What has happened?
Before meeting with anyone to discuss your injury you may need to think about what has happened, and what you now want to happen. It might be that you want compensation but you may also want to officially complain about a situation, or save others from a similar injury.
This information item covers what you might do.
You need to be clear about:
- what the injury is
- how the injury happened, and when
- whether you suffered any loss, e.g., damage to property, loss of wages
- whether other people have been injured
- what action you have already taken
- what action you want to take
What is the injury?
It might be obvious that there is a physical injury, but other types of harm may not be so clear, for example:
- you may have suffered psychologically but not physically
- your health may have suffered from wrong medical treatment, or workplace conditions
- you may not have been injured yourself but may be the friend or relative of someone who has suffered personal injury.
It is impossible for any lawyer or adviser to judge how bad your injuries are or if it is likely to get worse. A medical opinion may be needed to find out this.
If you have not already seen your doctor you should do so as soon as possible. Photographs of the injury with dates taken may also be useful.
If you are claiming you have suffered psychologically this must be caused by a breach of any duty owed to you by someone for you to claim damages for this type of suffering. However you cannot claim compensation for the stress of making a claim.
Citizens Advice Jersey offer free and impartial information and advice on personal injury. This includes general advice on claims relating to asbestos. They are not lawyers but can put you in touch with a number of law firms who specialise in this area
The Diffuse Mesothelioma Special Payment scheme was introduced on 1st October 2019. Jersey residents with this diagnosis from exposure to asbestos can apply for compensation here – https://www.gov.je/Benefits/SicknessInjury/Pages/DiffuseMesotheliomaPayment.aspx
Where your injury may have been caused by medical negligence you should see a lawyer or ask for legal aid straight away. This is because time is important if legal action is to be taken. It will take time to get other medical opinions and for any legal action to start. Generally, the time limit is three years from the date you suffered injury. If you are claiming against an employer, the time limit is 10 years
Have you suffered any other loss?
It may be that you have also suffered other financial loss, for example:
- damage to clothing or other personal items
- cost of repair or replacement of a vehicle, and any hire charges paid
- loss of earnings (unless sick pay has made up for losses)
- cost of care, specialist equipment, medical treatment
- cost of counselling or therapy
- travelling expenses or treatment
You should keep a list of any expenses, with receipts or other evidence of losses, e.g. a letter from your employer stating what wages you would have got with any bonuses or overtime payments. If your sick pay has been less than your normal wage, the shortfall in wages should be listed.
You can claim for any reasonable and necessary financial losses but you have a duty to mitigate these losses as far as possible to make sure they are reasonable, for example, by using the bus instead of taxis where possible. If it is shown that you have not mitigated your loss, the amount of your claim will be reduced.
Mitigation is not just about money. If you lose your job or can’t work and make no realistic attempt to find work that you might be able to do, that can also count against you so keep a note of any jobs you have shown an interest in or applied for.
Who caused the accident?
In some cases it is not clear who was to blame for the accident. In some cases you may have been partly to blame. This is called contributory negligence and will be taken into account if a claim goes to court.
In other cases, there may be more than one person to blame e.g. a car accident involving more than 2 cars. You may have to decide who you think was at fault and who you wish to sue. The other parties involved may also argue who was to blame. If you can, take advice on this type of issue.
If the responsibility lies with an employer, friend or a relation, it sometimes feels bad making a claim. However, many claims are covered by insurance through eg employer’s liability insurance or in the case of a car accident, the motor third party insurance.
If the driver of the vehicle which caused the injury is not known to you, see Reporting the incident to the Police.
If you have suffered psychological harm or other injury because of a car accident and the driver was uninsured see below: ‘Reporting the incident to the Police’
If your accident happened abroad, you will have to claim under the law of the country where the accident happened. This includes an accident in the United Kingdom. Pursuing a claim in another country, including the United Kingdom, can take longer, and be expensive and difficult in particular elsewhere than the United Kingdom. You will need a lawyer who is experienced in taking personal injuries claims in different countries.
It might be possible to claim under a travel insurance policy if you have one but the wording of such policies needs checking as they can be very restrictive.
