Debunking the myths and misconceptions of personal injury claims
Our personal injury lawyers regularly receive enquiries from people wondering if they are eligible to claim compensation. While we want to help everyone as best we can, not all accident circumstances or injuries meet the threshold for a successful personal injury claim.
This guide debunks some common misunderstandings about what a valid personal injury claim requires to help you understand whether your injury supports a compensation claim.
Someone being at fault isn’t the same as having a claim
The myth: “I was injured, so someone must be liable”
Not necessarily. Genuine personal injury claims need evidence to demonstrate a duty of care owed, a clear breach of that duty, and causation. As harsh as this may sound, it’s not enough that something bad happened to you.
To satisfy the test for a successful personal injury claim, your solicitor will need to be able to prove that there was a duty of care and this duty was breached, and that there was a direct link (causation) between this and your injury.
Example: you slipped on a wet floor in a supermarket. The fact that you slipped is not enough to win a claim; you would need to show that the supermarket failed to take ‘reasonable steps’ to keep the floor safe and free of hazards. If a customer had spilt their drink in the moment before you entered the store, causing the wet floor, and there was insufficient time for supermarket staff to spot the spillage and clean it up, then it is possible there would be no blame attached to the supermarket, as staff had not had enough time to notice it and clear it.
Just because the injury happened on someone else’s premises doesn’t automatically mean liability.
Compensation is carefully calculated, not guessed based on similar claims
The myth: “I heard someone got £40,000 for the same thing; you’ll get a huge payout”
Whilst compensation is awarded if a personal injury claim is successful, the value of the payout can vary significantly and requires careful thought and consideration.
Compensation is calculated on proven losses and injury duration and severity, and a lawyer will value your claim based on two elements: general damages and special damages.
General damages refer to the pain and suffering the injury has caused, and special damages relate to financial losses which have occurred because of your injury. Both these elements require supporting evidence such as medical records, medico-legal reports, receipts and payslips. While someone else may have experienced something similar, the impact of this on their health, wellbeing and finances is unlikely to be the same.
Example: you are a cyclist who got hit by someone opening a car door into your path. You fell off your bike and broke your femur. Something similar happened to someone in your cycling group, and they suffered a significant leg injury. Both injuries required medical treatment; however, you returned to work after four weeks. During that time, you received full sick pay, and when you returned to your job, which was desk-based, you were able to manage your injury. Whereas your friend had to undergo a lengthy rehabilitation process, further doctor appointments, and was unable to return to their manual labour job for three months, receiving only statutory sick pay. While you may have incurred some expenses, your friend is likely to have suffered a greater loss, both in terms of income and wellbeing.
Read more about how a personal injury claim is valued here.
No win, no fee isn’t the same as zero risk
The myth: “No win no fee means I have nothing to lose, so I may as well make a claim if it’s free”
A Conditional Fee Arrangement (CFA) or ‘no win, no fee’ is a common way of funding a personal injury claim. Under this arrangement, if your claim is successful, you typically do not have to pay anything upfront; it is only later that payment for legal costs is required, and at that time, it is deducted from your final compensation.
Your lawyer must be convinced there is a greater than 50% chance of winning your claim for them to offer you a CFA. This assessment is undertaken by your legal team at the beginning of the claim and throughout the case.
Delay damages your evidence
The myth: “I’ll wait and see how bad it gets”
The three-year limitation period for personal injury claims exists for good reason. The longer you wait, the bigger the gap gets between the injury and starting the claim, and this gap can impact evidence and credibility and lead to inconsistencies in how we support your claim.
Of course, not all injuries are immediately obvious. Some conditions take time to develop or be diagnosed, and sometimes it is too early to tell if the value of the claim is over £1,500. It is worth noting that usually, only claims where the injury element is worth more than £1,500 allow you to recover legal costs in addition to any compensation. If your injury compensation is under £1,500, you usually cannot recover your legal costs from the losing party, meaning you may have to pay your solicitor out of your compensation.
