In this month’s issue Steven Hinchliffe of the specialist Personal Injury Compensation firm Hinchliffes Solicitors will consider “HOW COMPENSATION FOR ACCIDENT RELATED INJURIES IS CALCULATED”

In this article I set out the basic procedures for working out how much money an injured person should receive to compensate them for the injuries they have suffered in an accident caused by the negligence of another person or company.  Awards of compensation made by the Courts in England and Wales are some of the lowest in Western Europe; therefore it is essential that every avenue is explored to ensure that the injured person is as fully compensated as the law permits.

Sometimes the injured person is found to be partly responsible for the accident, and in that case the amount of compensation they receive is reduced by a certain percentage to reflect their share of the blame.  For example, in a head on car accident both drivers may be held equally responsible and therefore once the full value of the injuries and the full extent of the injured person’s financial losses are established, only 50% of this would be due.  Also, if someone involved in a car accident was not wearing their seatbelt and this resulted in their injuries being more severe than would otherwise have been the case, they would lose between 15% and 25% of the full compensation, depending upon the individual circumstances.

Difficulties can also arise where the accident causes a pre-existing medical condition to become worse, or where the medical investigations following the accident reveal an existing condition not previously known about.  Compensation will only be due in respect of the injuries actually caused by the accident, or to reflect the extent that the accident worsened the existing condition.  This also extends to the financial losses suffered, for example if someone already had a back problem and an accident aggravated these symptoms for a period of 1 year, and if that person was subsequently unable to return to work at all because of the existing back problem, then only 1 year’s loss of earnings would be recoverable as this is all that could be attributed purely to the accident.

WHAT ARE DAMAGES?

In a personal injury claim, the word “damages” means the same as the word “compensation”.

There are 2 types of damages that can be claimed.  “General damages” compensate for the “pain, suffering and loss of amenity”, which in many cases forms the largest part of the compensation.  “Special damages” represent financial losses as a direct result of the accident.

The level of general damages applicable in a claim is based on the seriousness of the injuries suffered, how long it will take for the person to recover and whether they will have any long term or permanent effects, such as scarring.

The “loss of amenity” element is the extent to which their life has been affected by the accident.  For example, they may be a keen golfer and are unable to play for some time because of the period required for recovery, or they might not have been able to participate in other hobbies, even if only for a short time.  This also covers any changes that they have had to make in their employment because of the injuries and any inability to fully carry out household or domestic tasks that they used to be able to perform.

Special damages can include loss of income or any other financial losses arising from the accident.  It can also include any lost future earnings if the injury is serious enough to prevent the person from working until their normal retirement age.  Where this is applicable, possible wage increases, promotion prospects and pension entitlement should also be considered.

Additional compensation may be recovered for loss of congenial employment.  This is awarded on the basis that the injured person’s employment was “more than just a job”.  This can apply to any job where the injured person felt they had a vocation, which because of the long term effects of the injury they can no longer perform.  It is not limited only to professions such as nursing, the fire service or police.

It is often the case that the injured person will recover more quickly if they receive ongoing medical treatment or rehabilitation, and it is usually possible for their solicitor to explore whether the responsible party’s insurers will fund this.

In fatal accident cases, additional damages will be recovered to cover funeral expenses and compensation will also be awarded to any qualifying relatives, such as a spouse or children, who were financially and emotionally dependent on the deceased.

WHO DECIDES HOW MUCH SHOULD BE PAID?

The solicitor will arrange for a medical expert to examine the injured person, consider their full medical records, and then prepare a detailed report describing the injuries, any treatment received or suggested, and indicating when they are likely to recover.

In most cases, once this report is approved by the injured person, their solicitor will be able to assess the amount of compensation they are likely to receive by comparing the claim with similar cases where compensation has already been paid, and also by looking at the Court’s guidelines on the value of certain injuries.

If the claim is particularly complicated the solicitor will send details to a Barrister, who will advise on the amount of compensation that is likely to be paid.

