Very often solicitors are obliged to remind clients that the first thing that is to be noted when pursuing a personal injury claim is that it is in fact just that; a personal injury claim. A near miss, even where the other party has been criminally negligent, does not entitle the client to sue for personal injury compensation. Some injuries are not always visible and the solicitor will use medical records and reports to argue not only the seriousness of the injury, but in some cases, that an injury has in fact been sustained.
The above concerns are of course irrelevant when considering serious personal injury claims. That a serious injury has in fact occurred is more often than not evident from the outset. The signs of brain, spinal or burns injuries and amputations for example are unfortunately all too apparent.
The consequences of a serious injury can sadly be catastrophic. The injured person may be unable to work for a long period of time or even again. Some victims may require 24 hour care indefinitely. In such circumstances a personal injury compensation claim may not merely be an option for the plaintiff and his or her family but a necessity, required in order to obtain the financial resources required to rebuild, insofar as is possible, that person’s life.
The focus of the plaintiff’s legal team will be concentrated not on whether the injury occurred but on how it occurred and its gravity.
The serious injury sustained must have been a consequence of the negligence of someone who owed a duty of care towards the victim at the time of and in all the circumstances of the accident. This could be an employee to his staff or a bar or café its customers.
Consider the following example: If Anne falls down stairs in a department store and suffers a serious neck injury, she may not be able to successfully claim against the store company if the stairs conformed with all the required safety legislation and there were no other negligent acts on the part of the defendant relevant to the accident. The court might decide that Anne’s injury was unfortunate or perhaps due to her own lack of attention and that therefore the proprietors of the department store cannot be held responsible for her loss.
In some circumstances it may be ruled by the court that both the defendant and the claimant were to blame for the plaintiff’s serious injury. In such cases the principle of contributory negligence is applicable.
Contributory negligence is the principle in law that an injured party i.e. the claimant may have contributed to his or her own injury by behaving in a negligent manner when faced with the obvious risks. In comparison with the negligence of the defendant, the extent of contributory negligence may defeat the plaintiff’s case or reduce the amount of compensation awarded.
If we take another look at the above example of Anne’s fall in the department store and this time assume that there was a problem with the stairs in question e.g. the handrail was faulty, she may have a successful claim. If, however, it can be proven that Anne was for example wearing inappropriate footwear, or talking on a mobile phone at the time she fell, or had been drinking prior to the event it could be argued that her carelessness contributed to her own accident and therefore the compensation awarded may be reduced by a percentage that the judge feels is appropriate.
What should I do if I have been seriously injured in an accident caused by another?
Any personal injury litigation solicitor would agree that there a number of steps that a potential plaintiff should take immediately following an accident. These will normally include calling the gardai or, if appropriate, requesting that the accident be recorded by the proprietor of the property in which the incident occurred. Further steps may include obtaining the name and address (and insurance details) of the other party, the details of any witnesses and perhaps taking photographs or a video of the conditions in which the accident happened with a mobile phone.
After a suffering a serious injury, however, the above advice is of course irrelevant. A victim of a serious injury may well be unconscious following the accident and even if this is not the case the overriding necessity at that moment will be to get that person to hospital. The names of witnesses and other such details will quite rightly be at the bottom of the priority list at such moments.
As soon as it is feasible however, one should contact a personal injury solicitor to discuss options. The sooner this is done the better as details will remain fresh in our minds and those of any witnesses. It should also remember that (in normal circumstances) we have only two years from the “Date of Knowledge” of an injury to bring a claim.
The date of knowledge
The date of knowledge is the date on which the claimant became aware of his or her injury. This will normally be the date of the accident itself. It is important, therefore, that the victim of a serious injury contacts a solicitor at the earliest opportunity following an accident. The truth is that, save for a small number of specific exceptions, the opportunity to take legal proceedings will be lost precisely two years after the date of knowledge.
Injuries to children
In the case of a serious personal injury to a minor the date of knowledge of the injury is in fact the minor victim’s eighteenth birthday i.e. time does not begin to run against the injured child until he or she reaches majority (eighteen years of age). Thereafter the injured party has two years after their eighteenth birthday to issue proceedings in court. Alternatively, the victim can however make a compensation claim before he or she turns eighteen provided a parent or guardian acts as ‘next friend’. The same rule of thumb, that a solicitor be contacted at the first opportunity should your child have been injured due to another’s negligence, therefore still applies.
How is the statute date calculated?
Provided that you contact a solicitor as soon as possible following your serious accident the statute of limitation should not pose any threat your claim in. An experienced personal injury litigation solicitor will be well aware of the time limits applicable and will ensure that the necessary steps will be taken within the allocated time.
The following dates are essential in calculating the Statute of Limitation.
a.) The date of the accident.
b.) The date of expiration of the two-year period from the date of the accident.
c.) The date of lodgement of the InjuriesBoard.ie form A.
d.) The date of the “Section 50” acknowledgement letter.
e.) The InjuriesBoard.ie Authorisation.
f.) The six months date from the Authorisation.
g.) The balance of the two-year period for the issue of Court Proceedings.
If we assume for example that Sinéad had a serious accident on the 1st of June 2008. Sinéad promptly contacted her solicitor who made an application on her behalf to the InjuriesBoard.ie which was deemed received and complete on the 1st September 2008 (3 months after the date that the accident had occurred). The claim remained in the InjuriesBoard.ie until the 1st of June 2009 when it was released by way of Authorisation. The limitation period starts to run again 6 months later on the 1st of March 2010. A further period of one year and nine months remains (3 months of the two-year limitation period already having expired before the InjuriesBoard.ie application was lodged) and so the limitation period for Sinéad’s claim will expire on the 30th of November 2011 (being the day before 1st of December 2011; i.e., 1 year and 9 months from the 6 month period).
How is the ‘value’ of my serious accident injury claim decided?
The ‘value’ of your serious accident injury case (assuming there is no dispute that the other party was at fault) is normally assessed by considering the gravity of the injuries and how they will affect your working, family, recreational and personal life in the short, medium and long terms.
Serious injuries may take some time to fully manifest themselves and it may be several months or even years before your Doctors can give an accurate prognosis of the recovery period or diagnose a long-term condition.
A serious accident injury claim may include an aspect of “special damages” for loss of earnings (including potential loss of future earnings). This will depend on your profession and personal earning potential and is a reflection of the wages you will lose as a result of your injuries, not of the seriousness of the injuries themselves.
Should I settle my serious injury claim directly with an insurance company?
In recent years an increasing number of clients have reported that they had been contacted directly by the insurance company of the liable party with offers of settlement shortly after their serious accident. It goes without saying that, particularly given the present economic climate, many people feel a strong temptation to accept an early offer of settlement; the immediate offer of money without hassle is often too good to refuse.
What many clients do not realise, however, is that it is in fact impossible to calculate how much the claim is potentially worth at such an early stage. The risk, therefore, is that the plaintiff may settle their claim for a figure that represents only a fraction of its potential value. This is particularly true after a very serious injury as the full long-term effects of the injuries sustained may not always be immediately apparent.
It is perhaps sensible to ask oneself why the insurance company would make an offer of settlement at an early stage. The response is of course quite logical; it is usually done in order to save costs. Following a successful action by the plaintiff, the liable party will obviously be responsible for the victim’s compensation payment but also for both sets of legal costs and furthermore for the costs of procuring specialist medical reports.
It is important to note that each case is unique. If you have recently been involved in an accident and feel that you have a potential serious personal injury claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2018 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.