Orthopaedic injuries guide
A serious injury can have a life changing and devastating impact on your life.
Brain injury guide
Traumatic brain injuries can have a catastrophic and life changing effect for those people who have been involved in accidents and their families.
What may help you prove fault after a road traffic collision
There is no automatic right to compensation following a road traffic collision. It has to first be established that the third party driver is at fault, and then you need to prove what losses flow from the collision. In this blog I look at what you can do to help yourself prove fault following a road traffic collision.
First, it may be helpful to just remind ourselves of what each of us could readily do to reduce the risk as far as we can from being involved in a road crash.
Is there a time limit for bringing a personal injury claim?
There will almost always be a time limit for you to have either settled a claim for personal injury compensation or to have started formal court proceedings.
The safest approach is to instruct a solicitor shortly after the incident who can then advise you on the applicable time limit for bringing a claim in your particular case. The below is intended to give some guidance on the applicable time limits but is not intended to be a substitute for formal legal advice.
The time period for bring a claim for personal injury compensation will vary depending on where the incident occurred, and whether the injured person at the time was below the age of 18 or had mental capacity.
As a general rule the claim for personal injury compensation must have been concluded, or formal court proceedings started, within 3 years of the incident date otherwise Statute will prevent the injured person from pursuing a claim for personal injury compensation unless you have secured from the Court permission to proceed.
There are a few exceptions to the above rule being:-
1. If at the time of the incident the injured person was below the age of 18 then the claim must have concluded or formal court proceedings started by their 21st birthday;
2. If an incident occurred on water then a different time period may apply, typically 2 years;
3. If an incident occurred in the air then a different time period may apply, typically 2 years;
4. If the incident occurred in a country other than England and Wales then you may be restricted to the time period set down by the laws of that country.
5. If the injury was sustained over a period of time, such as a repetitive strain injury at work, then the point in time is taken as the date of knowledge when the cause of the injury is identified.
If you make an Application to the Criminal Injuries Compensation Authority then you must have submitted to them the Application within 2 years of the incident date.
It, therefore, is important if you wish to pursue a claim for personal injury compensation that you instruct a solicitor as soon as possible after the incident to enable your claim to either be concluded or court proceedings issued within the set time period.
Matthew Claxson is a Solicitor and Partner at Moore Blatch specialising in serious injury and fatal incidents.
A Fatal Accident Act claim: How can a Solicitor help
In cases of road death the victim is not only the person who has died but also those that they have left behind trying to cope with the unexpected sudden loss of a loved one.
After a road death the bereaved family are faced with tackling unwelcome legal issues of which they seldom have had any previous experience.
A solicitor specialising in compensation claims arising out of fatal incidents, if instructed, will be able to help the bereaved family by providing clear advice, representation, and guidance on the following issues:
The police investigate all cases of road death that may result in a defendant being charged with an offence. If there is a charge then there will be a formal Court Hearing to determine guilt and/or pass sentence. A solicitor may attend the Hearing to offer advice to the bereaved family on what is happening in the criminal process, and to also take a note of the evidence to support any later civil compensation claim against the defendant.
The Coroner is notified of all deaths. In the absence of any successful criminal prosecution following a road death then the Coroner is likely to hold an Inquest where witnesses will attend to give evidence to assist the Coroner to determine the cause of death. The defendant is often represented by a legal team funded by their insurance company which can be perceived by the bereaved family as unfair if they are not also legally represented. A solicitor instructed by the bereaved family may arrange for appropriate representation at the Inquest to ensure that there is an “equality of arms”. Furthermore, in absence of any criminal trial the Inquest affords the bereaved family the opportunity to raise questions of the Coroner to understand how their loved one died.
The media will usually print a story after a road death. This can be with or without the bereaved families consent or input. The media could obtain information, including pictures, from online social networking forums. A solicitor on behalf of the bereaved family could prepare a statement to provide to the media, and request that particular pictures are used.
The deceased may have held assets that can only be unlocked by the next of kin obtaining a Grant of Probate where the deceased had a Will, or Letters of Administration where the deceased did not have a Will. The next of kin can apply themselves for the Grant of Probate or Letters of Administration but may choose to instruct a solicitor to obtain this document.
In order for a civil claim to succeed, with payments made, fault in full or part must be established against the defendant. If the defendant is not found at fault then no payments will be made.
A civil claim against the defendant can be brought by the Estate of the Deceased and/or by those who depended upon the deceased for either financial assistance or services. A claim by the Estate will require a Grant of Probate or Letters of Administration.
The claim by the Estate is brought under the Law Reform [Miscellaneous Provisions] Act 1934 which represents what claims the deceased had between the incident occurrence and death. This can include for the following:-
– Pain and suffering
– Property damage (clothing/jewellery/vehicle)
– Funeral expense
The Dependents claim is brought under the Fatal Accidents Act 1976. This includes for a bereavement award, and sets out the criteria for a dependency claim which if successful is often a substantial payment.
The bereavement award is paid to the husband or wife or civil partner of the deceased. If the deceased is a child then the payment is made to his parents if he was legitimate or his mother if he was illegitimate. The award is £12,980 for deaths after the 1st April 2013.
The dependency claim can be brought by a stated class of person who depended upon the deceased for financial support and/or services. This is often scrutinised by a defendant insurance company to determine if the person bringing the dependency claim is entitled to do so and, if so, challenge the manner in which any loss is calculated. The type of loss that can give rise to a claim is typically (not an exhaustive list):-
a) Loss of income. This includes loss of the prospect of earned income.
b) Loss of gratuitous services provided by the deceased
c) Loss of fringe benefits, e.g. company car
d) Loss of gifts which were anticipated
e) Losses incurred because of death.
A solicitor will need to identify all of those who are a potential dependent because the defendant’s insurance company is only required to make a single payment for dependency that is then apportioned between those who are “qualifying” dependents. A solicitor can help by giving advice to ensure that all qualifying dependents have been identified with appropriate payments made so as to reduce the likelihood of dependents coming forward at a later date after the case has concluded.
An interim payment is a payment by the defendant insurer on account of the final settlement of a civil claim. A bereaved family will often find themselves in financial dire straits if they have paid out for a funeral and there has been a reduction of income into the household. A solicitor can help by making to the insurance company an early request for an interim payment that can be of significant assistance to the family.
It is important to realise that most claims for compensation are subject to strict time limits. The safest assumption, when the death was immediate, is that a 3 year limitation period runs from the date of incident. This can change where the deceased survived for a time after the incident that eventually caused the death. A solicitor can help by advising on the applicable time limit relevant to the particular circumstances.
A solicitor can help by exploring with the family the best method of funding for the case.
Matthew Claxson is a Solicitor and Partner at Moore Blatch Solicitors specialising in serious injury and fatal incidents.
As a keen cyclist I am delighted to have the better summer weather arrive to enjoy my chosen routes, and not surprising that there is an increased number of cyclists around on our roads with the same objective in mind.
New Speeding Fines introduced from 24th April 2017
Increased speeding fines are effective from Monday, 24th April 2017. The key difference is the introduction of a three band system that will determine a driver’s fine and number of penalty points.
How to fund a claim for personal injury compensation
In a claim for personal injury compensation it is important your solicitor puts into place the best method of funding of the claim for you.
The defendant admits fault but then alleges you are also at fault: what does that mean?