If you think you are going to make a claim under a travel insurance policy you should contact the insurance company quickly and tell them what has happened. You should also look at the policy and see what it says about how to make a claim. (See below: Reporting the incident to your insurance company)
There is a strict three-year time limit to begin legal action to claim compensation for a personal injury unless you have a contract with the person you say caused injury to you. Don’t delay especially if legal action is being considered. There are some (but very few) times when the time limit can be extended, but you will need legal advice.
The time limit generally starts to run from the date when you were injured.
Have other people been injured?
If it becomes clear that others have been affected by the same accident or situation it may be better to join with others in a multi-party action if this is possible. You should try to find out who is also bringing a claim to see if you can co-operate together including carrying out negotiations.
What action have you already taken?
It is important to list what action you have already taken, and decide what still needs to be done. For example, you may already have:
- reported the incident to the police
- reported the incident to your insurance company
- contacted the other party’s insurance company
- reported the incident to your employer
- reported the incident to Health and Safety Inspectors at Customer and Local Services
- contacted the person you think is responsible for the accident
- consulted your doctor or the hospital
- made a formal complaint
- seen a legal adviser
Reporting the incident to the police
If the Honorary or States Police have dealt with the incident, there should be a report which your legal adviser can obtain for a fee. It is useful to note the name or number of the police officer who dealt with the matter.
If the Police are taking criminal action in the case, any claim should wait to see what happens and for the outcome because the evidence and verdict can be helpful to your case.
In some cases you may not wish to make a complaint to the Police, for example if the injury was caused by a friend or colleague who you do not want to see charged. If you want to bring a claim the case is likely to be stronger with police evidence.
If you want to claim from the Criminal Injuries Compensation Board, you will have to have a police report.
If your injury was caused by the police, you may want to make a formal complaint, and get legal aid if possible.
NB: If the accident has been caused by an uninsured driver, you should report the matter to the police within fourteen days of the incident, or as soon as is reasonable.
Reporting the incident to your insurance company
It is usually one of the terms of an insurance policy that anything that might be important is told to the company. For example, in road traffic accidents, most policies say that the insured person must tell the insurance company of any accident with the insured vehicle. It does not matter whose fault the accident was. If you don’t tell them this may let the insurance company cancel, or get out of paying on the policy.
If you have not already reported an accident to your insurance company, including any travel or household insurance that might provide cover for your claim, you can go to CAB and they will help you check the policy. Unless all the losses are covered under your own insurance, a claim against the other person will be needed.
Even if most of your losses are covered, for example, by a comprehensive insurance policy, you will need to claim against the other person to get back your loss on your ‘no claims bonus’ and/or any excess you have had to pay.
If the other party is insured, for example, in a road traffic accident, you may wish to contact the other party’s insurance company. Normally, it is fine to ask the other party to pass on details of a claim to their insurers, but if they do not do this, it may help to report the accident straight to the insurers. However, most insurers will not discuss a claim until they get a claim form from their own clients.
If the driver is not insured, you will not be able to contact an insurance company and you will need to make a claim against the driver. However, if the other driver’s insurance policy does not cover them because, for example, they were in breach of the terms of the policy, (perhaps by not telling them they had a driving ban) your claim should be made against the driver’s insurance company.
Reporting the incident to who you think is to blame
If you have not already reported the matter to the other party it is usually wise to wait until you have decided on what you want to do and taken guidance or legal advice if you can. If you have reported the matter, a copy of any letter or record of a phone call could be very helpful before legal action.
Reporting accidents at work
Accidents at work should always be reported to your employer, and noted in the accident book. If there is no accident book, you should write down brief details of the accident sending it to the employer and keeping a copy.
If there is an injury at work, the employer may decide to notify the Health & Safety Inspectorate at Customer and Local Services who will investigate and write a report. There is no legal need to report accidents at work. If you are not contacted by the department’s officers, you should report the accident to the officers yourself.
If you are unable to work, you should check to see if you can claim sick pay or incapacity benefit. Under your contract of employment, you may be entitled to sick pay from your employer.
Anyone involved in accidents, in particular serious accidents other than car accidents, should contact the Health & Safety Inspectorate who want to know about any dangerous situations. They will investigate if they think it necessary and can bring prosecutions under the Health and Safety at Work (Jersey) Law, 1989. What happens in any case the Inspectorate takes could be very helpful to you in deciding whether to bring a claim for compensation.
