Speak to Jim Gladman about professional negligence law
If you think that your solicitor may have made a mistake by missing a deadline, or by not claiming enough compensation for you, then you should contact us for advice because your solicitor may have been negligent.
You may be able to claim compensation for any damages that were not originally recovered for you.
We can help you assess whether there has been negligence on the part of your solicitor in the conduct of your personal injury or clinical negligence claim.
The negligence of a solicitor in the conduct of a personal injury claim or a medical negligence claim can fall into the following broad categories:
- Failing to do something in time.
- Not claiming for, or not obtaining, enough compensation.
- Not advising on how to preserve the right to benefits and keep all of the compensation and failing to advise on setting up a Personal Injury Trust (so that you lost the right to continue to receive means-tested benefits).
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If your solicitor was negligent then you will need expert legal advice. Contact us for free on 0800 138 0458 to discuss this.
Failing to do something in time
Every claim has a limitation period and a limitation date. If there is a valid claim, Court proceedings should be started before the limitation date (before the limitation period expires). Court proceedings are started by issuing a Claim Form. Once issued, the Claim Form should be served on the Defendant within 4 months.
A solicitor can be negligent in:
- Failing to issue the Claim Form in time.
- Failing to serve the Claim Form in time.
After a Defence to the claim has been filed the Court will fix a timetable for when steps have to be taken. Failure to take certain steps without obtaining an extension of time from the Court can have disastrous consequences. For example, in some cases the claim can be struck out altogether.
In other cases, if a solicitor:
- Fails to serve a witness statement in time the Court will not allow that witness evidence to be heard.
- Fails to serve a medical expert’s report in time the Court will not allow that expert evidence to be heard.
As you have to prove your case by providing evidence to the Court it will have serious consequences if you cannot prove all or part of the claim without having witness or expert evidence to back it up. If you cannot produce the evidence to Court to prove the essential elements of the claim then the claim will either fail completely or the damages that could have been recovered will be reduced.
Not claiming enough compensation
Each case is different. The total compensation recovered is made up of different parts (lawyers call these heads of damage). They do not apply in every case and will depend on your individual circumstances prior to suffering the injury.
Damages for pain, suffering and loss of amenity are referred to as general damages.
General damages are awarded for the pain and suffering caused by an injury, both in the past and in to the future. The level of damages will depend upon the duration and intensity of the pain and suffering. Damages are also awarded for the reduction in the ability to perform everyday tasks and enjoy life. This can include interference with hobbies and past times, loss of a skill or craft and loss of enjoyment of a holiday. This is usually put together as a claim for pain, suffering and loss of amenity.
When assessing damages for pain, suffering and loss of amenity we consider previous awards of damages made by Judges in earlier cases. We look for a case that is very similar. It is not always possible to find an exact match. If there are cases that are more severe and cases that are less severe then we assess where the claim falls between the two.
Depending on the circumstance of the case, damages can also be recovered for financial losses arising from the injury.
If not enough compensation is recovered this is referred to as an under-settlement. Under-settling a claim can arise from missing a head of damage, such as a claim for:
- Loss of earnings
- Loss of pension
- Disadvantage on the labour market
- Loss of congenial employment
- Housing costs
- Care and assistance
- Help required undertaking tasks that you undertook before the injury (decorating, DIY, gardening etc)
- Mobility and transport
- Medical treatment, medical care and expenses
This is not a complete list. There are other financial losses that can be claimed for in appropriate cases.
Judges and lawyers have developed ways to assist in calculating various financial losses. Large books have been written for lawyers to explain these calculations and the way to assess damages.
The objective of paying damages is to put you in the position that you would have been if you had not sustained the injury. In some cases this is relatively straightforward. In other cases it becomes more difficult when losses run into the future and where there are a number of uncertainties, which mean that a straightforward calculation is not possible.
To explain these very briefly:
Loss of earnings
If you were in regular employment at the date of the injury, the calculation of loss of earnings up to the date of the settlement or the trial is usually relatively simple. The calculations are based on average net earnings prior to the injury. If you were employed it will be based on information obtained from your employer. If you were self-employed it will be based on information obtained from your accounts and tax returns.
The assessment of future loss of earnings is often more complicated. This is because of the uncertainties involved in assessing what might happen in the future. If you have a consistent track record of employment, it is easier to convince a Judge that you would have remained in full time employment for the foreseeable future, but not necessarily until retirement. If you had a poor track record of employment, or had not worked for some time before the injury, then it becomes harder to establish a claim for future loss of earnings.
It is possible to include a claim for additional earnings related benefits such as a company car, mobile telephone bills, and health benefits.
Loss of pension
If you had an occupational pension scheme provided by your employer, that contribution will stop if you cannot work because of the injury. Payments into your pension fund will stop when you take ill-health retirement. At normal retirement age your colleagues, who continued working, will receive their retirement pension. If you are injured then your ill-health pension will not be as much (both in terms of the annual pension and any lump sum) as that paid to your colleagues. This is a pension loss.
