Letter of claim

3.1

The claimant shall send to the proposed defendant two copies of a letter of claim, immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy of the letter is for the defendant, the second for passing on to his insurers.

3.2

The letter shall contain a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered and of any financial loss incurred. In cases of road traffic accidents, the letter should provide the name and address of the hospital where treatment has been obtained and the claimant’s hospital reference number. Where the case is funded by a conditional fee agreement (or collective conditional fee agreement), notification should be given of the existence of the agreement and where appropriate, that there is a success fee and/or insurance premium, although not the level of the success fee or premium.

3.3

Solicitors are recommended to use a standard format for such a letter – an example is at Annex A: this can be amended to suit the particular case.

3.4

The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate. If the insurer is known, a copy shall be sent directly to the insurer. Details of the claimant’s National Insurance number and date of birth should be supplied to the defendant’s insurer once the defendant has responded to the letter of claim and confirmed the identity of the insurer. This information should not be supplied in the letter of claim.

3.5

Sufficient information should be given in order to enable the defendant’s insurer/solicitor to commence investigations and at least put a broad valuation on the ‘risk’.

3.6

The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions from the letter of claim. If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.

3.7

The defendant(’s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon.

Documents

3.10

If the defendant denies liability, he should enclose with the letter of reply, documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings.

3.11

Attached at Annex B are specimen, but non-exhaustive, lists of documents likely to be material in different types of claim. Where the claimant’s investigation of the case is well advanced, the letter of claim could indicate which classes of documents are considered relevant for early disclosure. Alternatively these could be identified at a later stage.

3.12

Where the defendant admits primary liability, but alleges contributory negligence by the claimant, the defendant should give reasons supporting those allegations and disclose those documents from Annex B which are relevant to the issues in dispute. The claimant should respond to the allegations of contributory negligence before proceedings are issued.

Special damages

Experts

3.15

Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct.

3.16

Where a medical expert is to be instructed the claimant’s solicitor will organise access to relevant medical records – see specimen letter of instruction at Annex C.

3.17

Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert (which is not the same as a joint expert). It must be emphasised that if the Claimant nominates an expert in the original letter of claim, the defendant has 14 days to object to one or more of the named experts after expiration of the period of 21 days within which he has to reply to the letter of claim, as set out in paragraph 3.6.

3.18

If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably.

3.19

If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless:

(a) the first party agrees,

(b) the court so directs, or

3.20

Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party’s solicitors. The expert should send answers to the questions separately and directly to each party.

3.21

The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.

The most common type of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, defective product accidents and holiday accidents. Indeed, there are a multitude of types of accident and the term personal injury also incorporates medical and dental accidents (which lead to numerous medical and dental negligence claims every year) and conditions which are often classified as industrial disease cases. Industrial disease type cases include asbestosis and mesothelioma, chest diseases (e.g. emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermititus, and repetitive strain injury cases.

Where the accident was the fault of someone else, the injured party may be entitled to monetary compensation from the person whose negligent conduct caused the injury. At least in the United States this system is complex and controversial with critics calling for various forms of tort reform. Attorneys often represent clients on a “contigency basis,” in which the attorney does not charge for services until the case is resolved.

In England and Wales, under the limitation rules, where an individual is bringing a claim for compensation, court proceedings must be commenced within 3 years of the date of the accident, failing which the claimant will lose the right to bring their claim. However, if the injured party was under the age of 18 at the time of the accident, then they have up until the day prior to their 21st birthday to commence proceedings. A court has the discretion to extend or waive the limitation period if it is considered equitable to do so. Legal Aid for personal injury cases was largely abolished in the late 1990s and replaced with “no win, no fee” arrangements.

Structured Settlements in Personal Injury Cases

Often, the use of a structured settlement is desired by the injury victim to help protect them financially after an injury settlement.

Structured settlements provide injury victims with tax benefits and enable proper financial planning for future needs of the injury victim as a result of the injury.

Cause

The exact injury mechanism that causes whiplash injuries is unknown. A whiplash injury may be the result of impulsive stretching of the spine, mainly the ligament: anterior longitudinal ligament which is stretched or tears, as the head snaps forward and then back again causing a whiplash injury.

Whiplash may be caused by any motion similar to a rear-end collision in a motor vehicle, such as may take place on a roller coaster or other rides at an amusement park, sports injuries such as skiing accidents, other modes of transportation such as airplane travel, or from being hit, kicked or shaken. Shaken baby syndrome can result in a whiplash injury.

Symptoms

Symptoms reported by sufferers include: pain and aching to the neck and back, referred pain to the shoulders, sensory disturbance (such as pins and needles) to the arms & legs and headaches. Symptoms can appear directly after the injury, but often are not felt until days afterwards. Whiplash is usually confined to the spinal cord (neck to pubic bone), and the most common areas of the spinal cord affected by whiplash are the neck, and the mid-back (middle of the spine).

Diagnosis

Diagnosis occurs through a patient history, head and neck examination, X-rays to rule out bone fractures and may involve the use of medical imaging to determine if there are other injuries.