Tel: +441534 447300
Reporting the injury to a doctor
You may already have visited the hospital following an accident and been treated as an in-patient or an out-patient. When this happens there will be case notes which are made available to your legal adviser should legal action be planned.
If your injury has developed in other ways, for example, as a result of workplace conditions, over time, you may have visited your GP for treatment. It is important to investigate how bad your injury is, and record any changes over time.
Have you seen a legal adviser?
You may have already got legal advice but not really understood the advice. In this case, you can ask the CAB for help and with your permission, they will contact the lawyer and help make the information clear to you.
You may have been told by your lawyer that you do not have a good enough case and be unhappy with this advice. If your lawyer was given to you by Legal Aid, the Acting Batonnier could be asked to give another opinion. Or you could get a second legal opinion at your own expense. If that happens, it is important to get a lawyer who is experienced in personal injury claims.
How much money do you have?
If you have money problems as a result of the injury it is important to try speak to someone about managing money and debt. You need to get as much income as possible and claim any benefits you might be due. CAB can give you advice.
If legal responsibility for your claim is accepted, or you obtain a judgment that the defendant is liable in principle, or you have a strong legal case for compensation, it may be possible to claim an interim amount in compensation from the other party while the legal action is going on and before the final amount payable is agreed.
What do you want?
It is not always about getting money. Sometimes you just want to know what has gone wrong. Other outcomes are:
- an explanation, apology or someone taking the blame
If you do not want to take a claim for injury, but want to perhaps know what went wrong, get an apology or have someone admit that a wrong has been done there may be a complaint’s procedure that you can use. Ask the company or organisation if they have one.
In certain cases there are official procedures to make complaints:
- against the police
- local hospital service
- for accidents at work – Health and Safety Inspectorate, Philip Le Feuvre House, La Motte St., St. Helier
- for accidents involving unsafe structures or equipment – Health and Safety Inspectorate, Philip Le Feuvre House, La Motte St., St. Helier
- accidents at school – Director of Education
- accidents abroad – Contact UK Embassy of country
- injuries caused by food/drink or living conditions – Environmental Health Officers
- you may also be entitled at an inquest following an unexplained death to explore why this happened including any failings of anyone who might have been responsible for the death
Compensation for an injury may be claimed by civil court action or in some cases by applying to the Criminal Injuries Compensation Board.
It may also be possible to get acceptable compensation by making a formal claim in writing to the person or body who was responsible for the injury and negotiating a settlement of your claim.
Any written communications trying to settle a claim should be marked “Without prejudice”, stating how the claimed amount has been arrived at, e.g. loss of earnings, damages to clothing etc. Any oral discussions should also be stated at the outset to be without prejudice.
‘Without prejudice means that anything discussed or said cannot be referred to in any later court action should the case not settle. This allows parties to have a frank and confidential discussion about settlement without the threat of anything they say being used against them at a later date if there is no settlement.
If a communication marked ‘without prejudice’ is not a genuine attempt to settle then the confidentiality of your correspondence may be lost and the documents used against you.
The person responsible may use the claim letter to put in place an insurance claim, if there is a suitable policy.
Taking legal action for compensation
Deciding whether to take legal action
Even if you believe that you have a strong case, it may not be possible to take legal action. For example:
- you may not be able to show that there is a case in law. If you say someone was negligent or did not do their job properly, it may not be possible to prove it on what is called “the balance of probabilities” (which means it is more likely than not) that the person failed in their duty of care towards you or that they had a duty of care to you.These legal points are very complicated and you will need legal advice before knowing whether you have a case.
- even if you have a good case, you may not be able to afford to take the case to court
- if the case does go to court, it will usually take at least a year to be heard and longer in more complex cases. If a number of medical experts are to be used, it can be difficult to arrange meetings for a few months.
- Preparing a case and going to court can be very upsetting and can drag out the suffering of an accident or death. It might be that even if you do have a good case you would prefer to put the upset behind you rather than start long, upsetting legal action. This is a factor in deciding whether or not to settle. You cannot recover compensation for the stress of a court process.
- the person who is responsible for the injury may not have any way to pay compensation even if it is awarded. Also, the amount of compensation given by the court for pain, suffering and loss may not cover the cost of taking the case.
- You should always be aware that if you bring a claim and lose the case you will usually have to pay the other side’s cost. This is always something to think about both before starting an action and while it is ongoing in particular if you receive an offer of settlement.
