The Legal Dictionary: Simple Legal Definitions
Welcome to the claims.co.uk online legal dictionary. You can use the search box below to find the definitions of certain legal terms, or use the simple alphabetised menu to find what you’re looking for.
Acceptance of Service
Acceptance of service refers to the legal authority of someone who can accept the service of a claim form on behalf of the defendant; or the defence on behalf of the claimant. A business address is required for service of documents by post.
Usually, a solicitor will accept documents on behalf of their client. Acceptance of service can also be carried out by fax, or digitally via email address or other electronic forms.
Accident and Sickness Insurance
An employee can take out accident and sickness insurance to cover the risk of being off work, either temporarily or permanently out of work, because of accident or illness. If that happens, the insurer will pay a regular tax-free income in accordance with the specific policy terms.
Businesses are legally required to keep an accident book if they have more than 10 employees, or if they have fewer employees but they own or occupy a factory, mine or quarry. If an accident occurs on their premises, the details of the accident must be recorded in the accident book.
It should record the date and time of the incident, the details of the person injured, the cause and nature of those injuries, and what action was taken to treat the individual. This formal record of the accident will be important evidence in any ensuing injury claim.
An Accident claim is a claim for financial compensation against an individual or organisation, by someone who has suffered personal injuries. For an accident claim to be successful, the individual or organisation must be shown to be negligent and responsible for the alleged injuries.
An accident claim is usually settled without going to court, but sometimes it will be necessary for the court to decide the claim if the claim is defended.
Accident Record Book
Accident records must be kept by all employers to enable accidents to employees, contractors and visitors to be formally recorded. When an accident happens, the date and time should be recorded, along with the name and role (if relevant) of the victim, the nature of the injuries sustained and how it happened.
The formal record will amount to vital evidence in any subsequent personal injury claim against the employer/organisation.
Acknowledgement of Service
An acknowledgement of service is a document that the defendant will complete and return to the court after receiving the claim form from the claimant. An acknowledgement of service is appropriate where the defendant intends to defend some or all of the claim against it. It should be sent to the court within 14 days of receiving the claim form, however, if the acknowledgement of service is not returned, the claimant may apply for summary judgment.
Acquired Brain Injury
An acquired brain injury is a brain injury that is not caused by a direct trauma to the head (traumatic brain injury) but is acquired by a condition or other circumstances. Examples of acquired brain injuries include injuries caused to the brain before or during birth; and injury and damage caused to the brain as a result of tumours and cancers, strokes and toxins.
Compensation is available for victims of acquired brain injury where it resulted from negligence, eg. medical negligence at birth, compression to the back of the neck, and toxins leading to brain injury.
An adjournment is a temporary halt or postponement of a trial or other court hearing. An application to adjourn may be made by either party in the litigation, and could be on the grounds of ill health, non-attendance of a witness, or for procedural reasons.
A request for an adjournment in proceedings can be considered by the court when the views of all parties have been received. If an adjournment is ordered, the court will set a new hearing date that is convenient to all parties.
Adjudication is a way to resolve a dispute without going to court. Adjudication is quicker and far less costly than court action. Whilst adjudication is not currently used in the UK to settle personal injury claims, it is used in relation to industrial injuries and disablement benefit under the Social Security Administration Act 1992. An adjudication officer may be required to adjudicate the question of whether an accident was an industrial accident for the purposes of a benefit claim by the injured person.
After the Event Insurance
After the Event (ATE) insurance is typically taken out at the start of a no win no fee case to protect the financial risk of losing the case. If you lose your claim (or you unsuccessfully defend a claim), you will have to pay some or all of the winner’s legal fees and costs. ATE insurance covers this risk.
An allocation hearing is a court hearing at which the judge will decide whether a claim should go ahead on the fast track or the multi-track. An allocation hearing is necessary where the court has not been able to decide which track the claim should be allocated to on the basis of the allocation questionnaire alone.
Lawyers for both parties will make representations at the allocation hearing to help the judge decide which track is appropriate. The judge will then make an order for allocation.
Both the claimant and defendant must complete an allocation questionnaire when proceedings have been started. Once lodged with the court, the judge will then allocate the claim to the appropriate track.
The questionnaire asks for various details from the parties about the amount claimed, the nature of the claim, and its complexity - eg. if it’s an industrial disease claim. If insufficient information is given, or the parties disagree about which track the claim should proceed on, the court may require an allocation hearing to hear further representations before deciding how to allocate the case.
Alternative Dispute Resolution (ADR)
Alternative Dispute Resolution (ADR) is a common method to resolve personal injury claims, and other civil claims. In fact, most personal injury cases are resolved without the need for litigation. ADR in personal injury cases usually takes the form of 'joint settlement meetings', mediation, 'early neutral evaluation', or offers and negotiations between the parties via their lawyers.
An annuity is a policy bought from a life insurance company, paid for by the defendant with a lump sum. In personal injury compensation claims, an annuity is often used to meet periodical payments paid under a structured settlement. Under an annuity, the annual income will remain fixed, or grow in line with inflation. It will usually last for the whole lifetime of the claimant.
The benefit to the defendant is that it does not have to actively manage the periodical payments to the claimant throughout their lifetime. Instead, it is managed by the life insurance company.
If you lose your case but you think you should have won, you can appeal to a higher court. However, you can only appeal on a point of law. This means you can appeal if you think the trial judge was wrong, or because it was unjust - but not if you feel it just wasn’t fair.
If you want to appeal, a notice to appeal must be made within 21 days. The court will only grant permission to appeal if there is a genuine prospect of success, or there are some other compelling grounds for the appeal to be heard.
Arbitration is a formal method to resolve a civil claim. It is similar to formal court action but has the benefit of greater flexibility for the parties involved. Hearings are held in private, and the final decision is binding on the parties.
Unlike judges in courtroom proceedings, the parties can choose which arbitrator to appoint. This means they can agree on an appropriate expert to arbitrate; for instance, a specialist barrister. Arbitration is not yet commonly used in personal injury claims, but there are now specialist arbitration services being established.
Assessment of Damages Hearing
An assessment of damages hearing is a final hearing which is necessary where the defendant admits liability, but the quantum of damages or compensation cannot be agreed between the parties. Submissions will usually be presented by each party’s barrister. There may be evidence from experts and other witnesses.
Once the evidence has been presented, the judge will make a decision as to the appropriate compensation award. The judge will give reasons for deciding the claim is worth the amount ordered.
Association of Personal Injury Lawyers
The Association of Personal Injury Lawyers (APIL) is a ‘not for profit’ association made up specialist personal injury lawyers. It campaigns for the rights of injured people, for better access to justice, and changes in the law to improve the services for injured people. Instructing an APIL accredited personal injury solicitor can ensure you have specialist advice and representation for your claim.
If you have a severe disability caused by an injury, and you need someone to help care for you, you may be entitled to attendance allowance. To be eligible, you must be physically or mentally disabled, and at least 65 years old.
Attendance allowance is available at a rate of £57.30 per week or £85.60 per week depending on how much care you need. If you are entitled to attendance allowance, you may also be entitled to an increase in your other benefits.
A barrister - also known as 'counsel' – is a lawyer who is a specially trained advocate and can represent you in court to present your case on your behalf. Most solicitors (except Solicitor Advocates) are not qualified to advocate in open court in personal injury cases. Instead, they instruct a specialist personal injury barrister to put forward your case, providing them with all the information and expert evidence required to put the strongest possible case to the court on your behalf.
As a specialist, your barrister can also provide their 'Opinion' on the merits of your case. This can help you and your solicitor decide how to best progress your claim (or defence).
Benefits Agency Adjudication Officer
A Benefits Agency Adjudication Officer may be required to fully assess a person’s application for welfare benefits. They have the power to determine the question of whether an injury was an industrial injury for the purposes of disablement benefit, and can also refer a case to a medical appeal tribunal for further consideration.
Close relatives of the victim of a wrongful death can bring a claim for bereavement damages under the Fatal Accidents Act 1976, in addition to a dependency claim. The purpose of bereavement damages is to compensate the claimant for their grief and suffering following a loved one’s death which result from negligence. A bereavement claim can be made by the deceased’s wife, husband or civil partner; or the parent if the deceased was under 18. It is not available to a co-habitee of the deceased.
Unlike dependency claims, there is a fixed amount available for bereavement damages which is currently £12,980.
Breach of Statutory Duty
A breach of statutory duty is the failure of a person or organisation to perform, or comply with, a duty imposed on them by statute. For example, employers are under specific statutory health and safety duties for the protection of staff and others on their premises. If they breach their health and safety duties and someone is injured as a result, they will be liable for the breach.
In common law negligence, there must be a duty of care towards the claimant which may not necessarily be imposed by statute. However, in some cases there can be both common law negligence and breach of statutory duty.
Burden of Proof
The burden of proof in personal injury claims means the burden of proving the other party was responsible for the facts it says caused the injuries. Usually, this means the burden of proof is on the claimant to prove the defendant was negligent and caused the personal injuries for which compensation is claimed.
However, if the defendant counterclaims against the claimant, it is for the defendant to prove its case. Similarly, if the defendant files a defence that is more than a mere denial, the burden of proof is on the defendant to prove the facts set out in its defence.
A carcinogen is a cancer-causing substance such as radiation, biological agents, asbestosis fibres, silica, mineral oils and wood dust. Carcinogens can be found in some types of workplace, such as factories and printing works. A worker who has been exposed to a carcinogen may develop cancer later in life, and may be able to claim personal injury compensation against the employer.
If your injuries mean you are disabled to the extent that you need substantial care, your carer may be entitled to Carer’s Allowance. The current rate (as at June 2018) is £64.60 per week for a carer looking after someone for 35 hours a week or more. However, if your carer receives Carer’s Allowance, your own benefits may be affected.
