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A Guide to Claiming Compensation

Welcome to SIA’s Guide to Claiming Compensation.

Sustaining a spinal cord injury is usually catastrophic for the individual involved and anyone connected with them. Motor and sensory paralysis have massive physiological implications that people have to learn to manage. Moreover the management of spinal cord injury is undertaken in a world that’s by and large ignorant of the needs of wheelchair users and others with paralysis.

Money helps. One way to secure funds to manage your injury and help put your life back together is by getting compensation if another party was at fault. SIA welcomes and embraces those legal firms that support people with SCI. The aim of the Directory of Personal Injury Solicitors is to help you find the best support for your case. All of the firms identified in this Directory have met a strict set of criteria laid down by SIA with your needs in mind - so be confident in using it.

We hope that this Directory will assist you in claiming compensation following injury and guide you to the best legal services available. This Guide also aims to answer some of the common questions that arise from people, like yourself, who are pursuing a claim for compensation.

As you will discover, the majority of the Guide concentrates on listing the firms of Solicitors which are on SIA’s approved Solicitors Scheme. All of the firms have complied with the criteria of the scheme although SIA cannot be held responsible for any advice given by any of those listed. If you decide to make contact with one of these solicitors, please tell them, when you make the appointment, that you are doing so under SIA’s Solicitors’ Scheme. All of the firms have certain things in common:

Each one has demonstrated that they specialise in personal injury claims and/or clinical negligence claims involving spinal cord injury.
All will provide a free initial interview whether at their office, your home or in hospital. Where a firm does not have accessible premises they will see you in your home or another suitable place. This initial interview should allow enough time to explore whether or not you have a case for compensation.

Financial Advice

If you are successful in claiming compensation you will need to ensure that your money works well for you to provide for your life-long needs in the most tax-efficient way.

SIA Financial Services introduces you to independent financial advisers, AWD Chase de Vere Wealth Management Ltd. They offer expert advice throughout the claims process. From the onset of your early days of suffering a spinal cord injury they can and adviseing you on making the financial adjustments necessititated by a sudden change in lifestyle. They , tocan assisting with the settlement planning, to help ensure that the award, its payment structure and investment strategy reflect your future financial requirements. In addition they will undertake an , to the ongoing review of your plans to help keep your money working as hard for you as it possibly can. Advice is also available on a wide range of other financial matters and products.

Telephone 0844 800 9562 or visit www.siafs.com

Case Management

The need for Case Management stems from the complex and potentially confusing overlap between the physical, social and psychological consequences of a serious injury. An effective Case Manager can focus the available resources on you as an individual, avoiding overlap of services, or the provision of unwanted help and equipment. Perhaps more common are the gaps that all too often occur when one organisation assumes, incorrectly, that another is providing a service, therapy or treatment. This problem is encountered time and time again, especially between the respective duties of the NHS and local authority to provide care.

A Case Manager acts as a hub, liaising with the numerous organisations concerned with your medical treatment, therapies, care, specialist equipment companies, and welfare benefits. Whilst some people prefer to make all of these arrangements themselves, many find it a struggle to understand how all of these services should fit together and the myriad of regulations behind them. This maze of services can be confusing to even the most organised of people. For those with an additional need for support, because of the severity of their injury, age, lack of a close family network, or other background factors, an experienced person to turn to for help can make a lot of difference.

You may have come across a Case Manager in your Spinal Injuries Centre or hospital, where they assist with discharge planning and reintegration issues. Unfortunately, they are unable to offer an intensive service post-discharge as their attention inevitably has to move on to their new patients.

An increasing number of people are seeking the help of a Case Manager to assist them and their family with the many arrangements which they need to make consequent to spinal cord injury, to ensure that they get the best available rehabilitation, care services and support. However, in the past it has been difficult to identify individuals with suitable experience of spinal cord injury. The Case Management Society of the UK (CMSUK), now embraces people with the experience spinal cord injured people will need and many of the members of the British Association of Brain Injury Case Managers (BABICM) also provide spinal cord injury case management service. We are pleased to be able to offer you their contact details in the Case Managers section. All the Case Managers listed have experience of dealing with spinal cord injury cases. They have also been recommended to us by the Solicitors firms appearing in this Directory.

Case Managers are usually qualified as occupational therapists, psychologists, hospital discharge co-ordinators or nurses. We have checked that each of the people listed in this Directory has had at least three years clinical experience, not only in dealing with in-patients but also of co-operating with hospital staff, community services and voluntary resources.

