicle, so places a heavy responsibility on drivers. The other side of the balance is that pedestrians who are shown to take a risk will have to pay the price of their own responsibility for their own safety.

You will find a motorcyclist filtering past queuing traffic winning his case, but being criticised in contributory negligence if you click here.

The case was heard in May 2011 by the Court of Appeal and is called Belka v Prosperini [2011] EWCA Civ 6

Source –BAILLI

 

 

Motorcycle filtering past traffic queue

Ben was riding a Derbi GPR50 motorcycle on the A143 in the Great Barton area. In his direction traffic was queuing because of road works ahead. He decided to overtake the queue, but ran into the front of a coach emerging from a side road to his left. He did not see the coach as his view was blocked by a tractor and trailer which had stopped so it would not block a side road. The coach driver had the same problem.

The coach was crawling to get a view of the road, at about 4 mph. Ben was riding at about 20 mph. Ben knew the road so knew there was a side road.

Most important was that Ben was riding with a friend. The friend hung back behind the tractor and trailer because he knew the side road was there.

The coach came out at an angle, which means nearside first into the road. Of course the turn had to be made but driving in this way put more of the coach into the road before the driver could see right and left.

The coach driver did not see the motorcyclist until they collided.

The primary responsibility was the coach drivers as the coach was being driven into a major road. The Judge decided that the motorcyclist was riding too fast for the situation, and he knew there was a junction.

The Highway Code has some wise words:

The Highway Code, Rules for Motorcyclists (83-88) states (at Rule 88):

“Manoeuvring …. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that divers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.”

The Highway Code on Overtaking (162-169) states (at Rule 167):

“DO NOT overtake where you might come into conflict with other road users. For example

  • Approaching or at a road junction on either side of the road
  • Where traffic is queuing at junctions or road works.”

The High Court Judge said 30 per cent of the blame lay with the motorcyclist.

The case is called Ben Woodham v J M  Turner trading as Turners of Great Barton and was heard in June 2011. The judgment is available by clicking here. This is the High Court judgment which was changed on appeal.

The case then went to the Court of Appeal, the insurers of the coach arguing the partial blame of the motorcyclist was too low.

The Court of Appeal decision was tougher on the motorcyclist.

It was clear the accident would not have happened if the coach driver had only waited until she had a clear view to her right; instead she had elected to proceed when there was no effective view.

Equally the accident would not have occurred if Ben had not, contrary to the Highway Code, chosen to filter up on the offside of the queue of traffic when the gap left by the tractor meant a vehicle might come out of the junction. Added to this his speed was too high for evasive action.

In respect of relative blameworthiness, it seemed that the motorcyclist was as much to blame for the accident as the coach driver. Both parties were fifty per cent liable for the accident

The injuries were serious in the case, so an appeal by the insurers made financial sense. They save 50 per cent of the compensation which would have been due to Ben had he been found blameless.

Remember each of these cases depends on its own facts. This case does not say that every motorcyclist who filters alongside traffic will be partly to blame. It says this motorcyclist was partly to blame. If you are involved in a motorcycle accident get in touch for the advice of an experienced motorcycle accident solicitor.

 

Horse and rider accident with campervan

Horse and rider in accident with camper van

I come across equestrian accidents as I operate in an area where horse riding is very popular. Take a careful look at the facts of this case and decide the case for yourself. Don’t worry as I will let you know the answer.

The case I will tell you about involved a 14 year old girl called Sally. Sally had been riding horses for seven years so was an experienced rider.

Sally and her friend, Hayley, had been out riding. To get back to their yard they had to ride from a bridleway across a road, and ride along it for a short distance.

The speed limit on the road was 60 miles per hour.

Hayley crossed first without problem. Sally had hung back to practise a jump so there was a gap between the two horses emerging from the bridleway.

The vehicle was a camper van with a trailer driven at about 40 miles per hour.

There were other drivers behind the camper van. One said he knew from experience that riders often rode in pairs so he slowed in case a second horse appeared. All vehicles slowed when the first horse appeared and crossed the road, but the camper van then sped up again.

Sally rode her horse out into the road at a trot and collided with the camper van. She had not looked before emerging from the bridleway, she made a mistake. Sally was injured.

So judge this one for yourself.

Despite the Judge finding Sally had made a mistake the answer is the camper van driver was found to blame. He was well within the speed limit, but was driving too fast to stop if a second horse emerged. He was probably driving too fast if he was going to overtake the first horse. The fact other drivers slowed and the camper van accelerated was very significant.

So the rider wins her case, but what about her own fault. The Judge said 50 per cent blame on the rider’s part.

This was a High Court decision which went to the Court of Appeal on the 50 per cent contributory negligence finding alone. To change the decision of a Judge the Court of Appeal must find the decision was not open to the Judge on the facts or law in the case, so the decision stood. The decision reflects the heavy duty on the driver of a vehicle which is a “potentially dangerous weapon.”

Every case is different and depends on its own facts. Please do not make a judgment on your own case and let an experienced personal injury solicitor help you.

For the full case decision in Stoddart v Perucca.

For other contributory negligence examples.

Image source – roadsafetysomerset.org.uk

 

 

Cyclist jumps red light and wins compensation

Cyclist jumps a red traffic light and still wins compensation – but only just.