Case law is the law created or interpreted by judges when they make their final decisions at the conclusion of court cases. Case law is one of the most important sources of UK law, alongside Acts of Parliament and regulations, and has been developed over the centuries. It often sets a precedent for future cases.
The lower courts are bound by the case law made by the higher courts, though the higher courts sometimes re-interpret the law to reflect, for example, new legislation and societal changes. Lawyers and the courts refer to case law when deciding how the law might apply to a claim to enable them to properly advise and represent their clients.
The civil courts have a vital role in effective case management of personal injury claims. This means they must ensure the case proceeds efficiently and in strict accordance with the Civil Procedure Rules (CPR).
The courts’ overriding objective under the CPR is to deal with cases justly by, for instance, ensuring the parties are on an equal footing, that cases are dealt with expeditiously and fairly, and that there is appropriate allocation of court resources. The courts do this by exercising their powers to manage, direct and control how proceedings are to progress.
The most serious personal injuries are also known as catastrophic injuries. Catastrophic injuries are permanent and life changing, and could also result in death. Examples of catastrophic injuries include traumatic brain injuries, serious birth injuries, third degree burns, and quadriplegia.
Any personal injury compensation for catastrophic injuries will typically be substantial to cover a lifetime of potential medical care, rehabilitation, carers’ costs, equipment and suitable housing. Claims may also take many years to finalise, and periodical payments to the claimant may be appropriate.
Causation in personal injury is a legal principle referring to the link between negligence and the injuries. There must be causation for the claimant to succeed in a personal injury compensation claim. There will be causation if the injuries directly resulted from the actual negligence. Expert medical evidence is usually relied on to prove causation.
If negligence can be proved, but the injuries were the result of something else - eg. the victim’s own actions or it was a genuine accident - causation cannot be proven and the claim will fail.
Cause of Action
A Cause of Action in personal injury is a fact or facts, or circumstances that are sufficient to justify the injured person to enforce their legal right to compensation. Cause of Action is particularly important because you must start legal proceedings within the limitation period (usually 3 years) - which starts from the date the Cause of Action arose, or from your date of knowledge that you have a Cause of Action.
Civil Restraint Order
A civil restraint order is an order made against a party who has issued legal proceeding or made applications which are without any merit. Its purpose is to restrain the party from making any further applications in the proceedings without the Court’s permission. One of the parties can make an application to court for a civil restraint order against the other party.
Where the court dismisses or strikes out a party’s statement of case or application which is entirely without merit, the court order must state that fact – and must also consider whether to make a civil restraint order.
The claimant is the person bringing the personal injury claim against the defendant. So, for example, if you have been injured at work or in a road accident and you are claiming compensation from an insurance company; or you are suffering a disease as a result of exposure to chemicals at work and claiming against your employer – you are the claimant.
Claims Case Manager
A claims case manager is a person responsible for assessing the recovery of seriously injured claimants and their rehabilitation needs. Usually, the case manager is a health professional, such a nurse or physiotherapist, though some case managers are social workers. Typically, they are paid for by the insurer of the party at fault.
The role of a case manager includes considering how much care, adaptations and equipment are required, what domestic help is needed, and whether any help at work is required if the claimant will be able to return to their job. The case manager will usually liaise with the claimant’s doctors and solicitor.
Claims Management Company
Claims management companies (CMCs) are businesses dedicated to making accident and personal injury claims, working to secure compensation for victims. However, the majority of claims handlers (also known as claims assessors) at CMCs are not solicitors and do not have the legal qualifications to represent claimants in court. Furthermore, if the company does not use a solicitor, the claimant may win less compensation than if they use a personal injury solicitor.
All CMCs must have government authorisation to carry out their business. They must also comply with specific rules in relation to the way they run their business, deal with clients, and advertise their services.
The Claims Portal is used for all personal injury claims falling within one of the pre-action protocols. It enables claims to be initially processed online safely and securely by facilitating safe digital communication and transfer of information between the parties.
The Claims Portal means that claims are more cost effective and, through basic validation checks at the outset, ensures consistency in the exchange of information. There is no cost to using the Portal as it is funded by insurers through a levy.
Clinical Negligence (also called Medical Negligence)
Clinical negligence is the breach by a doctor, dentist or other health professional, of their duty of care to their patient. Clinical negligence arises where the doctor (or other professional) fails to take reasonable care that would be expected of a competent doctor of their experience in those circumstances.
Clinical negligence can arise in many scenarios, including during a surgical procedure that was not properly carried out; GP errors; a failure by a doctor to diagnose an illness; being prescribed or given the wrong medication; aggressive or needless dental treatment; and failure to warn of common side effects of a treatment plan.
Common Law Duty
A common law duty is a legal duty or obligation of one person (or organisation) towards another, which requires them to act with reasonable care while performing various acts or responsibilities. A common law negligence claim is founded on the common law duty of care.
This common law duty is not found in legislation but is a principle established through the common law. However, there is an overlap between statutory duties of care and the common law duty of care.
Community Care Assessment
An injured person may require a community care assessment under section 47 of the National Health Service and Community Care Act. This assessment will normally be carried out by social services, and is necessary to decide which local authority services may be needed, such as a care package or suitable accommodation - taking into account the claimant’s rehabilitation needs.
The purpose is to enable the individual to live as independently as possible. In an assessment, any personal injury capital payment previously received must be disregarded, but the income received on it can be taken into account.
Compensation Recovery Unit
The Compensation Recovery Unit (CRU) is a government body, with responsibility for recovering social security benefits paid to the victims of negligence who win compensation. The CRU can recover the amount of benefits paid from the relevant insurer, hospital costs following emergency treatment, and costs incurred by Ambulance Trusts.
Comprehensive motor vehicle insurance is an insurance policy under which compensation is paid to a victim of a road traffic accident who was not at fault.
Conditional Fee Agreements
Conditional Fee Agreements (CFAs) are common in personal injury and clinical negligence claims, and are often known as no win no fee. A CFA is usually underpinned by an insurance policy called After the Event (ATE) insurance. Under the terms of a CFA, if you win your claim you will have to pay a percentage of the compensation you receive to your solicitors, as well as the ATE premium. The CFA will state the percentage due, but this is capped at 25%. The losing party will be responsible for your legal fees.
If you lose your case, you will not normally have to pay anything except for expenses incurred, for instance, expert medical reports and court fees. These will be covered by the ATE insurance policy.
Conflict of Interest
An important professional principle for injury lawyers is that they cannot advise or represent both sides of a claim because there would be a 'conflict of interest'. In a personal injury case, this means your solicitor cannot act for you and the other person or organisation who caused your injuries. Each needs their own independent lawyers to ensure they have truly impartial advice.
Constant Attendance Allowance
If your injuries or condition was caused at work, and your resulting disabilities are so serious you need daily care and attention, you can claim constant attendance allowance. However, to be eligible you must be receiving Industrial Injuries Disablement Benefit (or a War Disablement Pension). The rate you receive depends on the extent of your disability and the extent of the care you need.
There is contributory negligence where the claimant is partially to blame for the incident or circumstances which gave rise to the personal injuries for which compensation is claimed. It is very common for defendants to allege contributory negligence on the claimant’s part to reduce their financial liability.
For example, there will be contributory negligence where a cyclist who was not wearing a helmet when injured in a car accident; or a passenger injured in road accident who was not wearing a seatbelt. In these situations, any compensation awarded to the claimant will be reduced proportionately.
Control of Vibration at Work Regulations 2005
The Control of Vibration at Work Regulations 2005 protect workers from the risks of developing vibration white finger (VWF) by imposing limits on employers. The regulations set out an exposure action value of 2.5 m/s2 A(8) at which level employers are legally required to introduce measures to reduce exposure. A maximum exposure value of 5.0 m/s2 A(8) is also imposed.
The Health & Safety Executive (HSE) can prosecute employers who breach the Regulations, causing injury to workers.
Costs budgeting refers to the financial management of proceedings in the ‘multi track’ as the case progresses. Costs budgeting requires the parties to prepare a costs budget estimate for each stage in the litigation.
They must take into account the specific issues in the case, the necessary procedural steps and the time each stage of litigation is likely to take, and consider which lawyers will be working on the case, and their hourly rates. The parties must file and exchange their costs budgets at a certain stage in proceedings.
Costs in Any Event
Where the court makes an interim costs in any event order, the party in whose favour that order is made will recover their costs of the application or hearing from the other side – even if they lose.
Costs in the Application (or Case)
A costs in the application (or case) order in a party’s favour means that party is entitled to their costs of that application. However, if the other party is awarded costs at the end of the case, the party in whose favour the final costs order is made will not have to pay the costs of the other party of that application in which the costs in the application order was made.
A costs order is an order of the court that a party must pay its opponent’s legal costs. The usual rule on costs is: ‘costs follow the event’. This means the losing party pays the winning party’s costs. However, the court has discretion to make a costs order against another party, taking into account factors including the conduct of the parties, whether they have unreasonably refused mediation, and not following the Personal Injury Protocol.
Costs Thrown Away
Costs thrown away are awarded against a blameworthy party whose conduct has caused the other party to ‘waste’ costs unnecessarily. For example, a judgment of the court or a court order can be set aside. In those circumstances, the party who is awarded costs in that hearing is entitled to the costs incurred as a result.
Those costs cover, eg. the preparation of, and attendance at any hearing relating to that judgment or order, as well as the costs incurred for any steps taken to enforce a judgment or order that has since been set aside.
A counterclaim is a claim made against the claimant in response to the claimant’s own claim. A defendant may file a counterclaim in addition to a defence. The counterclaim must include particulars detailing the counterclaim.
In a claim following a road traffic incident, for instance, the defendant may defend the claim denying that they were at fault. The defendant might also counterclaim against the claimant on the basis that it was the claimant who caused the accident, and is liable for the defendant’s injuries. The claimant must serve a defence to any counterclaim within 14 days and, if it does not, the defendant can apply for summary judgment against the claimant.
