How to make an injury claim – Part 1

January is traditionally the time of year we take a personal stocktake of our lives.  My New Year's resolution list has remained relatively unchanged since my early twenties – lose weight, write that novel and get a proper job.  One out of three ain't bad.  People generally resolve to “sort their life out” which means solicitors and Jeremy Kyle get an influx of calls in the New Year with this said aim. 

Us solicitors can't sort every aspect of your life out (I can't get you a refund for your hastily bought and much repented unused gym subscription[i]) but we can help you with that legal query you've been meaning to ask.  I work for the injury and medical claims department and this blog will concentrate on that area of law but whatever your question, I'm pretty sure someone here will be able to help or know where you can get help. 

It's worth beginning by running through two basic principles, “when” and “why” you can bring a claim.  

The When

The usual rule is that you can only make a claim if the accident/medical incident happened in the last 3 years (this is called limitation).  As always, there are exceptions to this rule[ii].  If the injured party

• is a child they have until their 21st birthday to make a claim;
• does not have legal capacity (for example, due to a severe brain injury) then there is no time limit to bringing a claim;
• dies then their estate has 3 years from the date of death to bring a claim (so long as the limitation period has not expired by the time of death);
• doesn't know that their injuries are as a result of negligence, the limitation period does not start to run until they do know or ought to have known (this is called date of knowledge and it is common in medical negligence claims).

This list is not exhaustive.

I would add to this not to make the call on the 3rd anniversary. The rule means a claim must be issued at court within 3 years.  Claims take time to investigate.  We want to be well prepared when it comes to issuing so you're unlikely to meet much success if you ring a solicitor the day before limitation expires, or even a few months before.  Some firms have a policy of not taking a case on with less than a year left to run.  We don’t operate that policy at Anthony Gold, we will consider each individual case but  please call a solicitor as soon as possible; don't put it off.  It will be New Year again before you know it and you still haven't been able to tick this off your list.  Call today!

The Why

This next point may seem obvious but it is worth making.  You can only make a claim if the injury is due to negligence.  I say it is worth making as it appears to be a commonly held belief that if you have 

• an accident at work  – your employer is obliged to compensate you;
• a car accident – somebody's insurer is going to pay out;
• an operation that didn't have the desired outcome – the NHS will pay because it's a government body and it's our right to be compensated.

This just isn’t how the English legal system works.  We do not live in a “no fault” society. 

I'll give an example of a common type of query but the premise holds true for all claims.

Even after running through these varying questions with potential clients and ending up in the “No” column, a client will often say “But my ankle is fractured, I can’t work and it really hurts”.  The fact that an injury occurred does not mean there is a claim.  The phrase “Where there's blame, there's a claim” is like fingernails on a chalkboard to me, but it is a handy idiom to remember if you are considering making a claim. Just don't ever repeat it to me. 

So now you know a little bit more about when you can bring a claim and why you can bring a claim. Next time I'll cover why you may be having difficulty in getting a solicitor to look at your case, how to choose a solicitor and how claims can be funded.

[i] Actually I can if you can't get to the gym because of your injury but I don't want to encourage such extreme gym avoidance.

[ii] The general rule can also be disapplied even when it does not fall within an exception but only in extreme cases.  For example, a person in their 40s bringing a claim for sexual abuse suffered as a child may find a judge sympathetic to then not being able to instigate a claim until they felt safe and secure in their lives.