An accident between a cyclist and a taxi car happened at a T-junction controlled by traffic lights. The taxi went across the junction on a green light when a cyclist who had jumped a red light came from his left. The cyclist was badly injured and could not say what happened.

The cyclist won his case for compensation, but he lost 80 per cent as he was found to have contributed to his injury – contributory negligence.

So how did the cyclist win his case in the first place?

The taxi was travelling between 41 and 50 miles per hour when the speed limit was 30 miles per hour. Speed is very important as the reaction, braking time and braking distance are much longer at 41 to 50 mph compared with 30 mph.

The cyclist was not wearing high visibility clothing. This was not a factor as it was the speed of the taxi which was the problem, rather than not seeing a darkly dressed cyclist. The speed limit should be seen as an indication that a driver is likely to come upon hazards and may have to slow or stop.

The other side of the argument is there would have been no accident had the cyclist not jumped a red light. There was also time for the cyclist to brake or swerve, but the evidence suggested he was not looking. It was early in the morning so maybe he thought the way would be clear.

The case illustrates the heavy duty on the driver of a vehicle which is heavy and fast, and likely to do more damage than a cyclist or a pedestrian. On this basis the driver was to blame, but the partial blame of the cyclist was put at 80 per cent. That means the cyclist who was seriously injured will only receive 20 per cent of the compensation value of his injuries and loss.

I have not seen a full transcript of the High Court Judgment but a summary is available by clicking here.

For interesting guidance from the Cycling Tourist Club please click here.

For other examples of contributory negligence please click here.

The answer in all cases is to seek good advice from a personal injury solicitor.

 

 

 

 

Child brain injury and rehabilitation

Rehabilitation can make a real difference in acquired brain injury cases, particularly for child acquired brain injury.

If there is a clear case for compensation rehabilitation can be provided through the Rehabilitation Code. The rehabilitation is paid for by the insurance company of the party to blame, and it works quite separately from the compensation case. The purpose is to concentrate on the best recovery from an injury at the earliest stage.

Attitudes vary about rehabilitation as some insurers do not think there is a benefit. Some solicitors are reluctant as they want to keep their cards close to their chests. My experience of rehabilitation tells me you should grab the opportunity. The best possible recovery is much more valuable than compensation.

As an example of what can be achieved with rehabilitation here is a video from The Childrens’ Trust Tadworth:

Cylcling helmets and compensation for cycle accidents

Cycling helmets

When I act for a cyclist involved in an accident I always ask if a helmet was worn. The reason is that failure to wear a helmet can be used to reduce your compensation after a cycle accident.

Cycle helmet for protection in bicycle accident

The law may agree you have contributed to the injury by failing to wear a cycle helmet. This is called contributory negligence. The car driver is at fault, or negligent, by pulling out in front of you and causing the bicycle accident, but you are partly to blame for not wearing a cycle helmet, if wearing the helmet would have reduced the injury. You will be judged to have contributed to your injury, a percentage will be attached to that contribution, and that percentage will be deducted from your compensation. This is over-simplified so do read on.

Continue reading “Cylcling helmets and compensation for cycle accidents”

Uninsured loss

Uninsured loss

Uninsured losses are those items of expense which are not covered by your own insurance policy. They usually crop up after a road accident.

If you have third party cover you only have cover for the damage you do when you are at fault. That means everything else is an uninsured loss. If you have comprehensive cover the uninsured losses will be every expense except the vehicle, subject to payment of any policy excess.Expenses add up after a car or motorcycle accident Continue reading “Uninsured loss”

Legal cover and legal protection

Legal cover or legal protection are terms used for legal expenses insurance

Legal expenses insurance is designed to allow you to bring a compensation case without worrying about having to pay legal costs. I think of it as allowing the client to sleep at night not worrying about legal fees.

Legal costs are the fees of your own solicitor and the solicitors who represent the Defendant, plus the expenses the solicitors incur such as medical fees, police report, and barrister fees amongst others.

Many people have bought legal expenses insurance as an add-on to another policy. It is worth taking the time to understand how it works.You should not have to worry about legal fees
Continue reading “Legal cover and legal protection”

Changes to personal injury compensation claims

Why are changes coming to personal injury compensation claims?

The insurance industry lobby has won its argument that too many people are claiming compensation or personal injury and that the legal costs they pay are too high. If you do not change the rules insurance for drivers and employers will become even more expensive.

I do not agree with the arguments of the insurance industry but congratulations to them for persuading the politicians. Despite the country facing a major financial crisis the politicians are dedicating huge amounts of time to personal injury compensation claims.

The changes likely are:

  1. Legal aid will be more limited than it is today.
  2. If your lawyer is working under a conditional fee agreement, or no win no fee as it is called, the success fee will no longer be recovered from the other side. If solicitors and barristers want their success fee then the client will be paying it.
  3. If you buy after the event litigation insurance you will pay the premium win, lose or draw. To day you can recover it with your solicitor’s fees, expenses, and success fee.
  4. The reasons for these changes are the insurance industry complains it is costing them too much money, and the politicians believe someone claiming compensation should be at some financial risk.
  5. The risk of a claimant paying the other side’s costs if a case fails is to be limited. There may be no liability to pay those costs at all, or a financial limit may be set, and this may depend on how much money you have. Continue reading “Changes to personal injury compensation claims”

Paying the cost of personal injury claim

Paying the cost of a personal injury claim

Today a claimant bringing a personal injury compensation case can be protected from the risk of paying the other side’s fees if the case goes wrong and you have to pay legal costs. This risk can be covered by legal expenses insurance, trade union support, by having legal aid in the few cases for which it is available, and after the event insurance. Continue reading “Paying the cost of personal injury claim”

If you worked with asbestos keep a record

I recently met an old friend, David Carter, who remains a great friend and representative to all those who worked in the Devonport Royal Dockyard at Plymouth. He has long been an adviser to those who have suffered the consequences of asbestos, in his trade union position before retirement, and as a helpful friend since.