A full schedule of all the special damages to be claimed will also be compiled and this, together with the medical report, will be sent to the responsible party’s insurers with the aim of negotiating a settlement with them.  However, the injured person must give their authority for any final offer to be accepted before the settlement can be completed.

If these negotiations are not successful an application to the Court may be necessary, but it is still possible to agree a settlement even after the Court has become involved and very few cases actually need to be decided by a Judge at a trial.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

In part it is possible that the figures could be due to a decrease in commercial activity in some sectors because of the recession.  However, some improvement may well be down to the advancement of good practice in the workplace.

COMMENT:-

A reduction of deaths in the workplace is always welcome.  However, for every death there are countless major and minor accidents in the workplace resulting in differing degrees of personal injury to workers.  Compensation is usually available but it is better to avoid the accident in the fist place.  Overall, workplace health and safety is improving and this is a factor the current review of health and safety legislation by the Coalition Government must address before risking weakening the duties on employers - otherwise some employers will cut corners and the rate of injury and death may well increase.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialistsHinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

The cause of this work accident was that it had become common practice during maintenance work to watch the operating sequence of the robotised machine from inside the guarded area rather than from outside it.  The risk assessment by the company had failed to consider the risks to the safety of workers posed by the industrial robot operating within the guarded area.

COMMENT:-

This is another example of a business failing to properly assess the risks of maintenance work.  Maintenance is often routine and timesaving shortcuts often creep in and which can materially affect the safety of workers.  Although this was a prosecution in the criminal courts Mr Brewer undoubtedly would be entitled to compensation for his injuries.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

Alan Miller, a contractor working on the site, was hit from behind by a pallet on the forks of a forklift truck as he walked through one of the departments at the plant.  The Health and Safety Executive prosecuted the company for failing to manage the risks to pedestrians in the area where the accident happened, including failing to advise contractors of the safety measures required to make sure their safety.

COMMENT:-

Pirelli had already accepted that the area should be pedestrian free in a previous risk assessment because the line of sight of forklift drivers was regularly obscured.  So despite the potential for injury being recognised the company continued to put the lives of workers at risk.  This was undoubtedly why the company was prosecuted and in addition it will no doubt face a claim for personal injury compensation from the injured man.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

The trial judge held that the subcontractor with responsibility for groundwork on the building site was liable for the personal injuries suffered by Mr Swain due to the failure to implement an effective system to ensure that a footway was kept clear of mud.

The judge also held that the main contractor was also liable for not ensuring that the sub contractor had an effective maintenance system and that such duty derived from its overall supervisory role. Liability, and the obligation to pay compensation to Mr Swain was split between the two contractors, although Mr Swain also had part of his damages reduced due to his own contributory fault in not taking enough care on the footway.

COMMENT:-

Construction sites can be very muddy places indeed and where there is mud there is a risk of slipping.  No matter how large or small the site, those responsible for the building operations have a duty to both workers and visitors alike to ensure the footways are not in a dangerous condition.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

In this month’s issue Steven Hinchliffe of the specialist Personal Injury Compensation firm Hinchliffes Solicitors will consider more “READERS’ SUCCESSFUL ACCIDENT AT WORK CLAIMS”

Continuing his review of successfully completed accident injury claims, Steven Hinchliffe looks at 2 defective work equipment situations experienced by readers of Truckstop News that ultimately lead to an award of personal injury compensation.

All of the accident victims mentioned in this series of articles are clients of my firm, Hinchliffes Solicitors.  They have kindly given their permission for the disclosure of their details, and in particular of their real life experiences of incidents resulting in personal injury claims, and the steps taken to make a successful accident compensation claim.  All of these clients contacted my firm after seeing our details in Truckstop News - and some of the names referred to may be familiar to you.

