What is a personal injury?
The emphasis is on personal as applying to one’s body and/or mind as opposed to damage to one’s property. If one was to seek redress or compensation for a personal injury from whoever caused it one would engage a personal injury attorney.
Who is a personal injury attorney?
A personal injury attorney is a lawyer who provides legal representation to anyone who claims to have been injured, physically or psychologically by the negligence, wilful or unintended action, or lack of it, of someone else.
Who can the someone else be?
The someone else
can be obvious – the driver of a vehicle perhaps, or a surgeon who botched a surgical procedure
or less obvious – someone at the head of a business entity whose policy or product caused an injury, a shopping mall owner whose floor was slippery, a local Council whose footpath was uneven, the owner of a dog who should have been controlling it.
What are the most common personal injuries?
- Vehicle Accident. From trucks and buses to bicycles.
- Workplace Accident or illness caused by workplace. Includes strain from repetitive tasks (individually inconsequential) such as restaurant kitchen or room service workers may suffer,
and illness from airborne pollutants such as solvents, dust or smoke. And also injury occurring over a long term such as industrial deafness.
- Faulty Product, or appliance injury. These can include household items such as furnishings and appliances, food or ingredients bought as a packaged item, or served in a restaurant, and faults in vehicles that cause an accident.
- Dog (and other animal) Bites from an animal that ought to have been controlled by an owner.
- Medical (clinical, and nursing and allied professional) Negligence or Malpractice at hospital, clinic, home, or nursing home. This is a wide topic and involves everything from wrongful birth to wrongful death, all that’s in between.
- Elder Abuse (other than medical negligence).
- Military Service (or consequent from) such as PTSD. (as well as the usual workplace injuries)
- Public Space (including public transport) such as Slip or Fall in a shopping mall or public street or plaza. This can also include accidents that happen in a holiday resort, fun fair, concert or stadium. It can include accidents happening because or insufficient supervision where it would be expected.
- Environmental Injury such as from dust, asbestos, oil or chemicals (apart from workplace). Examples could be dust from a quarry, asbestos in a building product, or marine oil spill.
Do you have a case?
You may have heard about some extraordinary payouts for compensation (like the guy who got bumped by a sliding door on a cruise ship and got millions, plus added penalty, and think you should too. All cases are different, are presented, defended, and judged differently.
There is a huge variety of case law, and new speculative test cases often add to that. It is very complex and you should engage a specialist personal injury attorney (especially one having had very relevant cases) rather than a generalist attorney who “also does” injuries.
What do you need to have a case?
To have a good case you need :
to first demonstrate that you have an injury, and second that is caused by someone else – directly, or indirectly.
What is now win-no fee?
There is a trend to more litigation done on a no win, no fee basis. That’s not because lawyers are become more charitable (yes, there are many lawyers who do some pro bono work for charities or special cases) but because there is more in it for them. It’s a win-win. For the lawyers – it gets business, and for the plaintiffs too – no big upfront cost.
In run of the mill disputes, like a dispute between neighbours over a boundary, or with a business over a small debt, a law firm will present a bill based on a schedule of fees for their doing their thing : writing letters of demand, attendances, making depositions or affidavits, the minutes or hours spent doing – whatever.
In litigation over an injury and its consequences a successful award can be large, and much more than the sum of itemised costs would have been. Straight forward cases are not as speculative as they once were and the likelihood of success and amount of the award is more predictable. Also there’s so many attorneys and so much competition in this country that some law firms will take on any case with some chance of success on a no win – no fee basis.
The plaintiffs accept a no win-no fee agreement often because they usually have no real choice, particularly if they are severely financially affected by the very injury that is the cause of the claim. Few people could pay the up front and ongoing costs of running a case, especially if the defending attorneys do whatever they can to stall, (it happens, and the insurance companies are good at it), extend and lodge appeals. The trade-off for the plaintiffs is that the attorneys take a substantial part (about 30%) of the compensation, and that the judgement does not take that into consideration in assessing the amount of compensation.
If you are well insured and your insurers want to be involved in the case, you should stay up to date and involved in procedings, and to know what is reasonable to expect and not compromise. If in doubt of not getting the best outcome get an independent opinion.
If your case is clear cut and your attorneys say it has a high chance of success, you may be best to pay the ongoing costs out of savings, or to get a loan. Your attorney should be able to estimate the cost and likelihood of success and likely award if you win, and what costs you will be liable for, if you lose. You can do the arithmetic and assess your odds.
The No Win-No Fee Procedure
The law firm will look at your case in detail, and assess it against case law, and any possible variation. They will only take on your case if they are very confident of winning a good compensation for you, and them. (They, and you, do not want a pyrrhic victory with merely a token award). It is they who are taking the risk of spending their (very valuable) time on the case.
If they accept your case they will, of course, prepare an agreement (Conditional Fee Agreement) setting out the percentage (or fixed amount plus percentage) of the settlement, and what costs will be payable by you if you are not successful. Some firms may require you to pay some, or all, of the outgoings : court costs, witness’s expenses, expert’s fees, or any costs other than the Firms’ fees. That needs to be clear. Usually you will need to pay all of the defending parties’ costs (which can be very large) if you lose your case.
What can I claim as compensation?
There are several components to compensation, and of course vary as appropriate for a twisted ankle to severe near death trauma, or a life shortening illness. Strange outcomes can happen. One could be a fairly exact amount for actual incurred costs plus a vastly greater vaguely determined amount for “pain and suffering”, which could be just the whim of a judge, or jury.
There are quite defined tangible quantifiable costs, reasonably quantifiable future costs, and many vaguely quantifiable lifetime expenses and non monetary “costs” and “amenity” losses… such as
- Medical (and allied psychological, physiotherapy, chiropractic, recuperation) occurred and near term ongoing
- Repair damage costs to property
- Incidentals such as accommodation, loss of wages before (if) getting back to work.
- A specific assessed amount for loss of or incapacity of part of one’s body, such as an arm, leg or eye.
- If necessary, equipment for restoring mobility such as wheelchair (and enabling wheelchair access throughout a house), vehicle purchase or fitout for handicapped person.
- Future medical (and etc) expenses, including any employed assistant or carer.
- Loss of future wages, salary or business income and opportunity.
- Bereavement, or loss of companionship, loss of mobilty, or of general fitness and ability, loss of “love life” perhaps, general loss of enjoyment and amenity, shortened life expectancy
- Pain and suffering