David wrote to the local papers with some very sensible advice to those who have worked with asbestos. He suggests you keep a written record of your employers and the work you did which exposed you to asbestos. He has in mind someone who suffers an asbestos disease many years after their employment. To gain compensation the first question will be where did you work, the dates, and how were you exposed to asbestos. Making a record today will produce a better record than your answers in twenty years time. Your record also makes it easier for your family to take action if you are too ill to help.

It is sad to be offering such advise, but it is very good advice. My experience of asbestos compensation cases is that the asbestos injury is made a little easier by the knowledge that some financial security will be left behind for the family. So make that employment record now following David’s advice below. If you do it will make winning compensation easier and quicker.

The full text of David Carter’s letter was printed in the Plymouth Herald with the headline:

“In time, nobody will remember us Yardies

It was in the late 1970s, after much trade union pressure, that the Ministry of Defence began an investigation into the possible health hazard of asbestos dust inhalation by employees working on ships under refit or repair.

The main activity of the investigation was at Devonport Dockyard. It happened to coincide with the latter part of a four-year modernisation of Ark Royal, in my view the last true aircraft carrier, with steam boilers, turbines and fitted with aircraft catapults and arrester gear.

My personal association with asbestos insulation started in 1947 as a 15-year-old apprentice, on a conducted tour of a ship in refit, walking through a messdeck where a painter was spraying asbestos material on the shipside. I was told the process was called SLA (sprayed limpet asbestos). The problems with dust occurred years later when SLA was removed in an uncontrolled manner, and the men, supervisors and managers were unaware of the dangers. Time has shown that asbestos disease has no respect of rank or authority.

So this letter is directed at men who are aged over 50, who once worked in the dockyard and may have been exposed to asbestos dust. I am not advocating any form of compensation claim, but I am strongly advising each of you should put pen to paper and record where you were working, what ships you remember working on, the names of your supervisors and the names and addresses of any living workmates. Sign it in the presence of a witness who should also sign, date and add an address. Then put it away in a place of safety. Don’t leave it for somebody else to do, remember there were 16,000 of us working in the yard during the Cold War years.

In time nobody is going to remember us and there are very few individual records in existence.

DAVID CARTER”

Pedestrians at risk from falling trees

The danger of falling trees and branches

The danger from falling trees

We look at trees as a benign benefit of nature, but when they fall the consequences can be awful.

The law approaches fall trees or falling branches as it does most things, by saying those responsible for the tree must take reasonable care to avoid accidents. The law rarely demands an absolute guarantee; it demands only that reasonable care be taken to avoid likely injury. That is the balance between those responsible for something, such as a tree, which can cause injury, and those walking beneath it who could be injured. Continue reading “Pedestrians at risk from falling trees”

Pedestrian road accident

How careful must a driver be?

Children playing in street – take extra care

Where a pedestrian is struck by a vehicle the driver of the vehicle is usually to blame for failing to take reasonable care. As ever there are arguments of contributory negligence against the pedestrian.

The driver is not always to blame as in a case where the pedestrian could not have been seen and gave the driver no chance to stop. Contributory negligence allows for the range of fault between driver and pedestrian. Continue reading “Pedestrian road accident”

Liability is admitted

Liability is admitted – can I relax?

The defendant has admitted liability, or the insurance company for the Defendant has admitted liability.

Admitting liability is quite common in personal injury compensation case. The Claimant and their representatives relax as the fight is cancelled, and all that is necessary is to sort out the compensation.

What might surprise you is that an admission made before Court proceedings can be withdrawn. Court rules are in place to mange the position where the parties do not agree to the withdrawal of an admission of liability. A further surprise is that a Defendant withdrawing does not have to show that new evidence has been discovered. Continue reading “Liability is admitted”

Referral fees – the truth

The truth about referral fees

This page is only of historical interest now, as referral fees cannot now be paid by solicitors for personal injury cases since 1 April 2013.

There are so many headlines and so few facts about referral fees in personal injury compensation cases.

Payment of fees and commissions for the introduction of business have always been a fact of business life in general. A referral fee is a payment for the introduction of a client.

Referral fees really took off in the personal injury field after legal aid was replaced by conditional fee agreements, or no win no fee as they are called. To “compensate” for removing legal aid solicitors were allowed to charge a success fee to reflect the risk they ran of not being paid if the case lost. Continue reading “Referral fees – the truth”

50/50 50:50 50-50 fifty fifty

50/50 50:50 50-50 fifty fifty

50/50 is a term used where it is thought the blame for an accident is equally shared between those involved.

The term is often used by insurance companies who want to reduce the payment they should make. In law very few cases are truly 50/50, but it is a term too often used in negotiation.

