Do I have a personal injury claim?
To make a successful personal injury claim, your injury must have happened within the last three years (in most cases), and the injury must have been caused by another party that owed you a duty of care (e.g. another driver, or your employer).
Your personal injury claim must therefore meet three key criteria;
- Limitation - Has the time limit expired?
- Causation - Who caused your injury?
- Liability - Are they legally liable?
How long do I have to file a claim?
The short answer is, it depends.
Most people think that you are eligible to make a claim for up to 3 years after an accident. In fact, the length of time you have to make a claim can be more complicated.
The clock starts ticking on the date of discovery of the injury rather than the date of the accident. While the two dates are usually one and the same, some injuries manifest themselves months or even years after the accident.
Time limits are also affected by a range of other factors including:
- the age of the claimant
- the country in which the injury occurred
- whether the injury occurred on a flight or package holiday
- whether it is a criminal injury
- whether the injury happened during active service
The answer can be a little more complicated in certain circumstances:
Claim time limits for health conditions, illness and industrial disease
Working out how long you have to claim for a road accident or accident at work is usually straightforward. This is because the date of the accident and the start of the injury symptoms usually coincide.
A claim could, however, relate to an illness or other health condition that developed over a period of time (such as carpal tunnel) or where the date of exposure to the cause is not known (such as for asbestos-related disease).
In these cases, the three-year time limit is calculated from the date that you knew, or reasonably should have known, about the health condition. This is known as the ‘date of knowledge’ or ‘date of discovery’.
Time limits for child injury claims
A compensation claim can be made on behalf of a child at any time up to their 18th birthday.
If you injured as a child, you have until the date of your 21st birthday to make a claim, regardless of how old you were at the time of the accident.
Read more about child injury claims.
Can I really claim right up to the 3 year limit?
Technically, yes. However, in practice, probably not.
Many solicitors will not take on a case that only has a few months left before the time limit expires.
This is because formal court documents must be filed before the time limit expires, but most claims are settled well before this stage of taking formal legal action.
It can take time to arrange for medical evidence, and to properly investigate a case, before deciding if you have a claim, and how to proceed.
Assuming there is a claim, and that the other side accept liability, negotiating an appropriate level of compensation also takes time. Further medical exams or expert witness statements may be needed to establish the severity of your injury.
For these reasons, law firms will only take on cases with a few weeks left before the time limit expires in exceptional circumstances.
Who can I make an injury claim against?
Your claim will be made against the person, company or other party who caused the accident that resulted in your injury (known as ‘causation’), if they can be held liable (referred to as ‘liability’).
Causation - who is responsible?
In most cases, proving causation is straightforward.
For most injury claims, such as a fracture, laceration or head wound inflicted in a work accident, the circumstances of the accident directly explain the cause of the injury.
For cases of medical negligence (even where the negligence itself is proved), it can sometimes be harder to prove that the illness being claimed for was caused by the negligence, rather than being a health issue that would have arisen anyway.
Your solicitor will gather evidence to prove what circumstances led to your injury or illness.
Liability in a personal injury claim
In order to be legally liable for your injury, the party must owe you a legal duty of care.
In the case of road accidents, all road users owe a duty of care to each other. An employer owes a duty of care to all its staff. Even if another employee caused your injury, the employer is still legally responsible, under that principle of vicarious liability.
If you are not sure who is to blame for your accident (or if they are legally liable) your solicitor will advise and investigate this for you, if necessary.
Compensation is usually paid out by the defendant’s insurance company.
How much can I claim?
Compensation is broken down into two parts:
- General damages compensation is awarded on the basis of pain, suffering and inconvenience.
- Special damages compensation is awarded on the basis of any financial expenses or loss incurred as a result of the injury
Compensation amounts are recommended by the Judicial College (formerly the Judicial Studies Board). How much you receive will depend on these recommendations and the solicitors ability to negotiate the best settlement.
How likely am I to win my claim?
Assuming that you meet the above criteria, there is a very good chance that your claim will be successful
If the defendant (the other side) disputes liability, the chances of winning are reduced. Other factors such as when there is blame on both sides (split lability) can complicate matters further still
Some solicitors refuse complex cases
Personal injury solicitors will carry out a risk assessment process (often referred to as ‘client vetting’ or ‘triage’) when considering whether to represent a claimant.
It is important to understand that solicitors are typically thinking about the chances of success and not simply whether there is technically a legal claim or not.
Different solicitors with different levels of experience may have a different opinion about how risky a case is, so it is critical that you do not give up if you are initially turned down by one firm.
Tip:Get a second, or even a third opinion. if your claim is not taken on by the first lawyer you speak to.
Why people choose not to make a personal injury claim
A 2014 YouGov survey of injured people revealed that, of those respondents who were eligible to claim compensation, 75% did not do so.
The survey reported on the main reasons why people were reluctant to claim for compensation.
"I have run out of time"
A common question asked by potential claimants is "How long after an accident do I have to make a personal injury claim?"
The cause of your injury may have occurred years ago, but that does not necessarily mean that you have run out of time to claim compensation.
In some cases, particularly work-related illness, industrial disease and medical negligence, the three-year clock starts running from the date you learned of your condition, not when the cause occurred.
"I don't believe in compensation"
As a result of media focus in recent years, there exists in some quarters a stigma attached to claiming compensation. In 2014, a joint report published by APIL and the TUC titled 'The Compensation Myth' addressed the reasons behind this stigma.
Some argue that 'accidents happen'. Although rare ‘freak accidents’ cannot be avoided, many accidents could be avoided, and result from the negligence of other people and organisations.
Making a compensation claim also gives the party responsible an opportunity to provide answers, including giving reasons why the breach occurred and, in the case of defendants such as employers and public bodies, what can be done to prevent further breaches.
"I did not think my injury was bad enough to make a claim"
Even fairly 'minor' injuries can be claimed for, and the process for such claims is often much faster than for more serious injuries.
Respondents to the survey were also concerned that their case might not be strong enough. This could be due to lack of evidence or the accident occurring a while ago. A solicitor will consider the facts of the case and will advise accordingly.
Many solicitors will offer a no-obligation consultation to potential claimants, answering any questions they have before making a decision to claim.
Even a relatively small amount of compensation can mean the difference between the stress of financial difficulties and the freedom to concentrate on recovery.
"I am concerned about legal costs I may incur as a result of making a claim"
Personal injury solicitors generally work on a No Win, No Fee basis, and will assess the likelihood of a claim succeeding before advising the claimant to proceed.
This means that if the case is lost, the claimant will not have to pay any solicitor's fees.
Personal injury solicitors should never try and pressure anyone into making a claim. Potential claimants do sometimes decide not to proceed for a variety of less-common reasons.
Reasons include not wanting to make a claim because it is perceived to be “unchristian” or not in-keeping with their religious beliefs.