Case Managers usually charge for their time by the hour. Before you employ anyone, check their rate and ask about travelling time and expenses and whether they charge VAT as all these may be hidden extras.

Please let us know if you successfully use a Case Manager listed in this Directory or if you know of someone else who should be included.

Claiming Compensation

Some common questions:

Q. Is it really worth my while seeing a Solicitor at all as I don’t want to waste time?

A. The simple answer is YES!

There are hundreds of accident victims who fail to claim compensation every year simply because they do not know their legal rights. A Solicitor will not think that you are wasting his or her time. Even if you think that the accident was your own fault you should seek legal advice. You may have a claim for compensation but not realise it.

Remember: Each solicitor in this Directory will provide a free initial interview - you have a lot to gain and very little to lose by approaching someone.

Q. There are so many Solicitors - which one should I choose?

A. This is probably the most important decision you have to make. We recommend that you use an expert in personal injury claims for spinal cord injury. All the solicitors listed in this directory have demonstrated to SIA that they have experience of such claims. We do not recommend that you approach the solicitor you instructed when you last moved house, for example.

Distance need not be the deciding factor either, as most Solicitors will arrange to visit you at home if this is more convenient.

When you have selected a firm of Solicitors, phone up and ask to speak to either the contact name given here in the Directory, or the Head of the Personal Injury Department.

Remember: Don’t be afraid to ask questions. Here are some you could ask.

How many spinal cord injury cases have you handled?
What is the biggest claim you have ever settled?
How many cases of this type have you taken to Court in the last 5 years?
What were the results?
Are you a member of the Law Society’s Personal Injury Panel?
Have you completed a specialist SCI training course for Personal Injury Solicitors?

If you get unsatisfactory answers or you are unsure about the solicitor you have spoken to, call another one - don’t be afraid to shop around. You are the customer and there is no obligation to use the solicitor providing the first free interview. In fact, even if you are satisfied, it might pay to try out more than one firm before you decide.

Remember: a claim is likely to take a few years to complete. You will be forming a relationship with your solicitor over a period of time, so it’s important you have someone you can trust.

Q. I am worried because my Solicitor has not spoken to me for some time. What should I do?

A. Do not be overly concerned if your Solicitor does not contact you every few weeks. It can take several months to prepare a medical report, for example, and it may be that this delay will hamper any further developments at present.

Many firms in this Directory have a "client care" policy - before giving instructions to a solicitor ask them about it and what standards they have in responding to their clients. You can also ask them to copy you all incoming and outgoing mail relating to the case if you feel you want to keep track of events.

If you are at all concerned then approach your Solicitor either by telephone or letter. If you fail to get a satisfactory response then write to the Senior Partner at the firm and express your concerns.

Remember: although your Solicitor is a busy person and has a lot of other clients, this is no excuse for ignoring you or not answering your questions. If you are not happy with your solicitor’s handling of your case you are free to change to another one.

Q. Someone told me that if my accident happened more than 3 years ago I cannot claim - is this true?

A. It is extremely important to seek expert legal advice as soon as is practicably possible following an accident.

As a basic rule, there is a three-year time limit, from the date of the accident, in which to bring a legal claim. So, for example, if your accident happened on 1 June 2004, your limitation date for making a claim is the 1 June 2007. But it isn’t sufficient to instruct a Solicitor just prior to this limitation date as the requirement is that proceedings must be issued at Court by this date. You therefore need to give the Solicitor as much time as possible prior to this third anniversary as there is considerable work involved before proceedings can be issued.

However, there are exceptions to this rule which will allow longer than three years. If, for example, a claim is being brought on behalf of a child or someone lacking mental capacity. The three-year time limit will also not begin to run until such time as you know that your injuries have been caused by the actions of someone else. If your accident happened abroad, or at sea or on an aeroplane then the limitation period may be shorter.

Remember: it is essential that you contact a solicitor at the earliest opportunity and even if you feel the limitation date may have passed.

Q. I was told that I would have to prove that someone had been negligent - what does this mean?

A. In order to succeed in a claim for damages (compensation) it is necessary to prove negligence. You need to show that the Defendant (the party responsible for your accident) has acted wrongfully and that this has caused your injury.