In this article I highlight 2 situations caused by defective work equipment and examine the outcome for each individual.  As with the previous articles in this series, the common trend remains the significant effect on each person’s life.  Both of my clients suffered with significant symptoms and financial losses, including lost earnings.  Although using the established legal processes for making personal injury claims as a means of redress cannot truly compensate for the trauma and inconvenience suffered, in appropriate cases it can assist in requiring the guilty party to provide medical treatment and rehabilitation, in addition to financial relief by way of awards of compensation.  As previously stressed, the fundamental aim of all accident claims is to try and return the injured party to the position that he or she would otherwise have been in had the accident not happened.

CASE STUDY 1 - DEFECTIVE CONTAINER DOOR HANDLE

In July 2004 Mr M Knight of Rotherham was making a delivery to Perkins Diesel when he suffered an injury to his right shoulder.  His job was to collect and deliver containers, and on arrival at the yard he tried to open the rear doors of this particular container.  There were catches on the doors controlled by 14 inch handles, but one of the handles was very stiff.  Mr Knight tried to force it to move, but had to stop when he felt pain in his shoulder.  2 other men then assisted and only managed to open the doors after using a scaffolding pole as a lever.  It was clear that the handle had not been properly maintained.

In March 2006 Mr Knight contacted my firm for advice, but he still had plenty of time to make a claim for compensation as 3 years had not yet passed since the accident happened.  The claim was directed to his employers, Hanbury Davies Ltd, on the basis that he was provided with faulty work equipment and his job involved manual handling tasks, and their insurers admitted responsibility within a couple of months.  In this type of situation an employer may try to suggest that the container is not their responsibility as it is just something that is being delivered, however if it is defective and causes injury to an employee, they will not be able to rely on this as a defence to a claim.

My firm arranged for an Orthopaedic Surgeon to consider Mr Knight’s medical records and then examine him.  The conclusion was that he had a pre-existing problem with his shoulder, but the accident had aggravated this and brought forward the need for surgery (which took place in May 2006) by between 12 and 18 months.  The insurers were provided with a copy of the medical report and details of Mr Knight’s financial losses, which included substantial lost earnings for time off work following his operation.  Within a month a settlement was agreed in the total sum of £5,500.

CASE STUDY 2 - FAULTY DRIVERS SEAT

Having to drive a vehicle that has a broken or faulty seat can result in an injury, which is what happened to Mr T Rayne of Normanton.  In May 2006 he started to develop lower back pain, which he attributed to the faulty seat in the vehicle provided by his employer, VWR International Ltd.  By spring 2007 his symptoms had become so severe that he was unable to work for a period of around 4 months.  When he was able to return to his driving job, the seat had been replaced.

Mr Rayne contacted my firm in July 2008, and the following month a detailed letter was sent to his employer setting out the basis of his claim.  This made it clear that the seat was part of his work equipment, and they had failed to maintain it or act promptly upon complaints about its condition.  The claim could so easily have been avoided if the seat had been replaced when it was initially found to be faulty.  However, despite the strength of the allegations against them, their insurers took until February 2009 to admit responsibility.

As in case study 1, Mr Rayne was examined by an Orthopaedic Surgeon, who found that degenerative changes were already starting to occur in his lower back before the onset of these symptoms, however the fault with the seat had accelerated these changes and brought forward the pain and discomfort by a period of 5 years.  This evidence was sent to the insurers and after some negotiation it was possible to settle the claim at a figure in excess of £6,000, inclusive of the wages lost during his time away from work.

Both of these cases were successful because the employers failed to provide their drivers with safe, well maintained and fully functioning work equipment.  Even though each client already had a certain level of physical symptoms, their employers’ attitude made them so much worse.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

In this month’s issue Steven Hinchliffe of the specialist Personal Injury Compensation firm Hinchliffes Solicitors will consider “THE IMPORTANCE OF STRONG MEDICAL EVIDENCE IN SUCCESSFUL PERSONAL INJURY CLAIMS”

What is the role of medical evidence in personal injury claims and why is it so important?  To make a successful claim for personal injury compensation, you need to prove three things.  Firstly, that someone else had a legal responsibility for your safety and welfare; secondly that they failed in their responsibilities towards you; and finally that you suffered an injury as a direct result.  No matter how serious your injuries are, you will only be able to recover accident compensation if the first and second criteria are satisfied.