Court of Appeal
The Court of Appeal hears appeals from a lower court, including personal injury cases from the High Court. Permission to appeal to the Court of Appeal must first be given. Permission will only be granted if there is a genuine prospect of success on appeal, or there are some other compelling grounds for an appeal to be heard. A ruling of the Court of Appeal can be appealed to the Supreme Court.
Court of Protection
The Court of Protection is a specialist court which makes decisions on financial and welfare matters for people who lack mental capacity. The Court of Protection plays an important role in many personal injury cases, particularly by appointing Deputies to manage the property and financial affairs of individuals who are mentally incapacitated.
Criminal Injuries Compensation Appeals Panel (CICAP)
The Criminal Injuries Compensation Appeals Panel (CICAP) hears appeals from decisions made by the Criminal Injuries Compensation Authority (CICA). The CICAP can uphold the decision of the CICA, or reduce or increase an award made.
An appeal must be made within 90 days of the CICA’s decision, and a CICAP decision is final.
The financial compensation you receive following a successful personal injury claim is commonly known as damages. Damages are calculated in such a way as to properly compensate you for your physical injuries and suffering, and any losses.
There are two categories of damages: general damages compensating you for your pain and suffering, and loss of amenity; and special damages to cover your actual financial losses (for example, medical expenses and travel costs to hospital).
Damages-Based Agreement (DBA)
A damages-based agreement (DBA) is a form of ‘no win no fee’ agreement between the claimant and their solicitor or other legal representative. Under a DBA, if the claim succeeds the solicitor can recover a percentage of the compensation secured as agreed under its terms as payment for the legal services provided. This means the solicitor will only be paid if the claimant wins.
DBAs are governed by the Damages-Based Agreements Regulations 2013 which sets out various requirements which DBAs must comply with, otherwise they will be unenforceable. DBAs cannot be used by defendants.
Defective premises means any properties that are poorly constructed and/or poorly maintained. Landlords and builders are liable under the Defective Premises Act 1972 for injuries which are directly caused by defective premises.
The Act makes builders responsible for building dwellings properly; and places a statutory duty of care on landlords in relation to the maintenance and repair of their premises. If the party has not complied, they are automatically liable to pay compensation to the injured party.
A defective product in a personal injury claim is a faulty product causing injuries to the claimant. These claims are known as ‘product liability’ claims. Defective products include a wide range of products and goods, as well as food and drink and other less tangible items.
Examples of defective products include items manufactured with a structural fault; food and drink that is contaminated; electrical items that overheat and explode; and items causing a severe allergic reaction. Even a lack of appropriate instructions for use, or warning notices, can render a product defective for the purposes of a compensation claim.
A defence is where the defendant formally denies or resists the claim made against them. There are various types of defence to a claim, including:
- Denying fault or negligence
- Denying any duty of care towards you
- Denying that any negligence on the defendant’s part caused your injuries
- The claim is time-barred (ie. the limitation period has passed)
It is for the defendant to prove what it claims in its defence - unless it is a simple denial, in which case the claimant must prove its claim. So if the defendant claims that a third party was responsible for your injuries, the burden of proof is on the defendant.
Department for Work and Pensions (DWP)
The Department for Work and Pensions (DWP) is a major government department responsible for welfare benefits, as well as pensions and child maintenance. It administers benefits including disability benefits and ill health benefits for individuals who are disabled following accidents, and illness and diseases contracted in the workplace.
- a surviving spouse/civil partner - so long as they were living with the deceased in the same household for at least two years before the date of death
- any parent or other ascendant of the deceased
- any person who was treated by the deceased as their parent
- any child or other descendant of the deceased
- any person who (not being a child of the deceased) was treated by the deceased as a child to the family in relation to the deceased's marriage or civil partnership, or
- any person who is a brother, sister, uncle or aunt of the deceased
A Deputy is someone appointed by the Court of Protection to manage the finances and welfare of an individual who lacks mental capacity to do so themselves, such as the victim of a serious accident. A Deputy can be an individual (such as a family member) or a professional (such as a solicitor).
Application for Deputyship is made to the Court of Protection under the Mental Capacity Act 2005. Once appointed, a Deputy is effectively an agent of the Court of Protection and they must comply with the Mental Capacity Act in performing their role.
A direct payment is a payment made to an individual following a community care assessment. Direct payments can be made to a personal injury claimant who the local authority has assessed as needing help - but who has chosen to receive the money directly and pay for their own care and support, rather than through the health and social care trust.
Court directions in a civil claim are, essentially, the court’s stated timetable of the claim and instructions as to how the claim is to progress. The court give its directions only after proceedings have been issued and a defence filed.
Directions are necessary to enable the parties and the court to understand the issues, to be clear on which aspects of the claim are in dispute, what arrangements should be made for the hearing, and the timetable to work to. The parties must comply with the directions of the court.
If you are entitled to certain benefits as a result of personal injuries, you may also be entitled to an additional amount called disability premiums. There are two categories of this premium:
- Severe disability premium paid at £64.30 per week if you or your partner qualify; £128.60 if both you and your partner qualify
- Enhanced disability premium paid at £16.40 per week per person; £23.55 for couples if at least one of you qualifies
Eligibility depends on factors including what benefits you are already receiving, your disability, and whether someone receives Carers’ Allowance to look after you.
Disbursements are specific payments made on your behalf by your lawyers as and when they arise. These costs are separate to your solicitors’ legal fees. Examples of disbursements that would typically be incurred include court fees, the costs of medical examinations and expert reports, some administrative fees and counsel’s fees.
Whether or not you recover these at the end of the case depends on who wins, and what agreement is in place with your solicitor. The usual rule is that the losing party is responsible for reimbursing the winner’s costs and disbursements.
Disclosure is the handing over of all relevant documents and information by one party to the other so that both sides have all the information about the other’s arguments. Disclosure is a key stage in personal injury proceedings and enables the parties to understand each other’s position. It can also help the parties settle the claim before the litigation progresses.
Disclosure does not require everything to be disclosed to the other side. Documents and information protected by the legal privilege is protected from disclosure. The parties are required to prepare a list of documents that have to be disclosed.
Duty of Care
Where an individual or organisation is expected to exercise reasonable care to protect others, they owe a legal duty of care to those individuals. A duty of care means a legal obligation and responsibility to take reasonable steps to protect the safety and wellbeing of others.
For example, a duty of care is owed by employers to their staff; by supermarkets to shoppers in their stores; by doctors to their patients; by restaurants to their customers; by schools to their pupils – and by manufacturers to products users. If no duty of care exists, any negligence claim will fail.
Duty to Mitigate Loss
In a compensation claim, the claimant is generally expected by the other side to mitigate their loss. This means they should keep their claim to a reasonable minimum. The purpose of compensation is to put the claimant back into their pre-accident position as far as possible.
For example, a claimant claiming travel expenses to get to hospital appointments cannot reasonably claim for return taxi fares, if they could easily drive or use public transport. Similarly, the cost of replacing a written-off vehicle or damaged clothing should not be unreasonable in view of the make or value of the previous vehicle or clothing.
Early Neutral Evaluation
Early neutral evaluation is a form of alternative dispute resolution. The parties’ lawyers meet in front of an independent, neutral third party - an expert in personal injury litigation - who will hear an outline of your case and the other side’s case. The third party will determine and evaluate the central issues; assess the merits of the claim; and consider the potential for settling the dispute.
Any such evaluation is not binding on the parties but it gives both sides a neutral view to consider which can be invaluable in negotiating a settlement.
Employers’ liability arises where an employer is held responsible for an accident in the workplace. Where an accident takes place at work, during the employee’s usual course of employment, any ensuing personal injury claim will be against the employer. In practice, the claim will be against the employer’s insurance company under their employers’ liability insurance cover.
Employers’ Liability Insurance
Employers’ liability insurance is insurance which covers the financial risk of personal injury claims by employees and workers following accidents in the workplace. Employers with at least one employee are legally required to have employers’ liability insurance in place.
This insurance will cover the legal fees and costs, and any compensation for which employers are liable, should an individual be injured in the workplace.
Employment and Support Allowance (ESA)
Employment Support Allowance (ESA) is a benefit that you can claim if your ability to work has been affected by injury, and this has meant you are off work for longer than 28 weeks. Usually, you are not allowed to work while receiving ESA.
The amount you may receive depends on your specific circumstances. ESA will be either contribution-based ESA, income-related ESA - or both, depending on your income, savings, and other factors.
An expert report is a report written by an expert witness which will be used as expert evidence in proceedings. In personal injury cases, there will invariably be an expert report written by a doctor or other health professional. The report will typically be compiled following a medical examination of the claimant, and based on their medical records.
The expert report must be in a format set out by the Civil Procedure Rules (CPR) and fulfil further requirements under the CPR. For example, it must be verified by a statement of truth.
Fatal Accident Claims
Compensation following a fatal accident claim may include bereavement damages and dependency damages, as well as compensation that the victim would have been entitled to claim before death. In other words, their claim does not die with them; instead, the right to pursue the claim passes to their estate.
The final hearing in personal injury proceedings is the main hearing which will conclude the matter. At the final hearing, the court will hear the evidence and decide on ‘quantum’, liability – or both. Where liability is not admitted, the final hearing will effectively be a full trial, with witnesses for both parties giving their evidence. The witnesses and the parties will be cross examined before the judge assesses the evidence, and reaches a final decision on the issues.
A final hearing will not be required if the claim is settled beforehand.
Financial loss in a claim means losses on which an actual financial value can be placed (eg. loss of earnings, travel expenses and the cost of medical care), which are directly attributed to the injuries. Financial loss is compensated by way of special damages, and includes both past and future losses, including loss of future earnings and bonuses, and loss of pension benefits.