In an action for medical negligence (or clinical negligence) you must show that you have suffered an injury and that the injury has been caused by either an act or omission of a doctor or member of the nursing staff. In order to assess this, the Court will decide whether an appropriate level of skill was used which would reasonably be expected of a competent doctor or member of the nursing staff of equivalent seniority.

Q. What does the term contributory negligence mean?

A. In some instances the Court may decide that you have contributed to the injury by failing to take reasonable care. In this instance the Court will place a percentage figure on this amount of contributory negligence of anything between 10% - 100% and the overall settlement sum will be reduced accordingly. For example, if the Court were to award £1,000, but considered you to be 10% responsible for your injuries, you would only receive £900.

Q. I am worried that my claim will take forever.

A. It is not unusual for complex claims to take anywhere upwards of 3 years to complete, particularly where a severe spinal cord injury has occurred.

Where a Defendant admits liability (responsibility), it is usually possible to obtain what are referred to as interim payments in order to assist you to purchase equipment and other essentials whilst the claim is progressing. These sums would then be deducted from the final settlement sum.

Remember: it is always important to ensure that a full picture of your overall medical condition is known. In this way all eventualities can be built in the compensation package

Q. What will happen once I have instructed a Solicitor?

A. Naturally this will vary from claim to claim, although most Solicitors will follow a similar method.

Firstly, your claim will be fully investigated. Your Solicitor will collect accident reports, witness statements and other relevant documents. They will then be able to advise you more fully on the likely success of your claim.
A claim can then be made against the relevant body or person and their insurers will be contacted.
Whilst some insurers will be quick to admit liability, others will not. Neither is it unusual for an insurer to initially turn down your claim and then change their mind as the claim develops.
The vast majority of claims are settled before going to Court. However, some may ultimately proceed to trial. This should not put you off as your Solicitor will keep you fully informed and will prepare you for the trial in due course.

Remember: that it is the insurers themselves and not the person or body responsible for your accident who will pay the compensation. Do not be concerned if you have been involved in a road accident where the other person does not appear to be insured or if you were involved in a hit and run accident. In these circumstances your claim will be dealt with by the Motor Insurers’ Bureau. This is an organisation that nominates insurers to handle cases in these circumstances.

Q. I am worried that I will have to pay for my claim and I cannot afford that. Is it really worth my while to even approach a Solicitor?

A. You only need to worry if your claim fails. If it succeeds most of the costs will be recovered from the party at fault.

Remember: you should never be put off investigating a claim on the grounds of cost.

There are a number of ways of funding a claim and your Solicitor should discuss a number of different options with you. You should never assume that a claim has to be funded privately.

Public Funding (the Legal Aid Scheme)

In April 2000 public funding was withdrawn for the majority of personal injury cases. It has been retained for clinical negligence claims although only solicitors who are approved by the Legal Services Commission (the new name for the Legal Aid Board) and who have a Legal Services Franchise are allowed to offer a public funding service.

This means that if you think you have a claim involving clinical negligence, and you want to be advised with Public Funding, you need to ensure that the solicitor you instruct to investigate your case is able to offer this service. Look for this symbol in the Directory.

Remember: Public Funding is a loan. If you are successful in your claim for compensation, the Legal Services Commission may require you to make a contribution from your damages towards your legal costs if an insufficient amount is recovered from the Defendant. This is known as the Statutory Charge. If your case is not successful you can be ordered by the Court to contribute towards the other side’s costs. If you fail to pay any contributions towards the certificate this could lead to the certificate being discharged.

Conditional Fees – or No win, no fee agreements

Conditional Fee or 'no win, no fee' agreements have been available in personal injury cases for approximately seven years now.

- the conditional fee agreement

When a solicitor and client enter into a conditional fee agreement the solicitor agrees to make no charge for his or her services if you lose your case. If you win your case, you will receive compensation from the Defendant together with money to pay your Solicitor’s basic costs and expenses. On entering a conditional fee agreement you agree to pay to the Solicitor a "success fee" which is an agreed percentage of the overall solicitors costs. This agreed percentage is made up of three elements;

a percentage for the risk of the solicitor not getting paid at all (if the case were lost)
a percentage for the length of time it will take for the case to be settled and
a percentage for the borrowing element if the solicitor funds the expenses of running your case as it proceed.

The amount of this success fee depends upon how complicated the case is, the risk that the solicitor takes in running the case and how long before it is likely to come to trial.

Although it used to be the case that the client had to pay all of the success fee, in April 2000 the law was changed to make the Defendant solely responsible for the risk element of the success fee. This was good news for claimants as the risk element is normally the highest element of the success fee.