If these first two hurdles are overcome, then one of the key pieces of evidence that your personal injury solicitor will need, to ensure you receive the correct level of compensation, is a high quality medical report.  This will record:-

1.   The nature and extent of the injuries you have suffered;

2.   The medical treatment you have received, the anticipated timescale for recovery and whether you are likely to experience any continuing symptoms;

3.   Whether you have any relevant pre-existing health issues and if so an assessment of the extent to which these have been affected by the accident;

4.   The overall effect the accident has had on your life (at home and at work) and whether any additional treatment or rehabilitation might assist you.

Armed with this information an experienced personal injury solicitor will be able to assess the monetary value of your injuries.  This element of the compensation award is known as “general damages” and compensates you for the pain and suffering you have had to cope with, and also any negative affect on your day-to-day life.  Therefore, more serious injuries will attract a higher sum for general damages.

Your solicitor will arrange an appointment for you to see an independent medical consultant in your area (but usually not the person who is treating your injuries), who should have been given brief details about you and how the accident happened.  Some solicitors do not believe it is important for the expert to see your previous medical records, but I think this is vital, as without seeing the full records the expert will not know anything about your medical history and crucial issues may be overlooked.  Therefore, my staff and I (with your prior consent) ensure the consultant has copies of your GP and hospital records in advance of the appointment.

Your solicitor should ensure you see the correct type of expert who is qualified to deal with the full extent of your injuries, for example an orthopaedic consultant (if you have suffered a back injury) or a maxillofacial surgeon (if you have suffered facial injuries).  In some situations, you may have to see more than one expert if you have suffered multiple injuries.

The appointment with the medical expert will usually last for about half an hour and normally involves a physical examination.  A couple of weeks later they will send their report to your solicitor, who should copy it to you to check and approve.  At that stage it is often possible for your solicitor to assess the level of compensation you should be seeking, and agree this with you.  This assessment is based on judicial guidelines and also on what has previously been awarded by the Court for similar injuries.  It is therefore essential that your solicitor is a specialist in personal injury compensation cases, who is up to date with all developments in this area of law.

Once you approve the medical report a copy is sent to your opponent’s insurers.  At that stage, if responsibility for your accident is accepted and the full extent of your financial losses has been established, your solicitor will attempt to negotiate a settlement.  Insurers will try to resolve your claim as cheaply as possible and if the medical report is of poor quality and does not deal with every aspect of your injuries and their consequences, there is every chance they will succeed in this aim.  If agreement cannot be reached, then the level of your compensation may need to be assessed by the Court, who will place great reliance upon the medical evidence.  However the claim is resolved, most personal injury solicitors will work on the basis that you keep 100% of the compensation they are able to recover for you, as their costs will be paid separately by the insurers.

In respect of minor road accident claims resulting in apparently modest injuries, many defendant insurers suggest that a medical report is simply not necessary and the injured party would rather receive an early payment.  There is a growing trend for insurers to contact injured people direct to try and secure a settlement with them, before they have had the chance to obtain any legal advice, effectively buying off the claim immediately at low cost.  This practice is known as “Third Party Capture”.

There is an obvious appeal in having an instant payment of between £1,000 and £1,250, but is this really sufficient to fully compensate you?  If this early offer is accepted, you may not be able to re-open the claim at a later stage when it becomes clear that your injuries will not recover quickly as you initially anticipated.  I have known of cases where injuries suffered in a minor accident have taken some time to develop, but have resulted in substantial and long lasting symptoms affecting future capacity to work, and leading to compensation awards of tens of thousands of pounds.

