Contributory negligence claims & compensation

If you have suffered a serious injury as a result of somebody else’s negligence (breach of their duty of care), we may be able to help you make a claim for compensation.

Depending on the circumstances of your accident and the severity of your injury, we may also be able to help you claim compensation:

• where someone else was responsible for causing the accident but you were also partly to blame;
• where your injuries were caused by an untraced driver in a ‘hit and run’;
• where you were the victim of criminal violence.

You can make a claim on behalf of:

• yourself – for your own injuries;
• an injured child who is under the age of 18 (as their litigation friend);
• an injured adult who does not have mental capacity to claim for themselves (as litigation friend);
• the estate of someone who suffered a fatal injury (as their personal representative/executor);
• for your loss of dependency on someone who suffered fatal injury.

The vast majority of our clients’ serious injury claims are settled without the need for a court hearing (trial). Our clients very rarely need to go to court.

Our personal injury specialists are highly experienced in investigating and assessing the strength of each client’s case. From the outset, and throughout the claim, we advise our clients clearly and honestly about their prospects of success.

Court proceedings are issued (started) in many cases but this does not mean that the case will end in a trial. There are many reasons why court proceedings might be issued:

• to protect our client’s right to claim compensation if their limitation deadline (time limit for making a claim) is approaching;
• to force the defendant (and their insurers) to take the claim seriously;
• to push the defendant to admit liability (fault);
• to push the defendant (and their insurers) to make an interim payment to our client;
• so that we can obtain a court judgment, guaranteeing our client’s right to compensation, if liability has been  admitted;
• to encourage the defendant to enter into settlement negotiations;
• to avoid unnecessary delay by setting a timetable, which is overseen by the court, for the steps that must be taken to bring the case to a conclusion.  

We work hard to prove each client’s claim, based on evidence of the circumstances of their accident and the impact of their injury. We encourage cooperation with the defendant’s insurers and negotiate the best possible settlements for our clients. On the rare occasions when a claim cannot be settled without a court hearing, this will be because:

• there are serious, insurmountable challenges with the evidence, or disagreements between experts in a case, which need to be decided upon by a trial judge;
• the defendant’s insurers are using the case to test the court’s approach to a point of law.

In the following circumstances, the law requires a judge to approve an out-of-court settlement, for the protection of those involved:

• where at least one of the injured claimants is a child under the age of 18;
• where the claimant does not have mental capacity to manage their own affairs;
• where at least one of the claimants in a fatal accident claim is a child or lacks mental capacity.

In these cases, the approval hearing will be a short hearing at which the lawyers for both parties explain the circumstances of the case and the settlement terms to the judge. In most cases our client will be expected to be in court during the hearing, accompanied and fully supported by members of our legal team.

The duration of a serious injury claim depends on the individual circumstances of the client’s case. Claims take less time to conclude if:

• liability is admitted by the defendant or their insurer;
• the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
• the injured person’s needs, the costs of meeting those needs and their other financial losses can easily be assessed;

Claims are more complex and may take longer to resolve where:

• the defendant or their insurer disputes that they were negligent or responsible for causing the client’s injury;
• an injured child’s disability and associated needs are expected to change as they grow and develop over time;
• the injured person has suffered catastrophic injury, such as severe brain injury, or major trauma and needs rehabilitation;
• multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

Our nationally acclaimed serious injury specialists have helped hundreds of individuals and families whose lives have been devastated by accidents on the roads, at work, abroad or elsewhere. We understand the impact that a sudden, severe injury and its financial consequences can have on an individual and their family.

We work hard to secure cooperation with defendant insurers, to provide immediate needs assessments and timely funded rehabilitation for our clients to maximise their recovery in the all-important period immediately following an injury. Wherever possible we also secure interim payments to ease our clients’ financial hardship long before their claims have concluded.

By taking the time that is needed for the client’s rehabilitation and the careful assessment of their long-term needs, we can be confident that each client receives the full support and the compensation they deserve.

The amount of compensation that an injured person receives in a personal injury claim depends on a number of individual factors:

• the severity of the injury;
• the extent of any permanent disability caused by the injury;
• the impact that the injury has on their ability to live independently, study, work, or participate in leisure activities;
• additional needs arising from their injury, such as care, specialist equipment or an adapted home;
• their life circumstances before the accident;
• their predicted lifespan;
• litigation risk factors, such as contributory negligence.

Depending on the client’s injury and the way it affects their life, their claim may include compensation for:

• pain, suffering and disability;
• rehabilitation:
  • funded directly by the defendant’s insurer;
  • funded from interim payments;
  • future rehabilitation costs funded from final settlement;
• costs of care;
• case management;
• costs of medical or surgical treatment;
• therapies:
  • occupational therapy (OT);
  • physiotherapy;
  • speech and language therapy (SALT);
  • psychological counselling;
  • pain management;
• loss of earnings and pension;
• additional costs of adapted accommodation;
• assistive technology (IT);
• prosthetics (after amputation);
• specialist equipment and aids;
• extra costs of transport or adapted vehicles;
• special educational needs (SEN);
• Court of Protection deputyship;
• funeral costs (fatal cases);
• bereavement damages (fatal cases);
• loss of dependency on the deceased’s income or services (fatal cases).

Compensation is carefully structured to make the best provision for the injured person’s needs. There are rules protecting compensation for children or adults who lack mental capacity. Compensation may be paid in one or more of the following ways:

• Rehabilitation Code funding – paid directly by the defendant’s insurer to pay for the injured person’s rehabilitation;
• interim (advance) payment whilst the claim is ongoing;
• a lump sum settlement;
• a periodical payments order (PPO) providing lifelong, annual, tax free, index-linked payments for essential costs, such as care and case management, or Court of Protection fees.

An interim payment is a part-payment of compensation which is paid to the injured person, in advance, whilst the claim is ongoing. We can usually secure an interim payment from the defendant’s insurer where they have admitted liability (accepted fault) for our client’s injury.

We use interim payments to help the injured person and their family, who may be suffering financial hardship as a result of the injury. Where insurers are not willing to provide Rehabilitation Code funding, we sometimes obtain interim payments to ensure that our client receives the rehabilitation, case management and therapies that they need straight away.

Interim payments may be used to meet any genuine need, but it is important that the injured person and their family understand that the sums that they have already received as interim payments are deducted from their final compensation at the end of the claim.

Depending on the client’s injury, an interim payment may help meet their needs for:

• case management;
• rehabilitation;
• personal care and assistance;
• physiotherapy;
• occupational therapy;
• speech and language therapy;
• psychological counselling;
• adapted accommodation;
• wheelchairs;
• transport;
• prostheses (after amputation);
• assistive technology and other specialist equipment;
• trials of supported independent living.

By understanding and targeting provision for our clients’ rehabilitation and other essential needs early in the claims process, we help restore our clients’ mobility, independence and ability to participate fully in family and social life, long before the claim has concluded.