Calculating the appropriate compensation for financial losses can be a tricky business as it is often based on hypothetical situations, so the courts often use what are known as multipliers and multiplicands.
Foreseeable harm means the harm that a reasonable person would have anticipated being caused by doing - or failing to do - something. It does not require a ‘crystal ball’ test such that if negligence causes harm, compensation is always payable no matter how ‘remote’ the potential for harm. Instead, the victim needs to prove that the harm suffered was reasonably foreseeable to succeed in a personal injury claim.
The appropriate test is objective, ie. the harm must be reasonably foreseen for the negligent party to be held liable. So, for example, if you run a red traffic light, it’s reasonably foreseeable that an accident and serious injuries could result. However, if a witness to the accident suffers psychological harm as a direct result – that harm would be too remote to have been reasonably foreseeable.
Fraud in personal injury claims is a growing problem, and essentially means any attempt to claim compensation to which the individual is not actually entitled. Fraud includes:
- Claiming for non-existent injuries
- Exaggeration your injuries or condition
- Exaggerating the actual financial losses (eg. earnings) resulting from your injuries
- Claiming for injuries unrelated to the accident itself
- Engineering an accident for the purpose of claiming personal injury compensation against an insurance company
Personal injury lawyers are under a professional duty to be alert to potential fraud on the part of claimants. Fraud in personal injury claims is taken very seriously by insurers and the authorities, and a claimant can expect severe penalties for fraud or attempted fraud.
Full and Final Settlement
Usually, when a settlement has been agreed with the other side in a personal injury claim, it will be in full and final settlement. This means the claimant cannot later try to claim more money after the date of the settlement agreement (or the settlement is approved by the court).
Even if your injuries worsen, or your recovery is more complex and expensive that you anticipated, you will not be able to reopen a ‘full and final’ settlement. In these circumstances, the only option may be to bring a professional negligence claim against your personal injury lawyers if you think you were not given adequate advice.
Future losses in a compensation claim are those ongoing financial losses a claimant would have reasonably expected not to suffer had the injuries not occurred. Future losses include loss of future earnings, loss of bonuses, loss of pension benefits, accommodation costs and the costs of care and services, and other future medical and transport aids.
Any compensation you receive for pain and injuries, suffering and ‘loss of amenity’ is known as general damages. It covers ‘non-pecuniary’ losses (they do not have a cost or price tag) and there is no fixed figure for injuries. Instead, general damages are calculated based on a number of factors including the severity of your injuries, the length of recovery, your age and life expectancy - and formal Guidelines.
These Guidelines are published by the Judicial College. They set out a range of acceptable levels of general damages for specific injuries.
Gross negligence is a very severe degree of negligence and is most likely to be found in the medical negligence context. In some cases, the court will expect the claimant to show there has been gross negligence by the defendant in order for a successful claim. A finding of gross negligence (as opposed to negligence) will not generally mean a higher level of compensation.
Grounds of Appeal
If party loses a case but they believe the judge’s decision was wrong, they may be able to appeal the ruling. When you appeal, it will be on the basis of one or more grounds of appeal. Grounds of appeal may, for instance, be that the judge misinterpreted the law, or that there was a serious procedural irregularity, or new evidence has come to light meaning the ruling is unfair.
The grounds of appeal are the most important part in an appeal, and your lawyers need to set them out clearly and persuasively for the court hearing the appeal.
If many people have been injured in an accident, or as a result of a common cause (such as food poisoning or defective drugs), a collective legal action may be taken against the defendant on behalf of some or all of the potential claimants. This is known as a group litigation and is generally pursued by one law firm.
The benefits of a group litigation are that resources are effectively pooled, reducing the number of lawyers involved, and therefore the costs of taking individual actions. It offers strength in numbers, and means a streamlined and efficient claim on behalf of the group of claimants.
Group Litigation Order (GLO)
For a law firm to pursue group litigation on behalf of a number of personal injury claimants with claims of a similar nature, the court must first make a Group Litigation Order (GLO). A GLO is a court order formally allowing a group of claimants to take action collectively against a defendant. The GLO also enables the court to manage a group of similar claims so that the litigation can be run smoothly and efficiently.
Heads of Claim
Heads of claim (or heads of loss) refers to the different types or categories of damage a party has sustained. The different heads of a personal injury claim include pain and suffering and loss of amenity, psychological injury, loss of wages or salary, damage to clothing or property, loss of prospects, loss of pension, rehabilitation costs, and ability to undertake hobbies, housework, etc.
Some cases may have just one head of claim, while others may have many. Heads of claim are important because the monetary value of each will need to be assessed separately.
Health & Safety Executive (HSE)
The Health & Safety Executive (HSE) is an important government body responsible for regulating and enforcing health and safety in the workplace across Great Britain. The HSE works to prevent injury, death and ill health in the workplace by issuing guidance, undertaking research, and investigating workplace accidents.
Employers have a duty to report certain workplace incidents to the HSE, including workplace deaths and specific ‘reportable’ injuries ranging from fractures, to burns and crushing injuries. The HSE has the power to prosecute businesses for breach of health and safety laws and regulations.
A holiday claim for compensation can be made by someone who has suffered injuries or illness while on holiday as a result of someone else’s negligence. Typical holiday claims include trips or falls, food poisoning, swimming pool accidents, and coach and minibus crashes.
Holiday claims pose unique issues because they typically arise in a foreign country, ie. a different jurisdiction to England and Wales. This means a different set of laws could apply, and language barriers and overseas regulations to navigate.
ILO List of Occupational Diseases
The International Labour Organization (ILO) List of Occupational Diseases sets out a list of diseases and conditions which are globally recognised as occupational diseases, ie. caused at work. The detailed list includes illnesses caused by chemical, physical and biological agents, hearing problems, skin conditions, cancers, parasitic diseases, and mental health disorders.
Immediate Needs Assessment (INA)
An immediate needs assessment (INA) of an injured person may be required by the insurance company and will usually be arranged by their solicitor. The sssessment is most likely where the injuries are serious, and will impact long term on the most basic day to day living of the individual.
The assessment is carried out by an independent specialist in care and rehabilitation who will review all the medical (and other) reports provided. The expert will also visit the individual and any family, then produce a report setting out the person’s immediate needs in their everyday life. This could include recommendations about adaptations to the home, the need for a cleaner or domestic help, the provision of aids and equipment, therapeutic interventions, and so on.
If a party fails to meet a court deadline, they are known as being in default. During the course of proceedings, there are a number of important deadlines set by the court to enable the case to progress smoothly and quickly. If a party is in default, they risk sanctions being imposed by the court. The most likely sanctions include a costs penalty, judgment in default, and the claim or defence being struck out.
Industrial diseases are illnesses and conditions caused or contracted by the victim while at work. They are the result of unsafe or dangerous working environments as a result of negligence or health and safety breaches.
Typical industrial diseases range from hearing damage, asbestosis and other cancers, vibration white finger, respiratory problems, and repetitive strain. Compensation claims for industrial diseases are made against the employer’s business (who will have appropriate insurance in place).
Industrial injuries are injuries caused to an employee, or to an individual in government approved training programmes, in an accident at work.
Industrial injuries are usually caused when an employer’s health and safety procedures fail, through a lack of suitable training and supervision, or there is other negligence in the workplace. Typical industrial injuries range from forklift injuries, loss of limbs, head injuries and chemical burns. Compensation claims for industrial injuries are made against the employer’s business (who will have appropriate insurance in place).
Industrial Injuries Disablement Benefit (IIDB)
Disablement benefit (also known as IIDB) is available for a claimant who has been injured (or contracted an industrial disease or illness) while they were a paid employee or a trainee on a government-approved training scheme. In addition, the injury, disease or illness must have caused a disablement. You will be assessed so that it can be determined – as a percentage - how much the disability affects you. Usually, you have to be at least 14% disabled to secure this benefit.
The amount of disablement benefit depends on your age, and the percentage disablement assessed. The current rates (as at June 2018) range from £34.96 per week (20% disabled) to £174.80 (100% disabled). Payments may be limited in time or for life.
Inspection is a key part of the discovery process and refers to when the parties exchange their documents for inspection by the other side. Sometimes, the court will also order specific inspection requiring a party to permit inspection of the document/s referred to.
If a party fails to disclose a document for inspection, they may be prevented from relying on it (unless the court allows it). They can also be heavily penalised by the court for their failure to disclose.
Interim Costs Orders
An interim costs order is any order made by the court at various stages of the proceedings in relation to who is responsible for legal costs. There are different types of costs order including: no costs order, wasted costs order, non-party costs order, costs in the application (or case), costs in any event, and costs thrown away. These vary depending on who the judge decides must bear the costs, and why.
An interim hearing is any hearing that takes place during the course of the proceedings, but before the final hearing. For example, there may be a hearing at which the court will assess case management issues and make ‘directions’ as to how the case will progress, and what the parties must do by a certain date.
Interim hearings are not always needed; however, in complex or high value cases, there can be a number of interim hearings.
An interim payment is an upfront payment made to a claimant who needs immediate financial help. The cash may be needed to access treatment, to finance the costs of rehabilitation, etc, in serious cases. Interim payments can be made where the defendant admits fault.
Compensation claims can take years to come to a conclusion, so interim payments can be vital in many cases. They can be made voluntarily by the insurer (if there is one), or by a court order. Any interim payments made are deducted from the final settlement or compensation award.
An interlocutory hearing is a court hearing that takes place during the course of proceedings and before the final trial hearing. One of the parties may make an interlocutory application to the court for an order for directions, or an order in relation to, eg, an injunction, extension of a time limit or for interim payments. The parties’ lawyers will typically attend the hearing and make representations.
Joinder is a technical term used where the courts add a party to court proceedings after proceedings have already commenced. Any number of claimants or defendants can be joined to the proceedings. Joinder is appropriate where, for example, more than one claimant has a similar claim against the defendant.