The ‘date of knowledge’ rule means that the three-year ‘clock’ can start from the date you knew (or reasonably should have known) that you had suffered a significant injury and that it was caused by someone else’s act or negligence. The person must also be identifiable.
There are also exceptions to the three-year limit, such as claims involving children or fatal injuries, which you can read about here.
Whatever time limit may apply to your injury, it’s important to seek legal advice as soon as possible after your injury or as soon as you become aware of your injury.
Exaggerating your claim can cost you everything
The myth: “A minor exaggeration won’t hurt”
It can be tempting to exaggerate your injury or what happened to give more weight to your experience when first speaking to a solicitor. However, there are strict rules when it comes to honesty.
Under the Criminal Justice and Courts Act 2015, courts can dismiss an entire personal injury claim (including any genuine elements) if it believes there has been fundamental dishonesty. This not only means your claim could be struck out, but you may be liable for the legal costs incurred in pursuing the claim.
When your claim is being investigated by the Defendant’s legal team or insurer, they will carry out a thorough examination, which may include looking at your medical records, CCTV and even social media. This is why it’s vital to be honest with your solicitor from the outset.
‘Weak’ claims don’t just go away quietly
The myth: “The other side will just settle”
An experienced personal injury solicitor will tell you if your case isn’t strong enough, and that’s a good thing. You don’t want to waste your time or theirs, especially if it reaches the point of expensive and stressful litigation.
Defendants and their insurers will push back on weak or dishonest claims. If there is a hint of a claim being weak, unfounded or exaggerated, the Defendant is unlikely to pay out compensation just to get it to ‘go away’. This mindset will only heighten the risk of unnecessary litigation, court proceedings and high legal costs.
Contributory negligence doesn’t undermine your claim
The myth: “I can’t claim because it was partly my fault”
Sometimes, Claimants (the person injured) in personal injury claims aren’t entirely blameless. But this doesn’t mean they can’t claim compensation.
Contributory negligence is where the Claimant contributed to the accident in some way. A common example is being injured in a road traffic accident that wasn’t their fault, but they weren’t wearing a seatbelt or helmet, or slipping on a wet floor when they weren’t paying attention, e.g. they were on their mobile phone.
If the court finds that contributory negligence is a factor in your claim, you can still recover some compensation, but it may be reduced.
You’re legally protected against being penalised for making a claim
The myth: “I’ll get into trouble or lose my job if I claim against my employer”
A common reason why people delay genuine workplace injury claims is that they don’t want to get their employer in trouble. This is an understandable concern; however, this is precisely why Employer’s Liability Insurance exists.
Every employer in the UK with one or more employees must hold Employers’ Liability Insurance, which specifically covers personal injury claims brought by employees. When you claim against your employer, you are claiming against their insurer, not taking money from their/your manager’s pocket.
Your employer cannot legally prevent you from bringing a personal injury claim. And you cannot be sacked or treated unfairly solely for making a legitimate claim against them.
It’s natural to worry about damaging your working relationship and/or losing your job if you make a claim against your employer. It’s important to remember that this claim isn’t about your manager or another individual; it’s against your employer organisation.
The law is there to protect you
Employers have a legal responsibility to ensure a safe working environment, and if your claim arises from health and safety complaints, then you have legal protection from an automatic unfair dismissal and/or general unfair dismissal claim.
If your employer treats you unfairly because you brought a personal injury claim against them, e.g. they dismiss you, demote you or treat you unfavourably, this may constitute automatic unfair dismissal. You have a legal right to claim when your employer fails in their duty of care, and therefore, you are legally protected against being penalised for doing so.
A knowledgeable solicitor can advise you on any employment implications because of your claim and how to navigate these.
Contact our personal injury solicitors
Starting a personal injury claim can feel overwhelming, but it doesn’t have to be with the right legal support.
If you believe you may be eligible to claim compensation for an injury you sustained as a result of someone else’s negligence, get in touch. Call our personal injury lawyers on 0117 325 2929 or fill out our online enquiry form.