A 50/50 settlement might be suggested where there are no independent witnesses, where it is your word against the word of someone else. You might well be believed in Court, and the other person’s evidence rejected, but the insurance company are not keen to pay the legal costs of finding out. In truth, if you risked paying the legal costs, you might feel less strongly about the fight. Continue reading “50/50 50:50 50-50 fifty fifty”

Gratuitous care in compensation claims

Gratuitous care

If you have cared for the victim of accident or injury and the victim is entitled to recover compensation then a claim may be made for gratuitous care.

Gratuitous care means care and attention above and beyond what might usually be expected within your existing arrangement. Gratuitous care does not mean nursing, it means looking after someone, being there to fetch and carry, visiting at hospital, and driving or travelling with the accident victim to medical appointments. These are examples of things you might reasonably do for someone else. If that someone else has a claim for compensation then the gratuitous care you provided can be added to that claim. You cannot make a claim in your own right, so the care has to be compensated through the claim of the injured person. Any compensation recovered is held for you by the injured person after their claim for compensation is successful.

How is gratuitous care calculated? Continue reading “Gratuitous care in compensation claims”

Mesothelioma – environmental risk of asbestos

How much asbestos exposure to prove mesothelioma compensation case?

Mesothelioma is a cancer caused by asbestos. Unlike most asbestos related conditions such as pleural plaque, diffuse pleural plaque, and asbestosis, the cancer called mesothelioma can be caused without a good deal of exposure to asbestos. There is often a period of many years between exposure to asbestos and the diagnosis of mesothelioma. The law has wrestled with the proper principles to apply in such cases. A level of pragmatism has been applied as it is not always possible to look back 30 or 40 years and identify where the exposure to asbestos occurred, and the extent of that asbestos exposure. Continue reading “Mesothelioma – environmental risk of asbestos”

Industrial deafness in the workplace

Industrial deafness still common workplace injury

Industrial deafness as a workplace injury has been a known risk for many years.

The problem of industrial deafness, and how to avoid it, has been known to employers for many years. As long ago as 1963, that is 48 years ago, employers were informed by the then government of the danger. The guideline “acceptable” level of noise was a compromise between what could be achieved with the equipment installed in factories, and the safety of employees. So even at or below the “acceptable” noise level people could still suffer industrial deafness, but in theory the level of exposure meant a lower level of deafness. The compromise was to reduce the noise level for workers, but not to do it overnight to avoid too much immediate expense. Continue reading “Industrial deafness in the workplace”

Compensation recovery scheme – recoupment

Compensation recovery scheme

State recovery of benefits paid after accident or injury – recoupment of benefits

The State can recover benefits paid after accident or injury if the person injured brings a successful claim for compensation. Recovery is only possible if the compensation case is successful, as the Government cannot bring a separate action.

The benefits are recovered from the “compensator” which means the insurance company or Defendant who has to pay compensation. Let us explain how this works. Continue reading “Compensation recovery scheme – recoupment”

Interim payment in personal injury

Interim payment in a personal injury case

An interim payment is a payment on account of the compensation you are likely to receive in your claim for compensation.

After an accident your earnings may be reduced or even stopped. You may have to incur expenses to ensure recovery from injury, or to repair a damaged vehicle or property. Personal injury cases can take time and an interim payment could be the difference between feeling you have to accept a quick low settlement because you are broke and getting a proper compensation payment. If you have a good case for compensation after an accident you should not be in this position.

You should not be forced to settle your case too cheaply because you are short of money as a result of an accident. The purpose of an interim payment is to level the playing field  between you and the Defendant, often backed by an insurance company, who has caused your accident. Sometimes insurance companies will try to drag out a settlement to increase the financial pressure on you to accept a low offer. You should not be in this position and let us tell you how interim payments are meant to work.

Continue reading “Interim payment in personal injury”

Legal expenses insurance according to Consumer Focus

What does legal expenses insurance mean to you?

Consumer Focus set out to see what legal expenses insurance means to you.

Legal expenses insurance, sometimes called before the event insurance, is sold very effectively, but not explained well in my opinion. Most people are sold this insurance when they insure vehicles, and you often see it included in other insurance sales, household insurance being a good example. Look for it in your next policy renewal, as you usually have to deselect it if you do not want to buy. We will explain how legal expenses insurance works. Continue reading “Legal expenses insurance according to Consumer Focus”

Accident compensation claims repay NHS

The cost of motor insurance and the NHS factor

If you bring a successful compensation case after an accident which involves an insured vehicle the Government can reclaim the cost of NHS treatment from the insurer of that vehicle. You might be surprised to learn how much money is paid across to the NHS from our insurance premiums.

The insurance industry is running a campaign which targets the fees paid to claimant lawyers. This campaign has been shown to be untrue in the findings of the House of Commons Transport Committee. Fraud, young drivers, and referral fees paid within the insurance industry were some of the main factors which increased insurance premiums according to the Committee.

Something which was not raised by the Committee was the fact the Government wants its money back in the event of a road traffic accident, an accident at work, an accident resulting in a public liability claim, or product liability. The Government point is that money has been paid out due to an accident which is someone’s fault. That someone, or more accurately their insurance company, should pay back the Government’s money. We hear complaints about a claims culture, but our Government is already on the case and claiming back its own spend. Let us tell you more. Continue reading “Accident compensation claims repay NHS”

Rehabilitation after accident

Rehabilitation in personal injury compensation claims

Why and how rehabilitation can work for you

You will appreciate from other pages of this site that my aim is to achieve maximum compensation for my clients. I also try to gain the maximum benefit from the Rehabilitation Code.