Joinder enables the court to dispose of the action/s efficiently. However, the court may find in favour or one claimant but not in favour of other claimants. The court can also separate a party from the proceedings.
Joint Settlement Meeting
A joint settlement meeting is a form of alternative dispute resolution (ADR) attended by the parties and their lawyers/representatives. At the meeting, the parties attempt to reach an agreement about any issues that remain outstanding at the time. The overall aim is to try to achieve a settlement.
Joint settlement meetings are particularly appropriate if the claim is for serious personal injuries.
The judge’s decision once they have heard the claimant’s case and the defence is known as the Judgment of the court. The Judgment will be handed down in written form as a court order and will include the judge’s findings in respect of each head of damage in the claim, and the amount of compensation to be paid. As a formal court order, the Judgment is binding on the defendant.
Judicial College Guidelines
The Judicial College Guidelines are published guidelines for the assessment of general damages (ie. pain and suffering and loss of amenity) in a claim for compensation. They are a guide to assessing the value of injuries, from the most minor injury through to catastrophic and lifechanging injuries.
The Guidelines, now in their 14th edition, are updated every one or two years. Solicitors representing claimants refer to the guidelines to estimate what the likely value of a claim may be. However, they are a guide only and do not have legal status.
Law Society Accredited Solicitor
Lawyers vary significantly in terms of qualifications and experience. However, a Law Society accredited solicitor is sufficiently experienced to have satisfied the Law Society that they have the expertise and experience to be formally recognised as a specialist in their field. They must show they have a high level of skill and knowledge in personal injury practice to be accredited.
A party to a personal injury claim may prefer to instruct a solicitor (or legal executive) who has personal injury or clinical negligence accreditation from the Law Society.
Legal Expenses Insurance (LEI)
Legal expenses insurance (LEI) is an important form of insurance cover protecting the insured if they need to bring a personal injury claim against someone else, covering the cost of solicitors’ fees in specific circumstances. It is increasingly available to consumers through their existing motor insurance, house and contents insurance, bank accounts, trade unions, and so on.
LEI typically covers one off accidents and does not usually cover workplace injuries and illnesses. It may also be limited to a maximum lever of cover. After the event insurance may therefore be necessary to ensure there is sufficient cover should a claim arise.
Liability means legal responsibility - being answerable in law. In a personal injury claim, you will be seeking to prove liability for negligence on the part of the defendant. If you can prove the defendant was negligent, resulting in your injuries, you have proved their liability and they must, therefore, make amends in the form of paying financial compensation.
In the case of a serious injury, the claimant’s likely life expectancy may need to be assessed to ensure a fair compensation figure. In fatal accident cases, the victim’s life expectancy will also need to be assessed for the same reason. Life expectancy is typically calculated with reference to the Ogden tables and other relevant factors, depending on the facts of the case.
Limitation Act 1980
The Limitation Act 1980 is an important Act of Parliament which sets out the time limits by which court proceedings must be started. If the relevant limitation period expires and proceedings have not yet been issued, it may be too late meaning that no compensation can be secured.
In personal injury claims, the limitation period is usually 3 years from the date of the accident or incident resulting in the injuries; or, in the case of anyone injured during childhood, the limitation period expires on their 21st birthday.
A litigant is a person who is party to the legal proceedings. In practice, the term ‘litigant’ is typically used when the individual is representing themselves in the proceedings - they do not have a lawyer representing them.
Litigation is the process of taking or defending formal legal action in the civil courts. Litigation becomes necessary if the dispute cannot be resolved through alternative dispute resolution methods, or by reaching a settlement to avoid litigation.
Where a claim is made by a minor, the claimant will have a litigation friend who brings the proceedings on their behalf. The claimant’s litigation friend is typically a parent, carer or guardian. If, however, the parent or guardian caused the accident, it will not be appropriate for them to be their litigation friend. In such cases, another family member, friend, or a professional may act as litigation friend.
Usually, the individual will apply to court to be appointed the litigation friend. The court will then assess their suitability. Once appointed, the litigation friend must act in the minor’s best interests and comply with various duties.
Loss of Amenity
Loss of amenity means the longer lasting effects of your injuries on your quality of life, including your family and private life, social life and ability to undertake hobbies, your sex life, ability to work or study. Loss of amenity is not easily quantifiable in terms of monetary value, and is therefore compensated within general damages in a compensation claim.
Damages for loss of amenity is important for victims of personal injury because it shows that the law recognises the lasting limitations injuries can have on their ability to enjoy their life to the full.
Loss of Congenial Employment
A claimant who has had to give up a career because of their injuries may secure compensation for loss of congenial employment. This means loss of job satisfaction, genuine enjoyment, fulfilment and sense of purpose derived from their career or profession.
Compensation for loss of congenial employment can be claimed alongside a claim for loss of future earnings as a result of giving up a career. It is also possible in some cases to claim for loss of better employment.
Loss of Earnings
Loss of earnings is one of the most common heads of claim in a personal injury claim. A claimant can claim for loss of earnings in respect of unpaid time off work during your recovery and rehabilitation. This could include loss of overtime and expected bonuses. You will have to provide proof of your earnings, overtime and bonuses previously received so that a fair and appropriate calculation can be made.
Future loss of earnings may also be claimed in more serious cases, in addition to past loss of earnings. This may reflect factors such as missed promotions and pay increases of which the claimant will be deprived as a direct result of the accident. Expert evidence will be necessary to substantiate the impact of the injuries on the claimant’s ability to work in future.
Most successful personal injury claims conclude with a "lump sum" compensation payout. This means the full compensation is paid all at once. The appropriate lump sum will either result from successful negotiations between the parties, or by order of the court. Judges often calculate lump sums by using multipliers and multiplicands.
In very serious cases, periodical payments may be appropriate, but there are tangible benefits of taking a lump sum. The claimant can do what they want with it, and the defendant no longer has further liability towards the claimant.
Mediation is a form of alternative dispute resolution. It is flexible, and involves an independent and impartial mediator who will meet with the parties at a joint meeting in a safe, neutral environment and hear each side of the case. Usually, the mediator will then meet each party separately to discuss potential solutions. Mediation frequently leads to a settlement being reached.
Mediation can be started at any time before or during legal proceedings. However, if successful, the settlement reached at mediation is legally binding once it is in writing and signed by the parties.
A claimant will almost always need to undergo a medical examination with an appropriate medical expert. This will be arranged by your lawyer, and the expert will have sight of your medical records and notes before the appointment.
The expert will discuss the accident and your injuries with you; ask how long you have taken to recover and how it has affected you, eg. if you have had time off work, or if it’s affected your day-to-day life. The expert will also examine you to enable him or her to write an expert medical report on which you can rely on in your claim.
An individual must have sufficient mental capacity in order to make decisions about their finances, property and welfare. Someone lacks capacity if they are unable to make a decision for themselves in relation to a particular matter “because of an impairment of, or a disturbance in the functioning of, the mind or brain” (the Mental Capacity Act 2005). If the individual does not understand the relevant information, cannot retain it, or use it to make a decision, or cannot communicate a decision – they lack capacity.
Unfortunately, in serious personal injury cases the victim may lose their mental capacity, either temporarily or permanently. In such cases, a Deputy can be appointed by the Court of Protection to make decisions for them.
Ministry of Justice
The Ministry of Justice (MoJ) is an important government department responsible for the courts and prisons. Its responsibilities include ensuring justice is properly and efficiently served throughout the justice system, including improving access to justice. The MoJ is responsible for the administration of the courts - including the Civil Court Rules which govern civil matters such as compensation claims.
A minor is a child or teen under the age of 18 years. If they are injured, a minor has special protection by reason of their age and vulnerability; for instance, their claim will be pursued by an adult on their behalf; and the limitation period in which the claim must begin does not start to run until they reach 18 years.
Mitigating circumstances are circumstances that existed at the relevant time, and may be taken into account when deciding issues such as the level of blame or severity of injuries. Whether there are mitigating circumstances is a matter of reasonableness: did the individual act reasonably in making a particular decision?
For example, a personal injury claimant suffers serious injuries and claims substantial compensation, including loss of future earnings. However, she unreasonably refuses to undergo surgery to her dominant hand which would have facilitated her return to work. This ‘mitigating circumstance’ would reduce the defendant’s liability for the full amount of compensation she claims.
Claimants are expected to act reasonably when claiming compensation. This includes the expectation that they will mitigate their losses. This means you should claim only what is reasonable. For example, if your claim includes the cost of replacing your 5-year-old Ford Fiesta, it will be unreasonable to claim for a 1-year old BMW; and if you can easily get public transport to attend hospital appointments it will not be reasonable to claim the cost of taxi fares.
If you can avoid paying out for certain items or treatment, you are not entitled to claim those costs. However, it is for the defendant to prove that you failed to mitigate your losses.
Motor Insurers' Bureau
The Motor Insurers' Bureau (MIB) is a government scheme enabling road traffic accident victims to claim compensation where a driver is untraceable or uninsured. The compensation a successful claimant receives is usually commensurate with the compensation they would have received if they were able to claim in the usual way (ie. against the driver’s insurer).
In addition to compensation for personal injury, the MIB also compensates for financial loss and property damage caused by the accident.
The multiplier is the figure by which the ‘multiplicand’ is multiplied, depending on the number of years between the date of settlement and the date the financial loss ends, such as the claimant’s pre-injury retirement age, or life expectancy.
The multiplier figure will, however, take certain factors into account including whether normal life events could interrupt the claimant’s career, and the potential impact of any continuing disability on their work. The appropriate multiplier in a given claim is determined by what are known as the ‘Ogden Tables’.
Negligence is the breach of a duty of care, either by failing to take action, or actively doing something that an ordinary, reasonable person would do in the same circumstances. It amounts to a failure that falls short of what a normal person would or would not do to protect individuals from foreseeable harm.