Consequences

The consequences of whiplash range from mild pain for a few days (which is the case for most people), to severe disability caused by restricted head movement or of the cervical spine, sometimes with persistent pain.

Protection

Protection efforts are hampered by lack of knowledge about the causes of whiplash injuries. The focus of preventive measures to date has been on the design of car seats, primarily through the introduction of headrestraints, often incorrectly called headrests. This approach is potentially problematic given the underlying assumption that purely mechanical factors cause whiplash injuries – an unproven theory. So far the injury reducing effects of head restraints appears to have been low, approximately 5-10%, because car seats have become stiffer in order to increase crash-worthiness of cars in high-speed rear-end collisions which in turn could increase the risk of whiplash injury in low-speed rear impact collisions. Improvements in the geometry of car seats through better design and energy absorption could offer additional benefits. Active devices move the body in a crash in order to shift the loads on the car seat.

Some car manufacturers have begun to implement various whiplash protection devices in their products in order to reduce the risk for and severity of injury, such as

• Mercedes-Benz A-Class Active Head Restraint (AHR),
• Saab (Responsible for the first active head restraint), Opel, Ford, Nissan, Subaru, and Peugeot – Active Head restraint (SAHR),
• Volvo and Jaguar – Whiplash Protection System/Whiplash Prevention System (WHIPS), and
• Toyota – Whiplash Injury Lessening (WIL).

Whether or not such devices offer a substantial benefit over vehicles without them remains controversial. In a test undertaken by the Swedish National Road Administration and an insurance company (Folksam), one test showed that a whiplash protection device was no guarantee against injury and that the degree of protection varies between vehicles both with and without whiplash protection devices. Yet The Journal of TRAUMA, Volume 51, No 5, November 2001 found that an Active Head Restraint helps reduce the risk of neck injuries by up to 75% in rear-end collisions.

The Act renders terms excluding or limiting liability ineffective or subject to reasonableness, depending on the nature of the obligation purported to be excluded and whether the party purporting to exclude or limit business liability, acting against a consumer.

It is normally used in conjunction with the Unfair Terms in Consumer Contracts Regulations 1999 (Statutory Instrument 1999 No. 2083), as well as the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.

Negligence. s2(1), liability for negligence occasioning death or personal injury cannot be excluded.

Insurers ‘pressure’ crash victims

Insurers are trying to force drivers to settle claims just hours after accidents, says a road safety charity.

Brake is concerned that people are being encouraged to take a pay-out before getting legal or medical advice.

Solicitor groups have called for tighter rules governing how companies treat so-called “third parties”.

But the insurance industry says such claimants should get compensation quickly without having to resort to lengthy and costly legal processes.

Pressure

When a driver is involved in an accident which is not their fault, they would expect to deal with the other person’s insurer.

But the national road safety charity, Brake, says it is concerned that insurance companies are pushing crash victims to settle quickly, before getting legal or medical advice.

Kimberley Harrison suffered severe facial injuries when another car crashed head-on with hers in March 2008.

She was surprised Рand angry Рto receive frequent calls from an agent of the other driver’s insurer the day after she left hospital.

“From the day I got home, the insurance company phoned me and were pressurising me not to take it any further Рnot to seek legal advice. I was really shocked.

“He was really forceful, like a bully Рreally trying to push me to close a deal,” she said.

Once she instructed lawyers, Kimberley said the insurance company in question, Quinn Direct, managed to get hold of her medical reports.

“They posed as someone working for my solicitor in order to obtain my medical records. I had no idea insurance companies would behave in that way.”

Whistleblower

Brake spokesperson Jane Horton said insurers should not make this kind of direct and often unsolicited contact.

“It’s as if having been made a victim once… you’re then being made a victim twice by then being approached when you’re not really equipped to deal with it,” she added.
Tommy Scott is a former claims handler for Quinn Direct. He told BBC Radio 4’s Money Box it was his job to “doorstep” third parties, often within hours of the accident.

“My sole job was to capture those clients Рto stop them getting independent legal advice, and try to settle direct in their living room,” he said.

Quinn Direct has denied Tommy Scott’s claims.

It said its “pro-active” approach is “based on paying fair compensation” quickly, and that third parties “appreciate” the service.

The company added that it “completely respects a claimant’s right to appoint a solicitor”.

Quinn Direct is investigating the claims about Kimberley Harrison’s medical reports.

Widespread

Personal injury lawyers say that the practice of “third party capture” is widespread across the industry, and that most big insurers have departments dedicated to it. Direct contact with the not-at-fault driver is standard practice.

The Association of British Insurers (ABI) insists its members contact injured third party drivers to help them get compensation quickly.

“It is the right thing for insurers to be doing, rather than requiring claimants to drag them through the courts,” said Justin Jacobs, assistant director of motor insurance at the ABI.

But the Motor Accident Solicitors’ Society and Brake are both calling for tighter regulation in this field.

The rules which govern how insurers must behave focus on insurance companies’ treatment of their policyholders; they say very little about how third party claimants should be treated.

The Financial Services Authority said it is taking such concerns seriously, and that it will report its findings about the need for further investigation later in the year.