If you are injured in an accident, take care how you proceed with a claim for compensation.  An early settlement may not be in your best interests, and only a full investigation of your injuries will ensure that you are not short changed.  The best option is always to talk to an experienced personal injury solicitor, whose advice will usually be provided without charge.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

The claimant claimed damages for personal injury after falling from a ladder while trying to repair a leaky garage roof at the defendant’s home.  The defendant prohibited the claimant from gaining access to the roof by the window in her son’s bedroom as she did not want him to walk through the house on the white carpets.  Subsequently it was decided he should use a step ladder that was in the garage, but it was too short and whilst climbing the ladder, it slipped and the claimant fell sustaining injury.

The claimant claimed that by her actions, the defendant exercised control over the way the work was carried out and that the claimant owed a duty to him under statutory regulations.  It was held by the Court that the defendant had not assumed control over the claimant in the way of being able to direct how he carried out the work.  She was entitled to impose limits on the access to her property and did this as an occupier and this was the extent of any control she exercised over the claimant.  She did not have any control over him as an employer might have done.

COMMENT:-

This case shows that a householder’s wishes do not amount to “control” over a casual worker.  Accordingly she was not acting as an “employer” and the claim failed.  The claimant was driven to sue the defendant because he could not sue his actual builder employer as he did not have any employer liability insurance.  The actual employer had clearly failed to equip him for the job and had he had insurance then a claim against him would almost certainly have been successful.

If you employ jobbing builders ensure you check that they have insurance for their employees and public liability cover generally.  You may not be as fortunate in avoiding liability as this defendant was.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

Mr Darg was hurt in 2002 at Limehouse police station in London, where he was examining an airbag fault.  His wedding ring had to be cut away and he needed a number of stitches to close the wound.  A couple of years after the accident he had to give up work after being diagnosed with “complex regional pain syndrome”.

Liability was admitted by the Metropolitan police, but what were disputed were the extent of the injury and the amount of compensation that it was reasonable to pay.  The Court was shown video which the police said showed that Mr Darg had exaggerated his disabilities and they argued that he should only receive damages for superficial cuts.

The judge accepted that Mr Darg’s disabilities had been exaggerated to a degree but decided that he had not falsely pretended to have symptoms which did not exist.

COMMENT:-

A claimant is entitled to recover the best award of compensation for the injuries and financial losses he or she has suffered due the neglect of the other party.  Here, this was the police service which was responsible for whichever of their employees had left the knife down the side of the seat.

Sometimes claimants are accused of over claiming, as in this case, or claiming falsely both with regard to injuries they have not had and financial losses not suffered.  The latter is very serious and there have been a number of cases where people who have done this have ended up in prison for fraud.  Do not be one of them.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.

Mrs Jean Smith was working for the Council as a driver and carer. On 1 December 2004 she visited the home of wheelchair bound Mrs Gina Cotter in order to take her to a day centre.  It was necessary for Mrs Smith to take Mrs Cotter from the property down a wooden ramp situated outside the patio doors.  When doing this the edge of the ramp gave way causing her to stumble and suffer personal injury.  The Council denied liability.

The test applied by the Court was whether the work equipment, ie the ramp, had been provided, used or incorporated into and adopted as part of the Council’s business or undertaking. The Court held that although the Council had inspected the ramp they had not actually installed it and their inspection simply showed that it was careful and not that it had control of the ramp.  Mrs Smith therefore failed in her claim for accident injury compensation.

COMMENT:-

Many personal injury lawyers believe this decision to be flawed since the Council knew Mrs Smith had to use the ramp as part of her work.  Had the ramp been installed by the Council then undoubtedly Mrs Smith would have succeeded.  It is difficult to understand why the Court did not take the view that the use of the ramp with the knowledge of the Council did not attach liability.

PERSONAL INJURY CLAIM SOLICITORS:-

If you have suffered any form of accident or contracted an industrial disease contact personal injury claims specialists Hinchliffes Solicitors for immediate legal advice, to find out if you are entitled to make a claim for personal injury compensation.  All cases are conducted on a Free No Win No Fee claims basis, where you keep 100% of the compensation recovered.

Call now on 0800 138 1348 to speak direct to one of our specialist claims solicitors or go to our Start Your Claim Now  page to submit details of your accident compensation claim online.