Compensation is designed to put you back in the position you would have been had the accident not happened. Think of it as a glorified expenses claim, with a not very generous amount on top for the injury. Compensation does not make you better off, and it often takes time to complete a case. It is here that the Rehabilitation Code has an important part to play. Make sure you are getting the maximum benefit from rehabilitation paid for by the insurer of the party to blame for your accident. Continue reading “Rehabilitation after accident”

Employers’ liability for personal injury at work

Employers’ liability

Workplace accident claim

The case if Vaile v Havering London Borough Council is case is a good example of a workplace accident claim. The decision is based on the law of negligence.

Negligence is the failure to take reasonable care for those who may be affected by your action or inaction, which causes loss and injury. Remember the law only demands reasonable care, which is a mile from a guarantee of safety. An employer should stop and think about what it asks of its employees. A description of the case will help you learn more about accidents and injury at work. Continue reading “Employers’ liability for personal injury at work”

Personal Injury accident at Work

Personal Injury at Work

How to avoid accidents and injury at work

I started my career as a personal injury solicitor working for those who suffered personal injury at work. What is striking is that although the law has been changed to make the workplace safer, attitudes have not altered.

A company is a financial vehicle designed to produce profit. That aim which we all understand clashes with the need to have a completely safe workplace and avoid workplace accidents. That balance is dealt with by the use of reasonable or reasonably practicable in the various laws which apply. Let us explain how the law deals with this difficult balance for those who suffer personal injury at work. Continue reading “Personal Injury accident at Work”

Workplace accident claim

Workplace accident claim

Workplace accidents are avoidable which means accidents at work should not happen. Compensation can be claimed for the consequences of a workplace accident.

The workplace must be risk assessed to avoid accidents and injury at work. If a proper assessment is carried out why do accidents still happen.

If you would like to discuss an accident at work please contact us for a chat without obligation.

For more information please read on. Continue reading “Workplace accident claim”

Transport Committee – report on rising insurance cost

Report of transport committee of House of Commons

11 March 2011

I am pleased to bring you the Committee findings as I was one of those who provided evidence.

Fraud is one of the main factors driving up the cost of motor insurance, says the cross party transport committee of the House of Commons. Wider access to justice should not provide a licence to make false personal injury claims under car insurance policies. A dedicated police unit – paid for by the insurance industry – should be established to tackle this escalating problem.

Let us tell you more. Continue reading “Transport Committee – report on rising insurance cost”

Health and safety and common sense

Carelessness and the lack of forethought cause accidents and poor medical treatment, not compensation.

Health and safety should be common sense

Our Government is very concerned about health and safety, as well as the compensation culture, claims management companies, and no win no fee advertising.

In a review published as “A report by Lord Young of Graffham to the Prime Minister following a Whitehall‑wide review of the operation of health and safety laws and the growth of the compensation culture” the only statistics shown told us major injuries at work are declining. The only graph in the report is at page 44.

The report is extraordinary in many ways. It is “a Whitehall-wide review” based more on perception than fact, and we would like to tell you more. Continue reading “Health and safety and common sense”

Motor insurance premiums rising

Motor insurance premiums are rising sharply

On Tuesday 9 November 2010, the House of Commons transport committee is to ask the insurance companies why insurance premiums are rising.

The media reported premiums have risen 51% in the past 12 months. This is the biggest increase since records have been kept in 1994. The effect depends on your risk profile, the greatest rise being in premiums for young males. Ian Crowder of the AA is reported to say “For every £100 taken in premium over the past year, £123 has been paid out in claims.”

There is a war of words and statistics raging at the moment. The Government is soon to make up its mind how it feels about compensation, insurance companies, their premiums, and the fees of personal injury lawyers.

My position on any such debate is you must tell the whole story. Lobbying on the basis of sound bites does not allow a true understanding, and will not produce the right balance. Let me explain the whole picture for you. Continue reading “Motor insurance premiums rising”

Local authority care

The Court of Appeal was asked to decide if a public authority exercised its decision making powers correctly.
The point at issue was whether the Council could change the help it gave without a change in a person’s circumstances.

Should local authority pay for care?

Understanding how local authorities make decisions as to entitlement to care is not easy. So a case before one of our higher Courts which examines the question is a great help. An important case about local authority and payment for care came before the Court of Appeal through an application for judicial review. The Court was asked to decide if a public authority exercised its decision making powers correctly.

The point at issue was whether the Council could change the help it gave without a change in a person’s circumstances.

The case involved Elaine McDonald, 67, a former Scottish Ballet principal. We would like to tell you more. Continue reading “Local authority care”

Identifying risk of injury to employees – protective equipment

Explanation of employer’s duty to prevent risks and protect by use of personal protective equipment – gloves in this example.

Preventing accidents and injury at work

I have explained in other articles how the law looks at prevention of accidents and injury at work. Some years ago lawyers acting for Claimants had to try to prove an employer should have been aware of a hazard, and should have protected its employees. The law used the benefit of hindsight to see how an accident or injury at work could have been avoided.

Much of the law is now based on regulations which impose a duty to risk assess before a task is undertaken. Prevention rather than cure seems to make sense. It is this process of risk assessment which has got a bad name by those who shout about the claims culture.

