Putting things right or participating in a compensation culture? Six guiding principles for making a claim

Posted: 16/05/2016

There is regular press coverage about injury claims but rarely with any consistency of message. A piece about the UK’s ‘shocking’ compensation culture one day is followed by a story the next day about how fitting it is for a family to be compensated for the loss of a member due to negligence, be it an accident or substandard medical care.

The Penningtons Manches team is contacted every day by people seeking advice about bringing a claim. While some have a very clear idea of why they want to bring a claim and what they expect, others have no idea of the mechanics of a claim or what it will involve. Clinical negligence and personal injury partner, Philippa Luscombe, sets out her six guiding principles when advising a potential claimant.

• Start by looking at what a claim can and cannot achieve. Ultimately, a claim is about being compensated for injury and loss. Although money can never compensate for the pain and suffering of an injury, particularly a severe one, it can put right the financial consequences. Thus, if an individual or the breadwinner in a family is unable to work due to negligently caused injury, bringing a successful claim can recompense that loss of income both past and future (if applicable). This is therefore one of the things we often look at when advising a claim. Is there a clear financial loss of substance and is it ongoing? If so, then that may be a good reason to seek compensation.
• Another main reason for bringing a claim is to fund current or future rehabilitation and medical treatment. The NHS provides good acute care but there is a big gap between the follow-up therapy and rehabilitation available post injury on the NHS and what can be obtained privately. For most people suffering an injury, the priority is not money but getting better. Bringing an injury claim enables the opportunity to be seen by an independent medical expert to get recommendations for current or future treatment needs and then to claim the funds to be able to have that treatment when needed. This is often the main reason why we would advise someone to bring a claim – particularly if there may be long term consequences of their injury.
• Likewise, if people need care or assistance as a result of their injuries – either now or in the future - a claim can provide the assessment of that need and the funds to employ the relevant people. Where the effects of an injury are significantly affecting day-to-day life and may continue to do so, a claim can have real benefits in terms of funding treatment and assistance as needed.
• A claim can also be part of a process of understanding what has happened and why. As well as good medical evidence to assess the longer term impact of an injury and treatment needs, the investigation of a claim can often produce explanations and answers – particularly in the context of medical treatment or circumstances where the injured person does not know what happened or why. It can work hand in hand with criminal prosecutions and/or inquests to ensure that people take responsibility for their actions and lessons are learned.
• What a claim cannot do is to obtain an apology (although it sometimes happens) and it rarely ‘punishes’ individuals as is sometimes imagined. There is often simply an insurer or indemnity organisation making commercial decisions on what to pay out. Compensation in the UK, particularly for the injuries themselves or for the loss of a family member (aside from financial impact) is low and people are often offended or upset by what compensation is available.
• Bringing a claim is, by definition, a negative exercise. It focuses on what has gone wrong and what someone has lost. By definition, valuing a claim looks at what the claimant cannot do and will not be able to do in the future rather than on the positive. In circumstances where a child or an elderly family member has died due to a negligent act, compensation is extremely limited. Bringing a claim takes time – often years - and requires a lot of effort at certain stages in the process. All of this needs to be considered.

In summary, here are a few points to consider when an individual is contemplating bringing a claim:

Upsides

• In the context of medical treatment, investigation of a claim can produce an independent opinion and explanation of what has happened.
• Where there is an inquest , police or HSE investigation, running a claim alongside it can ensure that an individual and family are kept fully informed.
• Where there are direct financial losses, compensation can recompense those. Often this can be done on an interim basis.
• A claim can ensure that all potential current and future rehabilitation and/or treatment options which would benefit an individual are identified and the costs funded.
• The individual gets to meet with independent specialists and get a view and guidance on their injury, management and future.
• A claim can provide (again on an interim basis if needed) the funding for an individual to receive the care and assistance needed due to their injuries – both immediately and in the future.
• A claim can also identify an individual’s accommodation, transport or equipment needs resulting from their injuries.
• A claim should ensure future financial security to deal with losses or costs arising out of an injury.

Downsides

• Bringing a claim is not a quick process and the more serious the injury often the longer it can take.
• Defendants are not always rational in their decisions about what cases to fight. A claim that is disputed where someone is injured can add insult to injury.
• Bringing a claim involves going over the events leading up to injury and focusing on the negative effects.
• In cases involving the loss of a family member, unless there is a financial or practical dependency on that person, the value of any compensation can be very small. Sometimes so small that it will not warrant bringing a claim, however strong the merits of the case.
• Even a successful claim does not necessarily involve an apology or even an acknowledgement of error. Often the wrongdoer is hardly involved in the case at all.
• Recent changes in costs rules can mean that an individual has to pay part of their legal costs out of their damages.

There are therefore a number of very valid reasons for bringing an injury claim. But every case is different and it is very important that, before committing to a claim, an individual or family knows what they want to achieve and what will be involved. It is important that these things are discussed at the outset and full advice is sought.

Philippa Luscombe deals with all types of injury claims and is always happy to provide free initial advice on whether an individual has a basis for a claim and what would be involved.

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