Negligence is a civil wrong for which the appropriate remedy for the victim of negligence in personal injury is financial damages.
No Costs Orders
A no costs order (or where the judge makes an order that is silent as to costs) means neither the claimant nor the defendant is entitled to have their legal costs paid by the other. If there is a no costs order made at the final hearing, neither party can recover the costs of the entire case. This means it is important to understand the potential costs implications for you at each stage of your case.
No Win No Fee
No win no fee refers to the way in which personal injury claims are commonly financed today in the absence of legal aid in the majority of cases. No win no fee describes the client/lawyer relationship under a Conditional Fee Agreement (CFA). These agreements mean that if you lose the case, you will not be liable for your legal fees – these will usually be covered by an insurance policy.
If you win your claim, the other side will be responsible for at least some of your legal fees and expenses; and you will be required under the CFA to pay a fixed percentage of the damages you recover to your solicitors.
Non-Party Costs Orders
A non-party (or third-party) costs order is an order of the court that costs must be paid by a third party who is not a party to the actual proceedings. The court can make a non-party costs order if it considers it just to do so, against a third party for whose financial benefit the whole or part of the claim was made.
A major factor is the nature and degree of the third party’s connection with the proceedings. There must be a sufficient connection for a non-party costs order to be made, and it must also be just to make such an order in the circumstances.
Notice of Funding
The court and the other parties have a right, in some cases, to know about funding arrangements for the claim. A notice of funding is a form used to give formal notice of legal funding that comes from a conditional fee agreement (CFA), or under an insurance policy or an undertaking.
The notice must be sent to the court as soon as possible - and at the latest, within 7 days of entering into a relevant funding arrangement, or in the letter before claim if the arrangement has already been entered into.
Novus Actus Interveniens
Intervening acts can interrupt a chain of causation, and this is what is meant by the Latin phrase, novus actus interveniens. A personal injury claim will not succeed if the claimant’s injuries were not directly caused by the defendant’s alleged negligence - but by a subsequent event caused by someone else independently of the defendant.
An individual with occupational cancer has been exposed to a carcinogen in the workplace and developed cancer as a result. Occupational cancer may be caused by working with hazards such radioactive material, mutagens, asbestos and other carcinogens.
The most commonly known occupational cancers are mesothelioma, asbestosis and lung cancers.
An occupational disease is a disease or condition caused by working in a particular occupation. For example, respiratory illness can be caused by working in the printing industry; cancer caused by exposure to chemicals in a factory; and vibration white finger from long-term use of pneumatic equipment in the construction industry. Occupational diseases are often known as ‘industrial diseases’.
If you are suffering from an occupational disease, you can usually make a claim for compensation. There is a formal ILO List of Occupational Diseases stating which diseases which are internationally recognised as being caused by work.
Office of the Public Guardian (OPG)
The Office of the Public Guardian (OPG) is the administrative arm of the Court of Protection. Part of its role is to safeguard the interests of those lacking mental capacity to make their own decisions, such as a protected person in a personal injury claim.
For instance, deputies - appointed by the Court of Protection to manage the finances and welfare of someone who lacks mental capacity - must submit accounts to the OPG; and the death of a protected party must be reported to the OPG.
The official receiver is a civil servant working for the Insolvency Service. If you are bankrupt at the time you suffered an injury, you may have to hand over some or all of your compensation to the official receiver. Any compensation for loss of earnings will usually have to be passed to the official receiver, but not the compensation for your pain and suffering. Any compensation given to the official receiver will be used to discharge your debts.
If you win your compensation claim after being discharged from bankruptcy, you may still have to hand over some of your compensation to the official receiver as it will be treated as an asset of the bankruptcy.
The Ogden tables are a set of 28 tables prepared by the Government Actuary's Department. They are used to calculate the claimant’s future financial losses in personal injury and fatal accident claims. For example, they include a table setting out the life expectancy and loss of life in men, and a separate table for the life expectancy and loss of life in women; and tables showing loss of earnings and loss of pension at different ages of retirement.
The Ogden tables are frequently relied on by the courts and the parties’ lawyers in assessing compensation. They are currently in their 7th edition and are based on statistics from the Office for National Statistics.
Out of Court Settlement
An out of court settlement is a settlement of a civil claim before the case reaches the final hearing. In reality, most personal injuries are settled out of court – partly because the Civil Procedure Rules (CPR) actively encourage the parties to negotiate a settlement to avoid litigation.
A settlement is typically negotiated by the parties’ solicitors. Negotiations can start at any time, even up to the time of the final hearing. Once a fair settlement has been reached, any formal proceedings will stop. However, in some cases, the court must formally approve the settlement, eg. in the case of a child claimant, and claimants lacking capacity.
Out-of-pocket expenses are sums of money that the claimant has personally spent on different costs as a direct result of the accident, for example, travel expenses to hospital, prescription charges, costs of replacing damaged clothing, carers’ costs, and items needed to help in recovery. A claimant will often claim out-of-pocket expenses as part of a compensation claim. Where possible, receipts will be needed to substantiate out-of-pocket expenses.
Part 36 Offer to Settle
The Civil Procedural Rules governing personal injury claims encourage early settlement of claims by way of allowing ‘Part 36’ offers to settle (Part 36 is the relevant Rule). A Part 36 offer is a genuine offer by either party to settle the claim (or part of it), but without prejudicing the litigation if the offer is refused. It can be made at any time, even before formal proceedings have begun, and must comply with the rules.
A particular advantage of Part 36 offers relates to costs, because if a genuine offer is refused there could be costs consequences if the case goes to trial. For instance, if you refuse a genuine offer to settle your claim (say, £50,000), and you eventually win your claim, but the judgment is less advantageous (£40,000) than the Part 36 offer, you will be liable for some of the defendant’s legal costs and interest.
The defendant may make a partial admission by admitting an element of fault, but not that they were completely at fault. The defendant may allege someone else was also at fault, usually that the claimant themselves were also to blame (see contributory negligence). If this is accepted by the claimant, or the judge decides the defendant was only partially to blame, an appropriate reduction of any compensation award will be made.
So, for instance, a cyclist claims compensation for personal injuries following an accident in which he was hit by a car being carelessly driven. The cyclist was not wearing a crash helmet, and the car driver (the defendant) makes a partial admission. At the final hearing, the judge awards £80,000 in damages, but reduces them by 25% to reflect the claimant’s own negligence in failing to wear a helmet.
A pension claim is a claim for loss of pension entitlement. Where the injuries are more serious, a claimant is likely to claim for their future losses including loss of pension. A pension claim will require the solicitor to contact the pension company to determine the pension arrangements and determine the potential loss, depending on whether it is a final salary pension or a defined contributions pension.
There may also be cases where a claimant can include a claim for loss of state pension.
Periodical payments are regular financial payments made to a successful claimant throughout their life in accordance with the terms of a court order. Periodical payments may be appropriate in the most serious of personal injury claims, including catastrophic injury claims, usually where damages exceed £1m.
A Periodical Payment Order will usually order an immediate lump sum compensation payment, followed by the periodical payments to be made by the defendant (or their insurer). The payments may be annual – or as frequently as every month. These periodical payments will ensure a regular income for the claimant during their lifetime.
Personal Independence Payment (PIP)
If you are suffering long term ill-health and/or disabilities as a result of personal injuriesa>, you may be entitled to Personal Independence Payments (PIP). PIP is available for individuals aged between 16 and 64.
Current weekly payments are between £22.65 and £145.35 (as at June 2018), depending on how the condition affects you. Payments are subject to regular reviews. On claiming PIP, you may be assessed face to face so that the appropriate entitlement can be determined.
Personal injury is any injury, harm or illness that you have suffered or are suffering. It is extremely wide ranging, and can include psychological and emotional harm, even if there has been no physical injury. For the purposes of personal injury claims, personal injury can even include death.
Examples of personal injuries include cuts and grazes and broken bones; head injuries; food poisoning; deafness and cancers caused by the work environment; and psychological problems.
Personal Injury Trusts
Receiving compensation or an insurance pay-out following personal injuries could mean you can no longer claim means tested state benefits, eg. Income Support or Jobseekers Allowance. However, if your compensation or insurance money is placed into a personal injury trust, you can ring fence your money, so that you can still claim benefits.
A personal injury trust must be set up within 52 weeks of receiving the money otherwise your money will not be protected. The trust will be administered by two or more trustees in accordance with a trust deed setting out when and how the money can be used. Your trustees will be responsible for dealing with the tax and other legal matters relating to the trust.
Personal Representative (PRs)
Personal representatives (PRs) are the individuals entitled to deal with the estate of the deceased, such as an individual who has died as a result of someone else’s negligence. The PRs have the legal right to claim compensation on behalf of the estate notwithstanding the victim’s death.
The PRs will be the executors appointed by the victim’s will, and they have the legal authority to act in the estate from the moment of death. If there is no will, the closest relative/s, such as a surviving spouse, partner or adult child, can apply for Letters of Administration which, once granted by the court, will give them the legal authority to make a compensation claim.
Post-Traumatic Stress Disorder (PTSD)
If you have suffered Post-Traumatic Stress Disorder (PTSD) following an accident, you may be able to claim additional compensation. PTSD can be triggered by traumatic events, such as an accident that has caused injuries. As a psychological injury, PTSD can take a long time to recover from - and in some cases can be even more debilitating than the physical injuries, adversely impacting the victim’s daily life.
To make a claim for PTSD, an expert psychological or psychiatric report will be needed to support your claim. It is also possible to bring a compensation claim for PTSD if you have witnessed an accident or incident - but suffered no physical injuries. However, robust evidence will be needed to make a successful claim.
A precedent in law refers to an example or authority in case law which can be followed. For example, a judge may set a precedent by making a particular decision in the final ruling in relation to a specific issue that has not come before the courts before.