What is wrong with demanding that a job be properly assessed before asking an employee to do it? Employees are not guinea pigs testing a work process to see what might go wrong. Continue reading “Identifying risk of injury to employees – protective equipment”

Compensation culture – do we have one?

Lord Young admitted that the “perception” of a growing compensation culture was not wholly supported by the facts, although the NHS Litigation Authority had seen a 10 per cent annual rise in claims during the last two years.

Compensation culture – have we got one?

Lord Young has been put in charge of reviews in of compensation and health and safety.

He has already answered my question in a report in the Financial Times on 15 October 2010:

Lord Young admitted that the “perception” of a growing compensation culture was not wholly supported by the facts, although the NHS Litigation Authority had seen a 10 per cent annual rise in claims during the last two years.

So there you go, the man in charge says the fear of a compensation culture is not supported by the facts. The fuss is created by tacky advertisements by solicitors and middle men, and by the difficulty that some organisations and events experience when trying to get insurance. Continue reading “Compensation culture – do we have one?”

More confusion for asbestos victims

Who should pay for asbestos injury?

Many headlines and reports were written about an asbestos decision made in The Court of Appeal on 8 October 2010.

The case was called the employers’ liability “trigger litigation.”

The issue was whether an insurance company should pay compensation for the employer found liable for the injury based on the time the injured person was exposed to asbestos, or the date when the injury starts to become apparent, for example when a tumour actually starts to develop. That is a very important question for the insurer, and very important for those injured by exposure to asbestos. Continue reading “More confusion for asbestos victims”

Complaints and the Legal Ombudsman

How the Legal Ombudsman will approach resolving complaints

From 6 October 2010 the Legal Ombudsman will play a significant role in resolving complaints about legal service, and solicitors must tell their clients about the right to complain.

The Legal Ombudsman has stated that they will take a different approach to resolving complaints from their predecessors but what will this mean in practice? The guide we have set out provides a summary of the rules under which the Legal Ombudsman will handle complaints, the remedies available to it and the fee it will charge for handling complaints. This guide is based on the Legal Ombudsman’s scheme rules. Continue reading “Complaints and the Legal Ombudsman”

Contributory negligence examples

The concept of contributory negligence is based on a claimant being partly responsible for the damage. The clearest example is a car driver who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage – the injury.

Contributory negligence needs some explanation.

Contributory negligence is sometimes called partial fault, but this is confusing. The concept is based on a claimant being partly responsible for the damage. I am asked about 50:50 offers to settle personal injury cases. They are usually just compromise offers which have no real basis in law.

seat belt and contributory negligence

A good example to start with is a car driver or passenger who does not wear a seat belt. Not wearing the seat belt does not cause the accident, but it contributes to the damage (the injury in this example).  Another example is where an employee has failed to wear safety equipment. An accident occurs for other reasons, but the failure to wear safety equipment contributes to the injury, not the accident. If this claim is upheld by the court, the employer can suggest that any damages awarded to the complainant should be reduced by an amount that represents the portion of the blame assumed by the employee. If a claimant is found to have contributed by 20 per cent, that same 20 per cent will be deducted from the compensation received. Continue reading “Contributory negligence examples”

Tracing insurance company – industrial disease

Tracing employers’ liability insurers

The need to trace the employers’ liability insurer of a company arises when a personal injury claim is to be made based on employment many years ago. Cases involving asbestos exposure and industrial deafness are the classic example.

If the employer company no longer exists, then the usual route is to track down their insurance company at the time. A Court will usually agree to restore the company to the “record” as the process is called, and the insurer will pay any compensation found to be due. No problem you might say, but what if you cannot find the insurance company. Continue reading “Tracing insurance company – industrial disease”

Work at Height Regulations 2005

Safety when working at height

Historically most personal injury cases were based in the law of negligence. Negligence is the failure to take reasonable care to avoid likely injury. Over recent years health and safety regulations have been brought into effect. These are European regulations which become part of our law.

The difference between negligence and these regulations is that rather than a rather vague law of carelessness, we now have a very specific set of regulations. A good example is the Work at Height Regulations 2005.

ladder safety work at height regulations

The Regulation starts by saying you should avoid work at height. Avoid the hazard in the first place is the starting point. You must then assess the safe way to undertake a task, that assessment must be undertaken by a properly qualified person, and all involved in the work must be trained. Health and Safety is sometimes seen as a joke, probably by those who do not work at height.

A recent case in the Court of Appeal is a good illustration of the Work at Height Regulations in operation. Continue reading “Work at Height Regulations 2005”

Motorcycle filtering through traffic

Motorcycle, scooter and moped filtering in and past traffic

Filtering through traffic is one of the many advantages of riding a motorcycle, a scooter, or a moped. The downside is that it is one of the most dangerous things you can do. Drivers fail to see bikes at the best of times, let alone when you are approaching in a way they do not expect. Drivers who ride motorcycles understand, but drivers who only drive are constantly surprised by what riders can do, and they fail to take that into account. They do not think bike, or bicycle for that matter.Image shows motorcycle filtering through traffic Continue reading “Motorcycle filtering through traffic”

Complain about a solicitor

Complain about solicitor

You might think this an odd topic for a solicitor’s website. I take the view we should be as open as possible about problems, and the Law Society seems to agree. I will set out why complaints are made, and how they ought to be dealt with.

