Personal Injury

Q1. When it comes to health and safety at work, what rights do employees have and what obligations do employers have?

Employers are legally responsible for the health and safety management of their employees. They must do whatever is reasonably practicable to protect their employee’s health, safety and welfare.

In order to do this employers have legal duties to assess the risks to their employees in the workplace. Any identified risk to the employee should then be addressed by the employer and any risk eliminated or reduced as far as reasonably practicable, this can include training of employees and safety measures.

Employers should have a health and safety policy in place for the protection of their employees. Employees should be made aware of the employer’s safety policies and procedures. The obligations on employers depend on the size of the business and the number of employees.

For particularly high risk activities there are specific rules and obligations on employers that are imposed by law.

Employers are required to consult their employees on health and safety. This can be by speaking to them directly or via a health and safety representative.

If employees think that their employer is exposing them to risk or is not carrying out their legal duties they should inform their employer of this in the first instance and, if no satisfactory response has been received, workers can make a complaint to the Health and Safety Executive.

If an employer fails in their health and safety duties and an employee is injured as a consequence the employee has the right to pursue a civil claim for compensation against their employer.

Q2. What is classified as a work-related illness and how can a solicitor help you to make a claim?

A work related illness is an illness which is caused or contributed to by a work activity. The work activity may not have caused the condition but may have aggravated a pre-existing condition.

Examples of some of the compensable work related illnesses are asbestos related illnesses where the exposure to asbestos occurred whilst undertaking a work related activity, industrial deafness, industrial asthma, stress, dermatitis and vibration white finger.

A solicitor can help you to make a claim by investigating exactly how the illness came to develop, what caused the illness and to identify who was and may now be responsible for paying compensation for the illness.

A solicitor can also assist you in ensuring that you are obtaining the correct benefits for the illness from which you are suffering.

Q3. What issues can arise when making a claim against employers?

Some work-related illnesses develop many years after a sufferer has left the work place. A good example of this is asbestos related illness claims where the illness may develop over 20 years after work place exposure to asbestos.

In these claims the employer may have ceased trading or an employee may no longer be able to recall exactly who they worked for. If the sufferer was an employee it may be possible for a solicitor to obtain their employment history in order to assist in providing the identity of a defendant.

If the company is no longer trading a solicitor may be able to trace the insurer for the company and to direct the claim to them.

If the person suffering from a work-related illness remains working for the company that caused their illness there may be issues relating to their employment rights on which a solicitor can advise.

Q4. Is there a time limit on making a work-related illness claim?

Yes. Strictly speaking the time limit for issuing a work-related illness claim with the court is usually three years from the date of diagnosis (NOT three years from the date of exposure).

It is worth getting advice from a solicitor who is specialist in this area as the circumstances involving work-related illness claims may mean that calculating the time limits are more complex than in other types of claim.

Q1. How do I know whether I can make a personal injury claim?

If you are able to prove that you have suffered an accident that was not your fault - for example a road traffic accident caused by somebody else, or an accident at work where you have not been issued the correct safety equipment - you may have the basis of a claim for compensation.

Q2. Is it wrong to claim?

The law exists to provide redress and compensation for people injured through no fault of their own. Insurance companies sometimes try to criticise people for claiming compensation for personal injury. They say that to reduce the number of claims that are made. However, you should not be embarrassed or feel ashamed about making a claim when you have been injured or affected financially by the negligent actions of others. Not only have we as a society decided that such claims are appropriate and that the state should support them, but insurers are secretly pleased that such claims are made since if there were no claims then there would be no need for insurers.

Q3. Is there any time limit for consulting a solicitor about a potential claim?

Yes – most personal injury claims must be started in court no more than 3 years after the accident if the claimant is an adult, or no more than 3 years after their 18th birthday if the claimant is a child. However, different time limits apply to some different types of claim, so the sooner you consult a lawyer, the less the risk for you.

Q4. How will my claim be funded?

Many people have the benefit of legal expenses insurance with their home or motor insurance or even attached to some credit cards. That insurance may provide cover in cases of personal injury. Some people are members of a trade union which may provide them with assistance. In the event that you have no insurance or trade union cover, Battens may well be able to offer you a no-win-no-fee agreement tailored to your specific circumstances.

Q5. How long will my claim take?

