The law is there to protect and support you if you have suffered illness or injury as a result of actions or omissions that were not your fault.
Our day-to-day lives can bring surprises: each year more than three million people suffer a personal injury or illness because of the negligence and carelessness of others, such as in road traffic incidents, because of broken machinery or equipment, or as a result of working in a poorly-maintained or unsafe environment.
Sometimes, individuals suffer an injury during the course of receiving medical treatment, because of carelessness or negligence on the part of healthcare professionals.
You may wish to secure a formal apology and admission of fault from those who have caused your injury, or you may want financial compensation to help you in your recovery. Whatever option you choose, it is important to equip yourself with as much information as possible before you begin to take any legal action.
• The kinds of illness and injury covered by personal injury legislation
• Your options for how to make a personal injury or medical negligence compensation claim
• How to fund a personal injury or medical negligence claim
• Deadlines for when it is possible to make a claim
• The kinds of evidence required in order to make a claim
• How compensation awards are calculated and paid out
• What is a personal injury?
• What is medical negligence?
• What are my options in making a personal injury claim?
• What are my options in making a medical negligence claim?
• How long do I have to take legal action?
• Will I have to pay my own legal costs?
• What do I need to prove in a personal injury claim?
• What do I need to prove in a medical negligence claim?
• What evidence do I need to make a personal injury claim?
• What evidence do I need to make a medical negligence claim?
• How much compensation will I be awarded?
• How will my compensation be paid?
• Can I make a claim on behalf of another person?
• Can I make a claim after a fatal illness or injury of a family member?
• What if I have been injured as a result of a crime?
- The law is there to help you secure financial compensation when deserved
- You will need to prove that the incident (or omission) causing your illness or injury was not your fault
- Medical evidence must link your illness or injury to the incident
- There are strict deadlines on when you can make a claim
- You will need to be clear on how your legal action will be funded
- Gathering evidence as soon as possible after the incident is essential
- You can make a claim on behalf of another person
- You can make a claim following a fatal illness or injury
- The size of the compensation award will depend on lots of factors, including long-term aftercare and loss of earnings
In law, there are two kinds of personal injury for which you may be able to take legal action and seek compensation:
• A physical injury or illness, such as a broken leg or asbestosis; and
• A psychological injury, such as post-traumatic stress disorder or stress at work.
Some injuries will be deemed 'catastrophic', such as injuries to the brain which will have long-term effects on your health. Some injuries will result in fatalities.
Importantly, in order to take successful legal action and secure compensation, the illness or injury must have been sustained because of actions which were not your fault.
The term 'medical negligence' refers to illness or injury which has been sustained as a result of negligent activity on the part of a health care practitioner such as a doctor or nurse, or in some cases on the part of an institution such as a health care trust. Examples may include an illness sustained as a result of an incorrect dosage of medication, or an injury following an inappropriate surgical procedure. It may also result from an omission, for instance, failure to give sufficient information about a recommended course of treatment.
Making a claim for compensation following medical negligence requires a particular kind of evidence gathering, which we will cover in this guide.
There are two options if you wish to secure compensation following a personal injury:
• Using a claims assessor, without going to the courts; or
• Taking legal action
Claims assessors are not generally advised as the best way forward in seeking compensation. They are often not solicitors, and therefore may not have the legal expertise required to secure you adequate compensation. In addition, they often offer 'no win, no fee' arrangements which may take a very large percentage of your final award if you are successful.
Taking legal action in a civil court, on the advice of an experienced personal injury solicitor, will help ensure you are properly represented, and fully compensated for your injury.
If you wish to make a medical negligence claim, it is important to be very clear on your desired outcome. Options include:
• Securing a formal admission of culpability from those responsible, together with an apology;
• Securing guarantees that future medical practice will not result in similar injuries; and
• Securing financial compensation.
If you wish to seek compensation – including to cover loss of earnings or to help fund future medical or therapeutic care – you should secure the services of a medical negligence lawyer.
In the case of both personal injury claims and medical negligence claims, it is best to act as soon as possible following the illness or injury, because there are strict timescales for when you are permitted to take legal action.
Usually, you will have up to three years after the illness or injury was sustained in which to bring your claim. In some cases, the courts may be persuaded to extend the deadline, but investigating as soon as possible will help with the gathering of evidence whilst it is still fresh.
In the case of a claim being made on behalf of a child, the three year deadline commences at the age of 18, so that you will have until the claimant's 21st birthday to make a claim.
Legal aid is no longer available for personal injury claims. However, there may be other sources of funding to help you make your claim, such as an insurance policy or a charitable foundation. In the case of medical negligence compensation claims, there are several charities which aim to help fund legal action.
Most solicitors will not charge you for the initial consultation during which they establish whether or not you may have a claim. It is also helpful to ask for a costs checklist, in which the likely costs of you claim are set out.
