Top tips when running a catastrophic injury claim
As a solicitor representing individuals who have suffered serious injury as a result of someone else’s negligence, my role often involves assessing new enquiries to ascertain if we are able to help. Such an assessment will involve considering the issues surrounding liability; does the injured person have a reasonable claim? Will we be able to obtain the necessary documentation to prove the claim? Do we have enough time before limitation expires to obtain the relevant evidence? It will also involve looking at the injuries sustained and the potential value of the claim; were the injuries sustained caused by the accident or were there pre-existing injuries?
Where the accident has resulted in a catastrophic injury, additional questions may be required before you are able to decide if you can help. Do we have the expertise to deal with this claim? Can we take instructions from the injured person, or is their injury such that we will need to take instructions from someone else? How do we prove the claim if the injured person has amnesia and cannot remember the accident circumstances? These are questions that may not be required in other kinds of cases and require additional consideration.
As a solicitor representing victims of serious injury, I thought it may be useful if I set out some ‘top tips’ that I have found when dealing with these kinds of claims.
At the start of the claim, it is important, where possible, to meet with the injured person and their family. The claim will likely continue for many years and so it is vital that you begin building a relationship with the injured person and their family as soon as possible.
Whilst some claims for personal injury can be dealt with predominantly by phone and email, in a case where someone has suffered a catastrophic injury, I believe that there is no substitution for face to face meetings, where appropriate.
The injured person’s family will likely be an invaluable source of information, and so it is important that they feel comfortable to confide in you. This will only happen if they know you and feel confident in your abilities.
Further, it will likely be an incredibly difficult time for the injured person and their family. It may be the first time they have had to deal with a serious injury. It may also be the first time they have been involved in any form of court proceedings.
Taking the time to have that first meeting will not only aid you in better understanding the family and the relationship they have with the injured person, but it will also provide the family with another element of support which may assist them in coping with what has happened.
Where the injured person is not able to conduct the proceedings themselves as a result of their injury, you will need to appoint a Litigation Friend. Consideration may also need to be given to the appointment of a Deputy; lay or professional.
The family may have very strong views on who they consider it appropriate to appoint as Litigation Friend. In other circumstances, they may seek your guidance on who would be most appropriate. The advice which you provide in this instance is very important. The character and identity of the Litigation Friend can make progressing the claim very easy or incredibly difficult. You should consider issues such as family dynamics, relationship to the injured person, motivation for being the Litigation Friend, location and whether or not they are easily contactable. You may need to seek instructions quickly and so it is important that they can be contacted easily.
Capacity of the injured person may fluctuate throughout the life of the claim. The injured person may be taking very strong painkiller medication, in which case their lack of capacity may be transient in nature. Alternatively, they may have suffered a significant brain injury and they may never regain capacity. It is important to be alive to this issue and to keep it under review. It is something that should be considered regularly by appropriate medico legal experts and also treating or caring practitioners such as doctors, case managers and support workers. Should the injured person regain/lose capacity, you will of course need to review who it is that you are taking instructions from. Any application for deputyship will most likely only be appropriate where the individual is unlikely to regain capacity in the short term.
In my experience, whilst it is important to progress the litigation quickly, what will make the most impact to the injured person will be the rehabilitation that they receive in the early stages of their recovery. This should be prioritised in the first instance as this is when it will be most beneficial to the injured person.
The majority of individuals who have suffered a serious injury will see the greatest improvement in their symptoms in the first six months to two years following their injury. It is therefore vital that they are able to access the appropriate rehabilitation during this initial period.
In terms of NHS treatment it can sometimes be a ‘post code lottery’. Some local authorities will provide excellent post hospital discharge care which will continue the injured person’s rehabilitation and recovery post injury. Other local authorities will not have access to such facilities and the injured person will be discharged home. Whilst their care needs will likely be met at a basic level by district nurses and care assistants, it is unlikely that they will receive the focused rehabilitation that can be offered in a residential environment which may address physical and psychological difficulties. Such a rehabilitation programme may also offer vocational rehabilitation, with a view to helping the injured person return to work.
Serious Injury Guide
The Serious Injury Guide developed by APIL (Association of Personal Injury Lawyers) and FOIL (Forum of Insurance Lawyers) as well as a number of other major insurers, has now been in place since October 2015. Bolt Burdon Kemp has signed up to this Guide, as well as a number of different Claimant firms and insurers. This Guide is invaluable in putting the injured person at the centre of the process and ensuring that the parties work together to resolve liability disputes as soon as possible and provide the injured person with access to rehabilitation as soon as possible to maximise their recovery.
When beginning the claim, you should check if the insurer has signed up to the Serious Injury Guide. If they have, then they should know the procedural steps required and the benefit of such steps. If they do not, it may be useful to send the insurer a copy of the guide and draw their attention to the relevant parts. After all, it is in the interests of both parties that the injured person recovers as far as is possible, and as quickly as possible.
You should then send a letter of early notification to the insurer. The aim of this is to provide the insurer with as much information as is possible to allow them to begin to investigate the claim. This should be sent even if you do not have sufficient information to enable you to prepare a detailed letter before claim. This will not only benefit the insurer in having more time to investigate the claim, but it will also benefit the injured person as the parties may then be able to agree access to early rehabilitation under the Rehabilitation Code.
At some stage in the claim, you will be required to prepare witness statements. You will need to prepare a statement for the injured person themselves, if they are capable of doing so. You may also need to prepare statements for their family and friends. It is important to consider these at an early stage, rather than waiting until they are ordered by the court some three or four years later, by which time the injured person and their family may find it difficult to remember many details surrounding the injured person’s recovery.
In preparing witness evidence, there are a number of documents which may be invaluable in preparing a detailed and accurate witness statement. This may include medical records, support worker notes, case management notes and attendance notes of conversations with the injured person, their family or the case manager. DWP records may also be useful in demonstrating the kinds of difficulties the individual has suffered.
In my experience, I find it easier to update witness statements as I go along rather than preparing one at the end of the claim. This allows me to see the progress of their recovery and rehabilitation following the injury. Such a working document may also be useful for things such as instructions to experts, interim payment applications or deputyship applications, where relevant.
A personal injury claim for an accident which has resulted in a catastrophic injury must be handled with care. The injury itself will likely be multi-factorial and it can often take significant investigation to understand all of the difficulties an individual is suffering from, as some difficulties may be more subtle than others. Claims of this nature require specific expertise and additional considerations which may not be relevant in other kinds of cases. The above considerations may assist in ensuring you are doing the best for your injured client.