What do you stand to lose if you do not make a claim for personal injury compensation in a situation where that would be a realistic option for you?
In this article, we will consider 3 ways you can lose out if you don’t make a personal injury claim. The general principles here may be obvious but probably not all of the details will be known to you already.
Knowing these things is an important part of your “informed consent” – i.e. having all the relevant points to hand before making your decision: to claim or not to claim.
Firstly, we will look at your “loss” due to your failure to give yourself the benefit of monetary compensation. In fact, that loss does not just apply to you; it can apply to others who would have to rely on you making a claim in order for them to be compensated as well.
Secondly, we will discuss the fact that you only have the choice to make a personal injury compensation claim for a limited period of time. The right does not last forever. Once the right is lost, you cannot reconsider your decision whether to make a claim or not.
Finally, we will consider how your opportunity to “change the system for the better” is at stake when you’re deciding if you should make a personal injury compensation claim .
Let’s look at each of these things in turn.
1. Losing out on the chance of compensation for you and others.
Firstly, if you don’t make a personal injury compensation claim, you lose the chance to get put back into the position you would have been in, but for the accident – so far as money can make that happen.
In a ‘simple’ personal injury claim, that means you receive
- no compensation for the pain and suffering associated with your injuries,
- no reimbursement of the past net wage loss you have suffered as a result of the accident,
- no recovery of any out-of-pocket expenses you have incurred as a result of your injuries, and
- no compensation for help you may have received from members of your family during the period when you were incapacitated following the accident.
In cases of more serious injury, the additional list of heads of claim could be missing out on would extend to things like:
- loss of pension rights;
- loss of future earnings – perhaps up to normal retirement age;
- loss of employability;
- not being able to have a state-of-the-art prosthetic limb.
Certain people and entities can claim losses they may have suffered but only by ‘piggy-backing’ onto your claim.
In other words, if you don’t make a claim, there is no way they can claim their losses back.
This can apply to family members who have provided services to you as a result of the accident or who have lost out on your ability to provide services to them due to your capacity. It also applies to reimbursement of wage loss.
Services claims are for close relatives who have given you – typically – nursing-type assistance. Though the hourly rates payable to them are modest, services claim levels into four figures are not uncommon.
But these are not ‘stand-alone’ claims.
If you don’t claim personal injury compensation from the third party who injured you, your relative will not be able to make a claim for compensation for the services they rendered to you or for the services which they had to pay someone else to carry out for them (e.g. home DIY, car repairs or gardening) because you were not fit enough to provide those services to them (as you would have done normally) for free.
If you were injured due to the fault of a third party who was not your employer, it may be that your employer will have continued to pay your wages…
…Even during the time when you were unfit for work as a result of the accident.
Provided they have an appropriate term in your contract of employment, if you make a claim against a third party for compensation, you will be able to include the wages your employer “lost” by paying you while you were off work (indeed, you must do that) so they can be reimbursed. But your employer’s claim to be reimbursed is conditional on you making the personal injury compensation claim against the third party. If you don’t make the claim, your employer loses out as well. And your employer can only claim ‘absence wages’ back from you if you have made a successful claim against the third party.
2. Losing your chance to have any choice at all as to whether to make a personal injury claim.
Claims for personal injury are generally subject to a 3-year time bar from the date of the ‘accident’/injury.
You must either settle your claim by agreement within the 3-year period from the date of loss or, if that cannot be done, raise a court action within 3 years from the date of injury in order to keep the claim alive beyond the 3-year deadline.
In limited circumstances, courts have power to allow claims to proceed even if they have been raised “out of time”. However, you should not rely on that as a basis for proceeding with your claim.
If the time bar passes without a court action being raised, your claim almost certainly becomes unenforceable / extinguished.
The 3-year period can be misleading because, if you leave your decision to claim until a week before the time bar, you will likely find it difficult (close to impossible) to engage a solicitor at such short notice.
Many problems rear up as you get close to the time bar and the risks for anyone taking on your claim at that stage rise exponentially. For example, many law firms will not take on a potential medical negligence claim if it is thought to be within one year of the time bar because there will not be enough time to make proper investigation before expiry of the time bar. On average, less investigation/lead time is needed for ‘ordinary’ personal injury claims but even ‘simple’ road traffic accident cases can vary dramatically in difficulty and complexity.
It is also important to note that in some situations the time bar comes sooner than 3 years from the date of accident. For accidents on marine vessels or on aircraft, the limitation period is often 2 years (with no possibility of an extension).
3. Losing your opportunity to make the world a safer place.
The third factor we are looking at in terms of what is ‘at stake’ in making a personal injury claim is the fact that, if you don’t make the claim, you lose the chance to change things for the better in future for others.
While there is never a guarantee that one of the impacts of a personal injury claim will be the introduction of improved safety measures which make it less likely – or even impossible – that the same accident could happen again in future, we have encountered situations where arguably that has happened.
A successful claim following a slip on the pedestrian bridge at Elgin railway station may have been a factor in the replacement of the bridge as a whole.
The identification of a blind spot for car drivers at an Elgin roundabout due to the positioning of a road sign almost certainly resulted in the re-siting of the sign.
If you do not make your personal injury claim, the knowledge of what went wrong and how your accident could have been avoided is mostly kept a secret.
If your claim is intimated, it’s likely that insurers for the third party will become involved and it is likely that they will consider whether any obvious measures could have prevented your accident. Such safety precautions may end up being put in place as a direct result of your accident.
Personal injury claims are about benefits which can include things like compensation, rehabilitation and “getting your life back on track” following injury.
But it is also about avoiding drawbacks.
Many clients tell us that one of the primary motivators for making a personal injury claim is to try to make sure that it does not happen to anyone else again in future. Making a claim will not always make a difference and it will not always be easy to know either way in any event. But if you do not make a claim, there’s almost no chance any remedial measures will be put in place to protect the safety of others in future.
It’s also fairly well understood in our experience that your ability to claim is time-limited and, if the time bar passes, it becomes irrelevant whether you want to make a claim or not – because you won’t be able to! What’s less-well appreciated is that, because of the fact that personal injury claims take time, if you leave it too late in the day, you won’t be able to find a solicitor to take on your claim because there will be too much to do in too short a time.
The ability of other people – e.g. close relatives and employers – to claim for losses as something ‘at stake’ depending on whether you decide to make a claim or not is probably more subtle and may be ‘news’ to you.
So things to take away from this article include that you have a limited period of time within which to decide to claim. Also: that it is not just you who will be potentially adversely affected if you decide not to claim. The list of others includes close relatives, employers and future accident victims caused by a failure to learn the lessons which should have been learned from what went wrong in causing your accident.
How we can help
We hope you have found the information in this article to be helpful to you and maybe a bit thought-provoking. If you have any questions about the content of the article or about the wider personal injury claims handling services provided by us at Moray Claims / Grigor & Young LLP, please do not hesitate to get in touch with us.