Sometimes the job does not go right, but the usual reasons for complaining are caused by poor communication. At the outset of work a solicitor must set out in writing what is to be done, with an estimate of the time and cost involved. That should not be difficult, but it can sometimes be vague. The client goes away from a meeting thinking everything is clear, the letter is vague, and immediately you are on course to an unhappy relationship with your solicitor.

We are not a nation of people who complain, but sometimes you have no choice. Continue reading “Complain about a solicitor”

Pleural plaques

Pleural plaques

The inhalation of asbestos can cause disease in the lung tissues themselves and in the thin surface membranes that cover the lungs – the pleurae. Pleural plaques are discrete localised areas of fibrosis that typically affect the lining of the inner chest wall (the parietal pleura).

They arise from exposure to asbestos. To all intents and purposes pleural plaques currently found in the British population have been occupationally caused (in contrast to some parts of the world where environmental exposures to asbestos cause an important background incidence of plaque formation).

The degree of exposure sufficient to cause pleural plaques is much lower than that required to cause asbestos-related disease of lung tissue (for example asbestosis), and plaques are widely accepted to be the commonest medical manifestation of asbestos exposure in the population at large.

lung x ray pleural plaques Continue reading “Pleural plaques”

Recovering cost of hospice care in asbestos compensation case

DAMAGES — Personal injuries — Hospice care — Deceased contracting lung cancer from exposure to asbestos in course of employment with defendant — Deceased’s estate seeking damages against employer and including claims on behalf of children, grandchildren and great grandchildren — Claim including costs of care incurred by hospice in providing gratuitous palliative treatment to deceased — Whether recoverable

In personal injury cases it is possible to recover for the care provided to an injured person. This care is usually provided by family members, and is care above and beyond what would normally be provided. The law gives it the name “gratuitous care.”

The calculation of gratuitous care is based on the hours of care provided multiplied by a non-commercial care rate. The rate is intended to represent the actual cost of paying someone to provide the care less the profit margin. In very rough terms, if the commercial rate in your area is £9 per hour, you could claim £6 per hour for the gratuitous care.

Any compensation recovered under the heading of gratuitous care is held in trust for the person who provided the care.

A clever extension of this principle was argued in a recent case where the care had been provided by a charitable hospice. The Judge saw the care from the hospice as similar to the voluntary care provided by a family member, and took the view any compensation recovered would be held in trust for the hospice. Continue reading “Recovering cost of hospice care in asbestos compensation case”

Third party capture

Third party capture

Third party capture is the name given to a practice operated by some insurance companies after road traffic accidents. They know their own driver is at fault so the insurer will contact the innocent party direct, before that person has time to seek their own advice. The third party, that is the person not responsible for the accident, has been “captured.” Continue reading “Third party capture”

Google sued over walking directions

Woman sues Google over Utah walking directions

I came across a news report about a law suit in the United States against Google complaining its Google Map had given an unsafe pedestrian route.

Extract from the report of 1 June 2010 reads:Image shows pedestrians crossing road

Salt Lake City — A pedestrian injured by a motorist while following an online route has filed a lawsuit claiming Google Inc. supplied unsafe directions. Continue reading “Google sued over walking directions”

Choose a solicitor

When choosing a personal injury solicitor you should make a personal choice. Your personal injury solicitor will have to understand how an accident has affected your life, your family life, and your work. Your finances will have to be discussed, and more than likely your medical records. All quite personal stuff, so a personal choice has to be made, not an internet comparison.

Choose a solicitor

Choosing a solicitor to represent you is an important decision.

Like so many areas this decision is helped by information you can gather on the internet. Comparing insurance quotes is now pretty quick and straightforward. Finding the cheapest television is now so much simpler. Before choosing a solicitor in this way you should think about what you are actually looking for. Continue reading “Choose a solicitor”

Referral fees

Referral fees are paid by solicitors for instructions

What are referral fees?

You will read and hear about referral fees in the media.

A referral fee can be paid by a solicitor in return for being put in contact with a client. Referrals are made by estate agents, banks, building societies, insurance companies, insurance brokers, and a whole host of other agencies. They are being paid a fee for introducing legal work to a solicitor. It is quite usual in the conveyancing and personal injury fields of law.

These referral fees are perfectly legitimate but in certain instances the payment of a referral fee and the amount must be made known to the client. Referral fees between solicitors do not have to be made known to a client, but if a referral fee is paid to a non-solicitor introducer then the payment should be made known, and in writing. Continue reading “Referral fees”

How is a personal injury solicitor paid?

How a personal injury solicitor is paid and how to protect yourself from costs awards

How are personal injury solicitors paid?

There should be no mystery about how a personal injury solicitor is paid for the work carried out in your personal injury claim for compensation. You as the client must be given detailed advice.

Please note this page applies to personal injury cases with funding arranged before 1 April 2013. Funding means that agreement as to how you will pay your solicitor and deal with the risk of paying the other side’s legal costs has been finalised. For cases funded beyond 1 April 2013 do read this page for general guidance, but then click here as the law has changed quite significantly.

The basic cost is an hourly rate multiplied by the time spent on your case. Most personal injury solicitors will follow the Guideline Rates set by the Advisory Committee on Costs. These are based on the experience of your solicitor and the cost of practising in the various regions of the country, London being more expensive than Exeter for example .

A solicitor’s bill is made up of a charge for their time, plus VAT, and the expenses incurred on your behalf, known as disbursements. For these purposes I will put all those terms together and call them solicitors costs. Continue reading “How is a personal injury solicitor paid?”

