If you have been injured in a road traffic accident while travelling in a vehicle as a passenger or a driver, or as a pedestrian or cyclist, you might be entitled to claim compensation for those injuries.
How do I know whether I can make a claim?
In order to bring a claim against the other driver, 'the Defendant', you must show that the accident was their fault. Without fault on the Defendant's part there is no claim. The accident could also be partly your fault and you may still have a claim. Your solicitor will be able to advise you whether you have a claim on the individual circumstances of your case. If you are a passenger in a car, then it is likely that you will have a claim, as the accident will probably have been caused either by the driver of the car in which you are travelling, or the driver of another car.
What do I need to do to start a claim?
Your insurers may wish to appoint Solicitors on your behalf. However you should note that these Solicitors may not be local and so you may never actually get to meet the person who represents you. You should also note that you do not have to use your insurer’s Solicitors and you are free to choose who you instruct. You should also note that the insurers for the Defendant may contact you direct and make you an offer of compensation. Accident victims who turn down an insurer’s initial offer and take legal advice from a Solicitor get on average 2 to 3 times more compensation. This information is based upon statistics from the Financial Services Authority on offers made by Defendant’s insurers.
In all cases you should gather together all the details of the accident and your injuries so that you can tell your solicitor all the relevant facts. These would include:
- The name and details of the Defendant, their vehicle description, registration number and insurance company if you have it
- The details of the accident and location
- Details of your injuries and treatment
- Details of any witnesses
- If the police attended the accident, the details of the police station and police officer
- If you have been unable to work as a result of the accident, details of your typical earnings before the accident and your earnings since the accident
- Details of any out of pocket expenses
- Details of any household or other policies of insurance which might cover your legal expenses in bringing the claim
What will happen next?
If your solicitor thinks you have a good chance of succeeding in bringing a claim, they will either send a formal letter of claim or a claim form (depending on the value of the claim) to the Defendant or their insurers, setting out the circumstances of your claim and details of your injuries. There is a legal protocol which must be followed to give the other person time to investigate and respond to the claim. In most road traffic cases the Defendant will already have insurance and their insurance company will act on their behalf.
If the Defendant is not insured or for some reason untraceable e.g. because they didn't stop at the scene of the accident, you will in most cases still be able to make a claim through the Motor Insurers' Bureau. Your solicitor will advise you if your case falls into this category.
If liability is admitted then you must go on to prove your injuries, usually by means of a medical report, and also any out of pocket expenses caused by the accident.
Your solicitor will usually send you to an independent medical expert who will examine you and read your medical notes, and prepare a report. The expert will confirm the injuries which have been sustained in the accident and provide an opinion on any recommended future treatment and your expected recovery.
You can prove your out of pocket expenses, called 'Special Damages', by providing documentary evidence. The usual types of special damages include:
- Loss of earnings
- Travel expenses
- Any personal items, such as clothing, which were damaged in the accident
- Medical treatment expenses
- The cost of repairs to your car, or if 'written off' the value of the car at the date of the accident
- In the case where your car has been 'written off' in a road traffic accident, hire charges and storage fees
In most cases proving these losses is straightforward, by showing receipts or payslips to the Defendant. If the loss you are claiming for is an item such as clothing or equipment damaged in the accident, the Defendant does not have to pay the replacement value, only the value of the item at the time of the accident, by reference to its age and condition.
You can also claim for any future special damages which might arise, for example, if your loss of earnings is continuing or the cost of future treatment.
If liability is disputed by the Defendant, your solicitor will advise you on what steps will need to be taken to prove that the Defendant is at fault. This might include obtaining any reports that the police prepared, interviewing witnesses and obtaining the Defendant's own witness evidence and obtaining liability expert reports.
If the Defendant was prosecuted by the police for a driving related offence this will be relevant to the issue of liability in your claim for damages. In most cases it will be difficult for a Defendant to argue they are not at fault and liable for your damages, if they have already been convicted of, or pleaded guilty to, a careless or reckless driving offence. Your solicitor will normally ensure that they are kept fully informed of any related prosecution.
However, even if the Defendant was not prosecuted you may still be able to bring a claim.
How much is my claim worth?
Your solicitor will only be able to value your claim once all the medical evidence is complete and once you have provided all the documentary evidence for your special damages.
The value of the claim for your injuries is calculated by referring to previous similar cases which have been decided by the Court, as well as the Judicial College Guidelines, which is a reference tool providing a rough tariff of awards for particular types of injuries.
Your past expenses and potential future expenses and losses will also be calculated by your solicitor and usually presented to the Defendant in a schedule. In complex cases these calculations might be referred to an accountant or a barrister.
Will I have to go to Court?
Most cases settle before reaching Court. However where liability is disputed, or the Defendant disputes that the injuries were caused by the accident, or even that your losses cannot be justified, then the case will have to be decided by the Court.
How much time do I have to bring a claim?
In most cases, you have 3 years from the date of the accident to bring a claim for personal injuries. If the accident occurred abroad, or the accident happened to a child, then the time limits are different. It is always best to seek advice as soon as possible after the accident.
Paying for your Claim
When you instruct a solicitor to act for you, it is usual practice for you to come to some arrangement about their fees to confirm how they will be paid. Claims are usually funded by way of a ‘no win, no fee’ agreement with legal expenses insurance. Your solicitor will advise you on your options.
How we can help
If you need advice about an accident and whether to bring a claim, then please contact a member of our personal injury team.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.