- after the event insurance

When the solicitor offers you a conditional fee agreement, he or she should generally offer to purchase insurance for you, to protect you from losing the claim and being responsible for having to pay the Defendants costs.

This Insurance is called 'after the event insurance' and there are many Insurers who offer this service.

It is very important that you check with the solicitor about the terms and conditions of the insurance product that he or she is offering as the benefits of the insurance differ widely.

Again, since April 2000 the law has changed to require the Defendant to reimburse the reasonable expense of after the event insurance at the end of the day if you win your claim.

'After the event' insurance premiums can be expensive – especially for clinical negligence claims. The cost of the premium is dependent upon the type of insurance purchased; the costs of a premium for a higher value road traffic accident claim are in the region of £5,000 for £100,000 worth of cover. Clinical negligence premiums are much more expensive and a similar level of cover can cost in the region of £20,000. It is always worth discussing the level of cover you need with your solicitor and whether a "better deal" can be obtained from an alternative insurer.

Remember: shop around and compare one or two different firms and the after the event insurance that they will offer you. Most solicitors offer after the event insurance with what are called deferred premiums which means that you will not have to pay a large sum of money in the first instance to buy the insurance. Further, with many deferred premium policies the Insurer will underwrite the cost of the premium if the claim is lost, or abandoned on the solicitors advice, without charge to the client. This is a very valuable safeguard. Others (and this is especially important in clinical negligence claims) can organise disbursement funding loans to pay the insurance premium.

Trades Union or Professional body

If you are a member of a Trades Union, or other Professional body, they may be willing to pay the legal costs although a Union will usually want to nominate one of its own Solicitors to act for you.

Legal Expenses Insurance

It is surprising how many people have legal expenses insurance with their household contents policy or vehicle insurance policy. Check whether you have this cover. Commonly legal expense insurance will provide between £25,000 – £50,000 worth of legal cover.

Most legal insurers have specific firms of solicitors they instruct, many of which do not have specific experience of handling spinal injury claims. However, under EU law a client is supposed to have total freedom in choosing a solicitor from the point at which Court proceeding are issued. However, more importantly there is a ruling of the Financial Services Ombudsman which states that in a complex claim a Legal Expense Insurer should allow its customers a choice of solicitors. This means that your Legal Expenses Insurance should pay for whichever firm you choose.

Private Fees

If you have a good claim you should be able to find a solicitor who will advise you under a 'no win, no fee' agreement. However, some solicitors may want to charge you for the initial investigative work before offering to enter into a conditional fee agreement with you, and this is especially so if you have a claim involving clinical negligence.

However, if your claim involves an accident (rather then a clinical negligence claim) then you should generally be able to find a solicitor from the SIA referral list who will advise you without charging you private fees and who will offer you a "no win no fee" agreement at the beginning of taking instructions.

Moreover, if you have a straightforward personal injury claim you should generally be able to find a solicitor who is able to fund the greater part of the expenses of running the case (for example medical expense fees) as it proceeds – either by way of the firm funding the expenses themselves or a disbursement funding package with a bank.

Remember: if you win your case you receive the bulk of your legal costs in addition to compensation.

If you cannot find a solicitor who will offer you a conditional fee agreement, or if you wish to pay the solicitor privately, your solicitor must tell you at the outset what the basis of charging you will be. Most, if not all, Solicitors charges are based upon the number of hours spent by the Solicitor on the case. Each Solicitor in turn has an hourly rate applicable to his work based on his expertise and experience. It would be usual to be billed periodically by what is referred to as an interim bill although by prior agreement your solicitor may agree to defer payment until settlement for a small interest charge. You must agree this beforehand. You may also be asked for money on account for costs which are about to be incurred. Solicitors used to charge an 'uplift’ on their hourly fee of at least 50% and it can go as high as 100%. However, it is now good practice for the solicitor to offer an inclusive hourly rate at the outset of the claim.

Remember: ask the solicitor to make a detailed budget of likely costs at each stage of the process, to help you work out how far you can afford to go.

Payment of Costs

If you are successful in your claim an Order will be made that your reasonable costs be paid by the Defendant. If these cannot be agreed, the court will assess a reasonable amount. Therefore, there may be a small proportion that will be recoverable from your damages.