Inquest representation and public funding

Representation at an Inquest and the cost

A very useful article appeared in the Law Society Gazette on Monday 17 May 2010 by Azmina Gulamhusein

The charitable organisation INQUEST has criticised the current inquest system because ‘there is no equity of arms in terms of legal funding’. While public or commercial bodies involved in an inquest invariably have legal representation, bereaved families can only obtain funding from the Legal Services Commission (that means legal aid) to cover advocacy at the hearing in exceptional cases. This leads to an unfair disparity between the parties, which was highlighted in the recent case of R (on the application of Humberstone) v Legal Services Commission. Continue reading “Inquest representation and public funding”

Care and carers

Who cares for the carer?

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. Continue reading “Care and carers”

Child head injury

Head injury and children

I acted for a family, two of whom died in a road accident. A young girl was a rear seat passenger in the family car which was hit by a lorry.

This case underlines how carefully we must check for an acquired brain injury in a child. The tendency is to concentrate on the obvious physical injuries and survival. I clearly remembering handling a road accident case in which two people died, and a surviving child seemed to be free of major injury. As time went on the acquired brain injury became more obvious, and was illustrated by the instruction of appropriate experts. An acquired brain injury can often appear to have only subtle effects, but if your ability to remember and organize is affected, the consequences are going to be very serious. Continue reading “Child head injury”

Child acquired head injury

Acquired head injury in children

Head injuries in children 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. Continue reading “Child acquired head injury”

Expert evidence

Expert evidence in compensation cases

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 an accident 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 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. Continue reading “Expert evidence”

I want to change solicitor

Do you need to change your solicitor?

I want to change my solicitor is something you might be thinking, but is it possible and how do you go about it?

“Mark Thompson took over my personal injury claim after I became disgruntled with the representation of the law firm recommended by my insurers. From day one the quality of service was in a different league and I could not speak too highly of this firm. Five star professionalism.” You can see what clients say by clicking here.

I do take over cases from other solicitors. This does not mean the current solicitor is poor, it usually means you are not receiving the time and attention you deserve. Working with a solicitor is a personal experience, and it should be personal.

Call for help without obligation on 01392 314086 Continue reading “I want to change solicitor”

Mitigation

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

Mitigation means keeping your losses after an accident or injury to a minimum. Reasonableness is the guiding principle.

When you claim compensation after an accident you have a duty to mitigate, or keep your losses to a reasonable minimum. 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. Continue reading “Mitigation”

Claim for self employed

Self employed – accident compensation

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 cases for compensation by the self employed 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. Continue reading “Claim for self employed”

Paraplegia-spinal injury

Paraplegia

In simple terms paraplegia means below 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. Continue reading “Paraplegia-spinal injury”

Spinal injury

Spinal Injury

Contributory negligence can reduce compensation significantly when the injury is serious

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. Continue reading “Spinal injury”

Tractor turns right

Tractor turns right across overtaking motorcyclist

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. Continue reading “Tractor turns right”

Contributory negligence

Contributory negligence

Contributory negligence or partial fault is such an important subject and 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. Continue reading “Contributory negligence”

Recovering costs

Recovering costs from the other side

It might surprise you to learn there is no automatic rule which says if you win your case your costs will be paid by the losing side. It happens in the vast majority of cases, but it is not an absolute rule. The practice comes from the affordability of the costs to the losing party, as that party is usually either insured or a trade union member. If there is such financial backing behind a losing party then it is very very likely a costs order will be made against them. Continue reading “Recovering costs”

Conditional fee agreement

Conditional fee agreement

No win no fee

Conditional fee agreement is the proper name for “no win no fee.” It means your own solicitors fees are only payable by you in the event of success. Success is defined in the agreement, but in compensation cases it usually means recovering a compensation payment in your favour. There is a lot to understand. Continue reading “Conditional fee agreement”

Legal aid

Legal aid

Legal aid is a thing of the past in most personal injury cases.

The legal aid system was set up for the right reasons, to allow those who could not afford a solicitor, to use one. If the case was unsuccessful your own solicitor would receive some payment from the legal aid fund, your expenses/disbursements would be paid, and you would have no bill to pay. depending on your financial circumstances you may have paid a contribution towards your legal aid, but the contribution was nothing like the full legal bill. Continue reading “Legal aid”

Legal expenses insurance

Legal expenses insurance

Lots of people have this insurance as part of policies on their car, motorcycle, van or house. The policy can be bought as a stand alone policy, but few people search it out. The policy will allow you to pursue a compensation case, and cover your liability to pay your own solicitor’s costs and disbursements, and those of the other side, if your case fails.

Your legal expenses insurer must be satisfied the case has reasonable prospects of success, and this is necessary all through the case. Just like the after the event insurance the insurer can pull out if those prospects are no longer reasonable. Continue reading “Legal expenses insurance”

Credit hire

Credit hire

Credit hire exists to provide a replacement vehicle after an accident. You as the hirer do not have to pay, as the bill is presented to the insurer of the person who caused the accident.

To get a credit hire vehicle you must satisfy these tests:Credit hire car after road traffic accident

  • Accident is the fault of another motorist.
  • The motorist at fault is insured.
  • You need a replacement vehicle while yours is being repaired, and have no other vehicle available. Continue reading “Credit hire”