The primary victim in a claim for personal injury compensation is a claimant who:
- suffers both physical and psychological injuries
- was within the zone of physical risk of injury when the defendant was negligent, suffers psychological injury, genuinely and reasonably believed they were at risk, and it was reasonably foreseeable to someone in the defendant’s position that someone in the claimant’s position would reasonably fear immediate personal injury so as to suffer shock-induced psychiatric injury (McFarlane v EE Caledonia Ltd  2 All ER 1)
Product liability relates to the legal responsibility of businesses whose defective products (or components of their products) cause personal injury and/or damage to property. If an individual is injured as a result of a defective product, including substandard food and drink, they can make a compensation claim under common law negligence, or under the Consumer Protection Act 1987.
Professional Indemnity Insurance
Professional indemnity (PI) insurance is taken out by businesses and professionals to protect against financial risks. The purpose of PI insurance is to cover the various risks and personal losses to which professionals may be exposed in their profession, such as negligence and mistakes.
Among other risks, PI Insurance can cover compensation for personal injuries caused to a third party if those injuries are caused by negligence.
Professional negligence arises where the advice given to a client falls short of the expected standard, causing serious consequences and loss. A personal injury claimant or defendant can bring a professional negligence claim against their lawyer if they have received substandard advice; for example, the limitation period or other important time limits have been missed, or the compensation claimed was far below what should have been claimed in the circumstances.
If you feel your claim has been rushed, or time limits have been missed, or you are otherwise dissatisfied with your personal injury lawyer, you should seek advice from an independent lawyer about possible professional negligence.
A prognosis is the time period during which an injured individual is expected to make a full recovery; or as full a recovery as can be expected and how they will continue to be affected long-term. A prognosis is usually given by a medical expert for the purposes of a compensation claim.
A formal prognosis is important because a settlement may not be appropriate without one. Also, a prognosis may be needed so that a fair figure for compensation can be reached.
A protected party is someone who is party to proceedings who lacks capacity to give instructions or conduct proceedings on their own. A minor will be a protected party. An individual who is seriously injured with a traumatic brain injury, someone under a mental disability or suffering from dementia will also be a protected party.
Under the court rules, a protected party must have a litigation friend to conduct proceedings for them. A litigation friend is typically the parent or other close relative or friend of the protected party.
A compensation claim can be made for psychological injuries caused by negligence. Psychological injuries are injuries to the mind, such as post traumatic stress disorder, recognised psychological and mental illnesses, and neurological problems. Normal human reactions such as grief, anxiety and distress, will not be classed as psychological injuries for the purposes of compensation.
Claims for psychological injury are harder to prove, and need to be backed up by expert psychological or psychiatric reports.
Public liability arises when a member of the public suffers personal injury or damage to property, because of the actions or omissions of someone else on land or property. For example, if you walk down a street and trip over a raised paving slab and break your ankle, the local authority could be held responsible under public liability law.
A public liability claim is a civil claim, and the appropriate remedy is financial damages. For a successful public liability claim, you would have to show that the respondent (the owner or occupier of the land or property) breached a duty of care towards you, and this resulted in the harm or loss suffered.
Quantum simply means ‘value’. Quantum of damages in a personal injury case is the amount of compensation won by the claimant for their pain and injuries, and loss of amenity. The quantum – valuation – of a personal injury claim is not usually easily assessed. Specialist barristers are often instructed to give their expert opinion on how a claimant’s injuries should be valued.
The law sometimes requires something to be ‘reasonably foreseeable’ to uphold a compensation claim. The test is whether a reasonable person of ordinary fortitude in the claimant’s position would be able to predict or expect the outcome of their actions or omissions, such as personal injury or death.
Rehabilitation refers to the time an injured person needs in which to recover from their injuries or - in serious cases - to recover as much as they are physically and mentally able to. It also includes the various types of care, support and medical help the claimant needs during that time of rehab.
The rehabilitation element is an important part of many personal injury claims. The claimant may need substantial compensation to support extensive rehabilitation required. Without adequate compensation, they may not be able to access effective rehabilitation.
Rehabilitation Code 2015
The Rehabilitation Code 2015 sets out the framework for personal injury claims under which both parties can work together. Its purpose is to help the claimant make the best and quickest possible medical, social, vocational and psychological recovery.
The Code ensures early assessment and identifications of the individual’s needs, so that they have timely access to the necessary support and rehabilitation.
Repetitive Strain Injury (RSI)
Repetitive strain injury (RSI) refers to pain in the soft tissues, such as muscles, ligaments and tendons, which has been caused by excessive repetitive movements. For example, RSI may be caused by overuse of a computer keyboard, by operating machinery and continuous heavy lifting.
RSI is a common work-related injury; however, employers have a duty of care to ensure their employees and workers are protected from RSI. An individual who has sustained RSI in the workplace may be able to make a claim for injury compensation.
Res Ipsa Loquitur
Res ipsa loquitur is a well-known Latin phrase meaning ‘the facts speak for themselves’. In some personal injury cases, the claimant can successfully rely on res ipsa loquitur to prove the defendant’s liability.
For example, a supermarket customer who is knocked out by a box of baked bean cans that fell from the top of a shelving unit in the aisle of the shop may rely on res ipsa loquitur. In the injury claim, the claimant may not be able to offer evidence as to who specifically was negligent - but claim that the facts speak for themselves: the facts prove negligence.
In an appeal, the respondent is the non-appealing party. The party appealing a court ruling is the known as the ‘appellant’. On hearing the appeal, the court will either uphold the original ruling or allow the applicant’s appeal against the respondent. The respondent could then appeal to a higher court.
RIDDOR is short for the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013. These Regulations impose obligations on the self-employed and on employers to report cases of specific diagnosed reportable diseases linked with occupational exposure to specified hazards, as well as serious accidents at work.
The reportable diseases are: carpal tunnel syndrome; cramp of the hand or forearm; occupational dermatitis; hand arm vibration syndrome; occupational asthma; and tendonitis or tenosynovitis.
A risk sssessment is an assessment of circumstances in the context of a specific risk or risks. For example, employers are required to carry out an appropriate risk assessment to identify potential causes of injury to workers; and owners/occupiers of public premises, such as supermarkets and restaurants, are required to carry out risk assessments and take appropriate steps to reduce any injury risks identified.
A failure to carry out a suitable risk assessment and/or act on the identified risks could mean the organisation is liable for compensation in the event of an injury.
Road Traffic Accident (RTA)
A road traffic accident (RTA) is an accident that takes place on a public road. Personal injuries are commonly caused by RTAs, whatever the circumstances that led to the incident. A claim for personal injury compensation following an RTA is usually made against the insurance company of the party at fault. Claims against uninsured or untraced drivers are usually paid out by the Motor Insurers' Bureau.
Road Traffic Accident Claims Protocol
The RTA Claims Protocol (full title: the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents) is a formal procedure established by the Ministry of Justice. It is a formal protocol to ensure that lower value RTA personal injury claims (between £1000 and £25,000) are dealt with quickly and efficiently by, for example, imposing strict time limits on the parties.
There are exclusions under the RTA Claims Protocol, including:
A secondary victim in a compensation claim for psychological injuries is a witness who is a passive and unwilling witness of injury caused to another individual, who suffers a psychological injury as a direct result of witnessing it. Typically, the secondary victim making a claim will have suffered, for example, extreme shock or PTSD. To succeed in a claim, secondary victim must prove that they:
- Have a relationship of love and affection with the primary victim
- They came across the immediate aftermath of the accident
- They have direct perception of the harm to the primary victim, and
- They are of reasonable fortitude
Following a recent case, a secondary victim who witnessed a traumatic case of medical negligence may be able to secure compensation - Re (A Minor by her Mother and Litigation Friend) & Others v Calderdale & Huddersfield NHS Foundation Trust  EWHC 824
Service of Proceedings
Service of proceedings takes place when the claim forms are formally served on the defendant. It is a key step in the litigation and must be done properly in accordance with the rules, otherwise it will probably be deemed ineffective. For example, the proceedings must be served within a given time frame; at an appropriate and correct address; and on the right defendant/s.
Service can take place by normal post, by fax, by email and by other digital forms. In some cases, the court may allow service of documents via Facebook or Twitter.
Slip and Trip
Slip and trip accidents happen where individuals slip or trip on walkways, pavements and other types of flooring as a result of obstructions, spillages and uneven levels. Land owners and occupiers are legally responsible for ensuring walkways and flooring are kept free of the risks of slip and trip accidents, eg. by ensuring spillages are quickly cleared up, and pavements and manholes are properly maintained.
If an individual sustains injuries following a slip and trip accident resulting from negligence, they can usually make a claim for compensation. Typical slip and trip injuries are sprains, cuts and bruising, and broken bones.
Soft Tissue Injury
A soft tissue injury is any injury or damage to the connective and supporting tissues in the body, including muscles, tendons and ligaments, membranes, nerves, blood vessels, fatty tissue, and so on. Soft tissue injuries are the most common type of injury, and include whiplash, sprains and tendonitis; bruising and damaged nerves; and ruptured blood vessels.
Serious soft tissue injuries, such as severe whiplash, can take a long time to heal depending on the cause, location and extent of the injury.
Special damages compensate you for actual financial (‘pecuniary’) losses. Those losses can be wide ranging depending on the circumstances. Common heads of special damages include loss of earnings, medical expenses, the cost of travel, car hire or repairs, carers’ costs, and so on. Special damages would need to be quantified by way of receipts, invoices, pay slips, and other relevant documentation.
Standard of Proof
To be successful, the claimant must satisfy the court to the civil standard of proof that the accident or incident occurred as a result of the defendant's negligence, thereby causing the injuries. The civil standard is on ‘the balance of probabilities’. This means the facts asserted must be ‘more likely than not’ in order for the claim to succeed. This is a lower standard than the criminal standard of proof (‘beyond reasonable doubt’).