Many law firms offer conditional fee arrangements (CFAs). This means your solicitor would not receive any legal fees if your claim is unsuccessful. You may be liable for the legal costs of the other side, and your solicitor may well ask you to take out insurance to cover this eventuality. However, if your claim is successful, your legal costs would be paid by the other side.
In order to make a successful personal injury claim, you need to prove that the illness or injury was sustained because of negligence or malpractice on the part of another individual, individuals or institution.
You will also need to prove that the injury was sustained as a direct result of that negligence or malpractice.
In some cases, 'fault' may be shared. For example, you may be injured in a road traffic incident in which a driver was reckless – but in which you were not wearing your seatbelt. The compensation awarded by the courts would likely be reduced to reflect this.
In order to make a successful medical negligence claim, there are two important elements that you will need to prove:
• Breach of duty: that the standard of medical care you (or the claimant) received was below the standard you expected.
• Causation: that there is a definite link between the breach of duty and the injury or injury sustained.
The breach of duty element will be considered against the medical knowledge and clinical standards prevailing at the time of the incident.
Your solicitor will help you gather as much evidence as possible to support your compensation claim, both to document your illness and injury and support your claim that it was not sustained through any fault of your own.
Medical records and photographs of injuries are usually required to support a claim. Photographs or video evidence of the site of an accident are also helpful. For example, in the event of a road traffic accident, diagrams showing the positioning of vehicles can help establish that you were not driving recklessly. Where the police attended an incident, their written evidence can be used to support a claim. If you have been injured by damaged or poorly-maintained machinery at work, specifications of the machinery and evidence that it has not been properly maintained are essential.
Independent medical experts will also be engaged to help establish a firm link between your illness or injury, and the incident when you believed it was sustained. In the case of long-term malpractice or negligence resulting in illness or injury - such as a claim for stress caused by working conditions – evidence such as emails between you and your employer will be useful.
In the case of a medical negligence claim, the first step your solicitor will take is gaining access to your medical records. This will help give an accurate view of everything that has taken place up to the incident, during the incident, and in the aftermath.
Your solicitor will then secure independent expert medical opinion on your illness or injury, its causes, and whether there is a firm link to medical negligence or malpractice. The opposing side will almost certainly engage another independent medical expert. Other evidence may include the testimony of healthcare practitioners who observed an incident of malpractice or negligence.
Once your solicitor has gathered all the evidence, they will be able to assess whether you have a potential claim for negligence, and for financial compensation.
The courts will consider a number of elements before deciding on a suitable compensation sum. These will include:
• The severity of the injury, and the likeliness of long-term aftercare;
• Any loss of earnings sustained as a result of the illness or injury, bearing in mind any dependents who will also suffer as a result of financial loss;
• The cost of medical or therapeutic care required as a result of the injury or illness;
• Costs incurred during the legal process; and
• A range of other costs incurred, including the cost of transport and the purchase of medical aids and other specialist equipment, such as modifications to property.
Most personal injury compensation awards will be paid in a single lump sum. If you have entered into any agreement in which legal costs are to be paid out of a compensation award, you will need to bear this in mind.
In the case of substantial awards, particularly those made for medical negligence claims, the award is likely to be paid in two elements:
• A capital award designed to cover all expenses (such as loss of earnings) up to the time of the legal action and any immediate expenses; and
• Periodical payments made over a number of months or years.
In the case of very large and long-term awards – for example, compensation for a brain injury significantly affecting an individual's daily life – the compensation will provide a guaranteed tax-free income.
There may be many reasons why the individual making a personal injury or a medical negligence claim cannot undertake legal action themselves. Most commonly, this is because they were a child at the time of the incident, but you may wish to act on behalf of someone who is incapacitated by reason of advanced age, or because the incident resulted in some cognitive impairment. Legally, adults unable to make a claim are designated a 'Protected Party'.
Those making a claim on behalf of a child or a Protected Party are known as 'Litigation Friends', and they are legally obliged to act fairly and with the interests of the claimant at heart. Where there is no appropriate person (such as a close family member) to act as Litigation Friend, the courts may appoint a professional to undertake the role.
The law surrounding the time limits on claims made on behalf of a Protected Party is complex, and you should seek advice from a lawyer to establish your position as regards making a claim.
Yes. The law is able to help those who have lost a family member as a result of an illness or injury that was not their fault, and whose death will leave dependents in financial difficulty.
Often, family members will first and foremost seek an open admission of culpability from those responsible. However, securing a financial award can be very important, for example by enabling those left behind to continue living in the family home. When making fatal injury compensation awards, the courts will consider a number of elements, including the age of dependents, and the earnings which might have been made if the deceased had survived.
There is special provision for those who have been injured as a result of a crime, for example during the course of a violent robbery.
In these circumstances, you do not need to take legal action. You can approach the Criminal Injuries Compensation Authority (CICA), who will handle your claim directly.
Importantly, the time limit for making a claim to the CICA is two years after the event. However, the authority may extend this deadline in exceptional circumstances, such as those seeking compensation for abuse suffered during childhood.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.