Q. What are damages?

A. The aim of compensation is to place you, so far as is possible, in the position you would have been had the accident not occurred. The amount of compensation received will vary from individual to individual and will depend on your particular circumstances, including your age, your job, your life expectancy and the nature of your injury. Although damages vary, they are claimed under the following headings:

Special Damages – past and future financial losses

This is legal terminology which is simply used to describe your actual financial losses from the date of the accident to the date of the trial and your future financial losses from the trial until your notional date of retirement.

Your past financial losses will generally include such things as: loss of earnings, alterations to your house already completed and paid for, the cost of personal assistance already provided and paid for, the cost of aids and equipment already purchased, reimbursement of extra travelling expenses to and from medical appointments, reimbursement of travelling expenses incurred by relatives and friends visiting you in hospital.

It is therefore imperative that you keep all receipts relating to expenditure incurred as a result of the accident as the law requires proof of each item claimed for.

Future financial losses

In the most serious injury cases , future financial losses make up the bulk of the claim and cover such diverse areas as…

Loss of earnings
Nursing costs
Housing adaptations
Specialised mobility equipment
Transportation
Physiotherapy
Rehabilitation expenses

There is no financial limit on these damages and they are worked out (or quantified) with medical expert evidence. So, in relation to the costs of care, a care expert prepares a report which details your own individual needs with a costing in the report of the likely expense of these.

General Damages:

This is the sum of money that you are awarded to compensate you for your actual injury (rather then the financial losses associated with the injury). It is intended to compensate you for your pain, suffering and loss of amenity as a result of the accident. Whilst the sum is not awarded on a "tariff" figure, the Court makes awards of general damages in line with its previous decisions.

Awards of general damages range from a few hundred pounds for a relatively minor injury to approximately £205,000 for the most severe injuries.

Periodic payment orders

Under the Courts Act the Court will have the power, from April 2005, to impose what is called a "Periodic Payment Order" at the settlement of a substantial claim for compensation.

How this will happen in practice is that the case will be financially valued to ascertain the overall lifetime financial need for the Claimant. But where such an Order is made, the final award will be paid by way of a lump sum with the addition of an annuity purchased which will pay out an yearly sum based on an analysis of the Claimants future needs for the life of the Claimant.

The driving force behind this legislation is the Government who considers that its generally better for Claimants to receive their compensation by way of periodic payments rather then a lump sum where significant awards are made for future care costs and loss of earnings.

It is generally accepted that that periodic payments remove the concerns over how long a Claimant is going to live, and whether the compensation will run out during the Claimant’s lifetime – as there will be an annual payment made on account of damages for the life of the Claimant.

Further, where there is a period payment, there is generally no need for the Claimant to have an investment risk or need ongoing financial advice or management of their award.

For some time now – where both parties have been willing - it has been possible to enter into what was called a "structured settlement" where out of the lump sum award a portion was kept by as a capital sum, and the rest used to purchase an annuity. The benefits of this are that you can use the capital sum for extra needs whilst the annual sum (which will continue to be paid until you die) meets the needs of care costs, loss of income from employment etc.

Exactly how Periodic Payments will work in practice where the Court has the power to compel them is unclear; there have been difficulties with finding annuity providers in the past and there have been difficulties in ensuring that annuities keep pace with inflation. However, it is generally acknowledged that an annuity can give great peace of mind to a lot of Claimants.

Q. I was told that I would have to repay any DSS Benefits that I have received since my accident - is this true?

A. Yes, you may have to pay some. Before October 1997 benefits were recovered against all damages received over £2,500. A change in law means that after October 1997 no benefit is deductible against general damages. However, benefits will be recouped against certain areas of specific damages. There is a cut off period for recovery of benefits by the State; they will be recovered for either 5 years from the date of the accident or to the date of trial or settlement – whichever is the sooner.

Q. Is it possible to protect me from losing my benefits if I receive a large interim payment or a large award at the end of the day?

A. Yes, it is possible. It may well be worth your while setting up a Trust to avoid losing the right to means tested social security benefits. If you want to know more about this, SIA has a factsheet "Maximising Personal Injury Awards" obtainable from the Advice Line service (call 0800 980 0501)

Q. Can I avoid everyone knowing the amount of my settlement?

A. Yes, where an out of court settlement is arrived at after some time in court, you can ask your barrister not to mention the amount of the settlement in open court by requesting that the settlement be "agreed to the terms endorsed on Counsel’s Briefs". This means that the judge sees the amount but does not declare it in open court. The press will then not know the amount.