Don't trip up over claims for injury

EACH week, The Scotsman brings you a top ten guide to pertinent financial issues.

Being at the receiving end of someone else's negligence can have devastating financial consequences as well as physical, which is why the urge to seek compensation from the individual or organisation responsible is practical and not just emotional. But getting compensation for physical or psychological damage can sometimes be a long, drawn-out process. This week Richard Godden, a partner with Edinburgh-based law firm McKay Norwell, gives his top ten tips on negotiating the maze of personal injury compensation.

1. SEE A SOLICITOR
Anyone who believes they have a valid personal injury claim should go straight to a solicitor. Those who approach a claims company in the first instance will eventually be referred to a solicitor – and be charged around £400 for the privilege.

2. NO WIN – NO FEE
This is the basis on which most personal injury claims are taken. The solicitor will make a charge only if the case is successful and sufficient financial compensation (and expenses) awarded. Where a claim appears to be more difficult to prove, the solicitor will normally charge, in which case the client will be required to pay whether successful or not. In the latter option, the claimant should receive an estimated cost before deciding whether or not to go ahead.

3. OUTLINE THE CLAIM
The solicitor will take down full details of the incident that led to the claim and ascertain injuries and other factors such as impaired mobility, loss of earnings or damage to career.

They will then contact the other party to find out if they will admit liability.

If they do not, the solicitor will then look more carefully at the legal aspect of the client's case and provide a risk assessment on the prospects of success in court.

4. INSURANCE
It is possible to obtain insurance that covers – or partially covers – the cost of personal injury claims, which is relatively inexpensive if taken out before injury is sustained. Insurance to cover legal costs (in the event of non-success in court) after a claim has been lodged may also be available but for fairly obvious reasons is extremely expensive by that stage.



5. PRE-SETTLEMENT COSTS
Even when the other side accepts liability, the amount of compensation may take some time to settle and the claimant – despite a no win-no fee arrangement being in place – may be liable for expenses such as a medical report or additional legal advice. These pre-settlement expenses can frequently be around £600, although in many cases payment can be delayed until after the compensation funds come through.

6. CHECK LEGAL AID ELIGIBILITY
Some law firms will take on personal injury cases on legal aid but the claimant will usually be eligible only if he or she earns less than £223 a week.

7. BE PRACTICAL
From time to time, claimants let emotion take over and turn down reasonable and realistic offers to settle, simply because they are determined to have their day in court. However, even when a court case is successful, the sheriff will take previous offers into account and if he feels these were reasonable, the claimant could find himself being ordered to pay the legal expenses.

8. AN ARM AND A LEG
Compensation for the impairment or loss of bodily parts or functions will vary. In England, awards tend to be tariff-based, although the sums are not set in stone, whereas under Scottish law sheriffs and judges can take a much more flexible approach.

Still, even in Scotland, levels of compensation depend on whether the injury is minimal, medium or severe.

As an example, current compensation for a whiplash injury where the effects last for six weeks is likely to range from £1,500 to £2,000.

9. CONSEQUENCES
Compensation will also be based not just on the physical extent of any injury but the consequences of it. Therefore, a professional footballer at the peak of his career is likely to receive substantially more in damages for the same type of injury than a sedentary office worker.

10. PERSONAL INJURY TRUSTS
Successful claimants on state benefits are vulnerable to having those benefits withdrawn when awards are substantial. In such cases (when the sum involved is in excess of £10,000), a solicitor will recommend setting up a personal injury trust. Such an arrangement gives the client the benefit, but not ownership, of the fund and consequently keeps the government from grabbing a share of the award in the form of reduced state benefits.