A defendant in a personal injury claim who files a defence that is more than a mere denial of the claim, eg. the defendant holds the claimant party responsible, must also prove its argument to the civil standard. Here, the standard of proof is ‘reversed’.
Statement of Case
A statement of case is a catch all term for the parties’ various statements of fact setting out their case. Statements of case (formerly known as ‘pleadings’) include the claimant’s particulars of claim or a claim form, the defence, counterclaim, and reply to a defence. The parties rely on their statement of case in the litigation.
Statement of Truth
A statement of truth must accompany a costs budget as part of the parties’ costs budgeting responsibilities. The statement of truth must be signed by a senior lawyer on the case, and its purpose is to verify that the facts set out within the costs budget are true.
Statutory Sick Pay
Statutory Sick Pay (SSP) are payments to a qualifying individual who is too ill to work for their employer. SSP is a statutory amount paid by the employer for up to 28 weeks at the current rate of £92.05 per week (as at 22 October 2018). To qualify, you must have been off sick for at least 4 days in a row.
Your employer can pay you more than the statutory amount under a sick pay scheme or occupational scheme if your employment terms provide for this. However, the statutory amount is a minimum.
Stay of Proceedings
A stay of proceedings refers to a halt in the litigation for a certain period of time (eg. a month) for a specific purpose, such as to allow time for the parties to negotiate a settlement or to enable a party to comply with a protocol.
A stay in proceedings stops the court timetable from running until proceedings recommence, if at all. The party wanting a stay to be lifted must apply to court.
Strict liability is a legal principle by which the defendant is liable to the victim for compensation, whether or not the defendant was negligent. In these cases, negligence does not have to be proved for the claim to succeed.
Examples of strict liability in personal injury claims include: keepers of dangerous animals are strictly liable for injuries caused by a dangerous animal; and manufacturers of defective products where the safety of the product was not what people were generally entitled to expect.
The court has the power to ‘strike out’ a party’s claim or defence (Civil Procedure Rules 3.4) either of its own volition, or on one party’s application. The court can only strike out a claim or defence where it can be shown that the allegations in the claim/defence have no prospect of success, or in the case of excessive delay.
The court can strike out the whole of a claim/defence, or part only. However, striking out is a last resort, and the court does not readily exercise its power to strike out without an appropriate alternative.
Under a structured settlement, compensation is paid out over time and not as one lump sum. Structured settlements are being increasingly used, by way of periodical payments (typically on an annual basis). They are sometimes used in serious, high value personal injury claims, particularly in medical negligence cases where life expectancy could be lengthy. Usually, annual periodical payments are met by a lifetime annuity.
If you win your claim for compensation, you may have to pay a success fee (sometimes called an 'uplift'). This is an amount payable to your solicitors under a Conditional Fee Agreement (CFA). The success fee will be payable in addition to what would usually be payable for your solicitor’s legal fees and expenses if there was no CFA.
Success fees are deducted from the damages you receive. The amount you will pay will be set in the agreement you entered into at the start of the claim, but it must not exceed 25% of the compensation awarded.
Summary judgment is a judgment given by the court in favour of one party without a full trial. Summary judgment is typically given in circumstances where the other party has failed to file a defence, or where the claim has no reasonable prospect of success.
A claimant can apply to court for summary judgment, or the court can issue summary judgment of its own volition. Obtaining summary judgment will save a lot of money in costs because no trial will take place. However, an application for summary judgment needs to be considered carefully because if your application fails, you will be responsible for the other side’s costs.
Third Party Capture
Third party ‘capture’ refers to a growing trend for insurers to contact personal injury victims following road traffic accidents to offer a fast settlement of their claim without lawyers being involved. Whilst legal, this can be very risky for the victims because medical experts are unlikely to be involved, and a speedy settlement would be counter productive if the victim’s injuries or prognosis prove more serious than first thought.
Road traffic accident victims do not have to entertain any offer to settle their claim quickly through third party capture.
Third Party Insurance
Third party insurance is a type of insurance which covers passengers and other road users who are injured or suffer loss as a result of an accident caused by the driver of a vehicle. It also covers injury to animals. Third party insurance is the minimum compulsory insurance cover in the UK if you drive a vehicle, but it will not generally cover your own injuries or vehicle damage.
A personal injury claim is time barred (or ‘statute barred’) if proceedings are commenced after the expiry of the limitation period. The limitation period for adult personal injury claims is three years under the Limitation Act 1980. If a claim is time barred, it may not be able to proceed and the claimant will not be entitled to compensation.
However, even if a claim is time barred, the court can still allow the claim to continue in certain circumstances, eg. where liability is not contested and there is a very high chance of success.
A Tomlin order is a form of consent order, though not often used in practice. It may be appropriate where there is a settlement but liability has not been admitted. The settlement terms are set out in the Tomlin order - usually in a separate schedule.
A Tomlin order stays proceedings on the basis that terms have been agreed between the parties; and the parties have the right to apply to court to enforce the settlement terms if necessary - without having to commence new proceedings.
A tort is a ‘civil’ wrong as opposed to a crime. A tort can give rise to a cause of action, such as negligence or breach of contract. A personal injury claim, for example, arises out of the tort of medical negligence by a doctor, breach of health and safety laws, factory accidents, slip and trip incidents in public, and so on.
The main remedies for a claimant in tort are compensation and, sometimes, an injunction. The remedy for a personal injury claimant will be financial compensation (damages).
Trade Union Legal Schemes
Members of UK trade unions may be entitled to free legal advice and representation with an expert injury solicitor through their trade union legal scheme. These schemes may also guarantee you the entire amount of any compensation secured, rather than a percentage going back to your lawyer. Depending on the scheme, it may also provide insurance to cover the financial risk if your claim is unsuccessful.
Traumatic Brain Injury
A traumatic brain injury (TBI) is a brain injury caused directly by trauma to the head; for example, assault, car accidents and factory accidents where the victim suffers a head injury. A TBI can cause serious, life-changing, long-term physical and mental effects.
Victims of TBI caused by negligence may be entitled to significant compensation, and enhanced levels of welfare benefits.
An ‘unless’ order is a severe order of the court under its general management powers to ensure compliance. An ‘unless’ order requires one of the parties in the proceedings to take a specific step by a specific date. ‘Unless’ they comply, they will face serious sanctions, potentially having their claim or defence struck out.
Vibration White Finger (VWF)
Vibration white finger (VWF) is a type of soft tissue injury caused by constant vibrations, typically in industrial workplaces. VWF, also known as ‘hand-arm vibration syndrome’, is a recognised condition that typically results from regular and extensive use of vibrating power tools such as hammer drills, grinders, sanders and chainsaws.
Symptoms of VWF include tingling, pain and numbness of the fingers, gradual whitening of the fingers from the tips down, and impaired use of the hand. Damage is usually permanent.
Vicarious liability arises when an employer is responsible in law for the actions or omissions of their employee/s. If, for example, a forklift driver is negligent in operating the forklift at work, and another employee is injured as a result, the employer will be held liable – and not the driver themselves.
For an employer to be vicariously liable, the individual responsible must be an employee and not an independent contractor, freelancer, or self-employed consultant. However, the employer will not be held liable if the employee was ‘on a frolic of his own’, eg. if, in the above example, the employee had driven the forklift vehicle out of the employer’s premises without permission, and an incident then occurred resulting in injury to someone else. Here, the forklift driver will be held personally responsible.
Volenti Non Fit Injuria
Volenti non fit injuria is a Latin term that means if someone consents, or willingly places themselves in the path of foreseeable risk, and they are injured, they cannot then claim compensation.
Volenti non fit injuria is a complete defence to an injury claim, but the defendant must prove that the claimant entered freely and voluntarily into an agreement, fully knowing the nature and extent of the risks of doing so.
Wasted Costs Orders
A wasted costs order is, effectively, a stiff financial penalty imposed by the court. The court may impose a wasted costs order on a party who does not comply with the directions of the court without good reason, or there is other evidence of professional misconduct.
A wasted costs order is usually made against the party’s lawyer - not the client itself. This is because the lawyer would invariably be responsible for the breach of directions or proper procedure which led to the order.
Whiplash is the most common type of soft tissue injury. It is the colloquial, non-medical, term to describe an injury to the neck caused by a sudden movement or jolt of the head. Whiplash is a typical injury caused in car accidents when the head is thrown forward and/or back in quick succession. It is also a relatively common sports injury, and can result from being hit on the head.
Whiplash symptoms range from minor neck pain or headaches, to severe pain. Symptoms can take hours or even a day or two to become apparent, and it can take weeks or more to recover fully.
Correspondence and other communications between lawyers are often stated to be ‘without prejudice’. This essentially means that an offer, negotiations or discussions made without prejudice are undertaken without any admission of liability.
It also means that any offers and discussions in without prejudice communications are ‘privileged’, and cannot be brought up in court.
A witness statement is a formal document setting out the evidence of a witness in a claim. It is a statement of fact based on the witness’s recollections of the incident leading to the claim.
A witness could be cross examined in court by the other side. Witness statements must be true, faithful and accurate. The Civil Procedure Rules require that witness statements include a ‘statement of truth’, otherwise it will not be admissible in court as evidence.
Work Capability Assessment
You will probably be referred for a work capability assessment if you apply for Employment Support Allowance (ESA) because of your injury, and the Department for Work and Pensions decides you may be eligible.
The assessment will determine the extent of your illness or disability and how it affects your ability to work. This assessment is a medical test to assess your ability to work. It includes a one-to-one interview and a questionnaire using a point scoring system.
Wrongful Death Claim
A wrongful death claim can be brought by a relative, usually a dependent or other closest relative, of someone who has died as a direct result of negligence. A claimant can make a wrongful death claim under the Fatal Accidents Act 1976, which sets out three categories of compensation available: dependency compensation, bereavement damages, and funeral expenses.