It is often impossible to give a precise indication of the future timescale. In general, though, straightforward personal injury claims are often concluded within 9-12 months from the date the claim commenced. This will however depend on how long the recovery from the injuries takes, on whether additional treatment is recommended for the patient before a final prognosis can be given, and so on. More protracted claims, in particular claims which involve a long recovery period, Court proceedings and possibly also a trial, may take 2 years or more to conclude.

Q6. Will I need a medical examination?

Yes – in most cases you will need to see an independent medical expert who will examine you and prepare a report detailing the injuries you have suffered and saying whether you are likely go on to make a full recovery. This report will be used to value your claim for the purposes of settlement, and if the claim goes to a final hearing the Court will consider it.

Q7. How much compensation will I get?

In most personal injury cases, you will be able to claim for the pain, suffering and any limitations caused to your day-to-day living as a result of your injuries. This will be calculated by reference to the expert medical evidence. In addition, you can make a claim for financial losses you have suffered as a result of the accident, for example loss of earnings.

Q8. What deductions will be made from my compensation?

In many cases, we will make no deductions, to take towards your legal fees, from the compensation that you receive. It may though be necessary for you to pay from your damages the premium for an insurance policy if you decide to take one out - such a policy would protect you against the risk of having to pay expenses of the claim and the other side’s costs if your claim was not successful.

Q9. Will I have to go to court?

The vast majority of personal injury claims are settled without the need to go to court. There are however some occasions where a suitable settlement cannot be agreed with the Defendant, and those claims need to go to Court so that a Judge can make a decision about them.

Q10. What information will I need to provide to my solicitor at the first appointment?

As well as a full description of your accident and details of the people involved, your solicitor will need details of any legal expenses insurance you may have, the injuries that you have suffered, treatment you have had so far and any future treatment that has been recommended, and expenses you have had to pay out as a result of your accident. Do also bring with you any paperwork you have which relates to any of those areas.

Q1. What is a primary victim?

The injury was reasonably foreseeable.

They have to have close ties of love and affection with the injured person (who is known as the primary victim), such as a parent, child or spouse.

The secondary victim has to witness the accident or the immediate aftermath. You therefore need to be present at the accident or immediately afterwards, as you need to be able to show proximity to the accident in terms of time and space, such as witnessing a car crash.

The secondary victim has to suffer a recognisable psychiatric injury caused by the Defendant’s negligence. The things to look out for are flashbacks, nightmares, trouble sleeping, unable to work. You should also ask whether the secondary victim is receiving counselling and/or prescribed anti-depressants. Normal grief is not sufficient. Medical evidence will be required to support any psychiatric injury suffered by the Secondary victim.

The injury was caused by nervous shock as a result of a sudden perception of death or risk of injury to the primary victim. Nervous shock in Alcock was noted as being sudden appreciation by sight or sound of a horrifying event which violently agitates the mind. Being told by a third party is not enough. A secondary victim has to perceive death, injury or risk of injury by sight or sound.

A primary victim is a person who suffers injury or death as a result of a Defendant’s negligence.

Q2. What is a Secondary Victim?

A secondary victim is a person who suffers psychiatric injury as a result of witnessing injury, fear of injury or death of a loved one, who is the primary victim.

Q3. Who can be a secondary victim?

Someone who has a close tie of love and affection with the primary victim and witnesses injury, fear of injury or death of their loved one.

Q4. What control tests have to be met for secondary victims to be successful in making a claim for damages for psychiatric injury?

There are 5 control tests which have to be met which were decided in a House of Lords case known as Alcock v Chief Constable of South Yorkshire following the Hillsborough Disaster.

They are as follows:-

Q5. Do I need to satisfy all the control tests decided in the case of Alcock?

Yes - not all cases succeed as they do not meet all the control tests set out above such as in the case of Taylor v A Novo Ltd 2013. This was a case where the claimant who was the secondary victim’s mother was injured in an accident at work. 3 weeks later the mother developed a pulmonary embolism and died suddenly. The claimant suffered psychiatric injury as a result of witnessing her mother’s death. The claim however failed on the grounds that the claimant was not present at the scene of the accident. There was too much time separating the accident and the sudden death of her mother.

Q6. What do I need to do if I wish to make a claim as a secondary victim?

You need to seek legal advice from a lawyer and establish whether you meet the control tests which I have discussed above.

Q7. How would my claim be funded?

We consider every claim to see whether a conditional fee agreement otherwise known as a no win no fee agreement can be offered to each client, but there are other options which we would discuss at our meeting with you.