Disadvantage on the labour market
Even though you may have been able to return to work, you may be at a disadvantage in obtaining employment if you were to lose your job later on. You will have a potential loss of earning capacity. In order to obtain compensation for this loss, you would have to show that there was a risk of you losing your job in the future and that you would then find it harder to obtain employment because of your disability arising from the injury.
Lawyers often refer to this as a “Smith v Manchester Award” based on the case of Smith v Manchester Corporation.
Loss of congenial employment
If you were lucky enough to enjoy your job when working and then lost that job because of your injury, you might be able to obtain a job that paid you the same amount of money but be much less enjoyable to you for various reasons. This part of the claim is referred to as a claim for “loss of congenial employment” and it relates to a loss of job satisfaction caused by the injury.
There is no formula for assessing damages for this head of damage but there are a number of cases that give guidance on what might be recovered.
Typical claims for loss of congenial employment have been made by nurses, firemen, [further examples]. It could be that you took satisfaction from your job because it was viewed as having value to the general public, or you were providing a particular public service. There might have been particular factors associated with your work gave you great satisfaction such as camaraderie or working as a valued member of a team, etc.
There may be a number of reasons why you enjoyed your previous employment and find your present employment much less rewarding, and not just in terms of the pay that you receive.
A serious injury may have implications in respect of your housing requirements. In a very serious case you may require to move into new accommodation, for example you may require a bungalow. Alternatively, you might require adaptions to your house. There may also be increased running costs for the home in respect of heating bills.
Care and assistance
If you have needed personal care as a result of the injury, and you have paid for that care, it is possible to make a claim for that. This is provided that the cost was reasonable.
There is a difference between care and assistance provided to you by a member of your family or a friend compared to your loss of capacity to undertake tasks around the house and garden. See below. Care can include assistance with washing, dressing, preparing meals, shopping and laundry, etc.
As well as making a claim for the care that you have paid for, it is also possible to make a claim for the care that has been provided to you for free by members of your family and by friends. This is known as a claim for gratuitous care.
Decorating, DIY, gardening, etc.
You may have lost the ability to perform tasks around the home because of your injury or disability. You can recover damages for the cost of replacing those services. Tasks which commonly fall into this category of services are decorating, DIY, gardening, car maintenance, household maintenance, window cleaning and housekeeping.
In order to succeed in such a claim for such services you need to establish that:-
1. Prior to the injury you performed the task(s) being claimed for.
2. As a result of your injury/disability you can no longer perform the task(s) or can no longer undertake the task(s) to the extent that you were previously able to.
3. The task(s) in question was carried out by someone else.
If you have paid someone to undertake the task(s) in question, (for example, decorating the house), you can recover the reasonable cost of that. This is only for the time (labour) that it took and not for the materials, because these would have had to be paid for in any event.
Alternatively, if you relied on family or friends to carry out the task(s) in question, you can make a claim for the value of the work carried out.
Mobility and transport
If you have been disabled by the injury “mobility” can often mean more independence.
In appropriate cases, a claim can be made for the additional cost of buying a more suitable vehicle or for the cost of making adaptions to your car.
There are also expenses to claim in respect of travelling to and from medical appointments. This may include a claim for the mileage, parking, and if you require someone else to drive you, a claim for the time of that person in doing this.
Medical treatment, medical care and expenses
In appropriate cases, a claim can be made for the reasonable cost of providing medical treatment, paying for medication (where large amounts of medication is required or is taken regularly, then an annual prescription should be purchased).
Claims can also be made for suitable aids and equipment. In some cases it is possible to recover compensation for treatment paid for privately rather than on the NHS. There may be good reasons why you require an operation to be undertaken privately but it is sensible to discuss this with your solicitor first to consider whether that cost may be recovered from the Defendant.
Failure to advise on a Personal Injury Trust
Depending on the amount of your damages, your receipt of a compensation payment can stop you from receiving means tested benefits.
You have a legal obligation to inform the Department for Work and Pensions/Local Authority of the change in your financial circumstances when you receive your damages.
You can lose your right to receive state (DWP) benefits when your compensation is paid to you. It can also cause problems if you are in Residential care, or are likely to be entitled to Residential or Domiciliary Care Services from your Local Authority in the future.
Your entitlement to means tested benefits can be protected by setting up a Personal Injury Trust (a “Special Needs” Trust). This is very easy to do. The purpose of setting up such a trust is to preserve your entitlement to the benefits.
You have a legal right to set up a Personal Injury Trust to protect your entitlement to means tested state benefits. This applies not only to benefits you currently receive, but also any future benefits to which you may be entitled. The trust allows you to save or spend your compensation whilst still being paid your benefits.
If you think your solicitor may have mishandled your claim, contact our team for a free initial consultation on 0800 138 0458.