Choosing a lawyer
If you are applying for legal aid it is to be hoped that the Acting Batonnier would pass the case to a lawyer experienced in this area of law. This may however not always happen.
If you can afford to take legal advice you should shop around to find a lawyer who has the relevant experience and whom you get on with. There are specialist lawyers in personal injury litigation and a number of law firms will also give a free consultation to weigh up the case.
Citizens Advice Jersey offers a free, Personal Injury Clinic on the last Thursday of each month between 12.00 and 14.00. Clients are seen by appointment only.
Paying for legal action
If you have your own lawyer you will be responsible for that lawyer’s fees whatever happens to your claim. It is therefore up to you to reach agreement with your lawyer as to the basis upon which you will be charged.
If you are on legal aid you may still be required to make a contribution to your lawyer, depending on your financial circumstances. The lawyer appointed should discuss this with you at your first meeting.
If you win a case generally you will receive a costs order from the Court in your favour. The costs you recover from the other side may not necessarily represent all the costs you have incurred. As a rule you normally recover around ⅔ of the costs of the lawyer that will actually have been incurred. You will have to pay any difference. This may come out of any money you have recovered.
If you lose a case you will have to pay your lawyer including any contribution required under a lawyer appointed on legal aid as well as the other side’s costs. This is something to think about when negotiating any settlement or any offer of settlement is made.
Some insurance policies give their holders legal protection cover, especially in the case of motoring insurance. It is important to check whether you have such cover which would pay the cost of legal action up to a certain amount. You should also ensure you stick to the terms of the policy.
If your accident happened at work and you are a member of a trade union, the union may take on the case for legal action on your behalf.
If you can’t get help with the cost of legal action and do not have an extremely strong case, a lawyer may advise you not to take legal action. This is because, if you lose, you will have to pay your own costs and usually the costs of the other party.
You need to think carefully and take advice because of the costs you may end up with.
The amount of compensation
There are two types of compensation that you may claim, general damages and special damages.
General damages are paid to compensate you for the injury and are usually the biggest part of any award. They can include a sum to compensate for your:
- pain and suffering, past and future, both physical and mental
- loss of expectation of life
- loss of amenity, i.e. reduction in enjoyment of life
- loss of future earnings and earning ability. This is worked out by using your net annual income and how long you are expected to live
- future expenses as a result of injury
The award of general damages is decided by the Court after hearing all the evidence in the case, based on previous cases. Similar types of injury will receive a similar amount of compensation adjusted for inflation.
In most cases when you reach a settlement that is the end of the matter and you cannot recover damages for any complications that occur after the settlement. Exceptionally you can reserve the right to seek further damages if complications are likely to occur. This is known as a claim for ‘provisional damages’.
You should seek legal advice if you consider that your injuries may develop complications. This is something you may also have to discuss with any doctors advising you or helping you and the legal advisor assisting you.
Special damages are paid to you to compensate you for actual financial loss that the injury has caused up until the date of the hearing. These amounts must be stated by you when you first make the claim and the Court will decide what is reasonable.
Your lawyer will help you to decide what to claim as special damages. The following are some claims which can be included in a special damages claim;
- damage to clothing or other personal belongings
- cost of repair or replacement of a vehicle, and any hire charges incurred
- loss of earnings (unless sick pay has made up for losses)
- cost of care, specialist equipment, medical treatment
- cost of counselling or therapy
- travelling expenses or treatment
Settling a case
In most cases the other party will try to settle before the case gets to Court. This is called an ‘Out of Court Settlement’. There are many things to take into account before settling, and you should be warned that not accepting a smaller sum offered “Out of Court” might result in the case being heard and you having to pay legal costs from an amount not much larger than the offer.
Without prejudice letters
Lawyers acting for the other side may send ‘without prejudice’ letters to you or your lawyer. A without prejudice letter, which has an offer of compensation offered in genuine negotiations, cannot be used as evidence or as an admission of liability. If you do not accept the offer, the without prejudice letter would not be brought to the attention of the Court.
If, however, you do accept a without prejudice offer, this is a binding contract. If the other side then refuses to honour it, it can be brought to the attention of the Court for enforcement.
Support and counselling
There are a number of voluntary organisations that have been set up to support anyone who has been injured or whose partners, friends or relatives have been injured or killed.