Understanding Personal Injury and Clinical Negligence Terminology

Making a personal injury or medical negligence claim can be a confusing process.

This blog is aimed at serving you with a quick access resource for considering the personal injury and clinical negligence terminology and to assist you in navigating your claim successfully.

At Experts Courts Report, we can provide you with the right expert to help you with your case.

N/B: These are just simple explanations and not legal advice.

Clinical Negligence

Accident Report

It refers to any formal document reporting an incident, including anything from the staff member of a hospital or an authority figure like a police officer.

These reports are often scrutinised by the court to establish the facts and can be beneficial to any expert instructed to provide independent evidence in relation to a claim.

After the Event Insurance

This type of insurance called after the event insurance is meant to support Claimants who sign a Conditional Fee Agreement (CFA) with their solicitor which is also known as a ‘no win, no fee’ agreement. In these circumstances, a claimant is entitled to payment if the case succeeds but if unsuccessful, a Claimant would be liable for their own and the other side’s legal costs. This insurance covers these liabilities in the event a claim is unsuccessful.

Balance of Probabilities

Is the civil standard of proof upon which the court has to be satisfied to establish the truth of the facts. To say the facts are proven means that it is ‘probable’, ie more likely than not that the said events have occurred.

This differs from the criminal burden of proof known as ‘beyond reasonable doubt’.

Claimant

It is the person bringing a claim for compensation following clinical negligence or personal injury in an accident. The other party to the suit is the defendant.

An expert may be instructed by the Claimant, the Defendant or, as is often the case, jointly instructed to provide independent evidence in relation to a claim.

Conference

It is the meeting between the case handler, experts, counsel, and the solicitor. The agenda is usually to evaluate issues about the evidence and to determine whether the action or claim is defensible.

Compensation

Compensation is the general term for damages which is the payment, usually monetary, awarded in recognition of loss, suffering or injury. The law aims to put you in the position you were, so far as is possible, before the occurrence of the loss. Damages are classified into two categories; general damages and special damages. While general damages include the non-financial effects of an accident eg pain, suffering and the loss of ability to complete activities, special damages include the financial effects such as lost earnings, medical expenses, and care.

A report from an expert in the field of expertise that your loss or injury relates to and the likely treatment, including costs of the same, may provide great assistance.

Contributory Negligence

Is the term used when it is suggested by the defendant that the claimant’s behaviour contributed to the loss or damage through their own negligence, the defendant may rely upon this as a defence. Your claim will ONLY succeed if you can prove you were injured by an individual who didn’t take reasonable care for your health or safety. If the defendant proves that you were partially to blame for the incident, your contribution is evaluated and your damages reduced accordingly.

Costs (Also used to mean Fees or Legal costs)

These phrases are used interchangeably to refer to the final expenses incurred by a solicitor when you bring a claim against an organisation or individual, called the defendant or third party. The costs are constituted of 3 elements:

Disbursements – Charges such as medical reports, barrister fees, court fees

Fees – What you will pay the solicitor and their staff on an hourly rate.

VAT – If you are successful, it is generally accepted that the defendant will be liable to pay your costs. If your claim is unsuccessful, you will be responsible for your own solicitor’s costs and the defendant’s costs. There may be some limited exceptions to this

Court Proceedings

If settlement negotiations have been unsuccessful or liability remains disputed then court proceedings are issued. At the start of proceedings, you will submit a Claim Form in the local county court setting out the Particulars of Claim. It signifies the formal outset of a claim. The control and timetable of the case passes into the court’s hands.

To support the evidence for your injury or loss, you may submit an expert medical report at the outset.

Damages

See Compensation

Defendant

The defendant is the organisation or individual against whom a compensation claim is lodged.

Duty of Care

See negligence below

Expert Witness

An expert witness is instructed to provide evidence to the court in relation to the facts of a case. The expert has knowledge or skill that is specialised.in a particular field and can provide an impartial opinion as to the dispute.

Index Event

Is the event leading to the claim, this is the accident or event that caused the loss.

Letter of Claim

Is the initial letter, prior to proceedings, sent to the Defendant by the Claimant setting out the basis on which the claim is being made.

Liability

The basis upon which you are legally responsible for something eg. An accident

Limitation Period

Is the time by which you must have made a claim following the index event/accident. It is usually three years but there are some limited exceptions.

Litigation

The term used for the legal proceedings

Mediation

Mediation is the term used to enter into communication and negotiation with the defendant prior to issuing proceedings. It is often an effective way to settle compensation claims saving time and costs.

You may choose to instruct an expert to prepare a report at this stage to assist with the process, providing independent evidence in relation to any loss or injury.

Negligence

There are four elements to be satisfied for an action in negligence to succeed

Duty of Care – A duty of care is a legal obligation to demonstrate a standard of reasonable care in acting towards others, avoiding behaviours that could reasonably be foreseen to cause harm.

Breach (of the duty of care) – A claimant must demonstrate to the court that the defendant owed them a duty of care and that the defendant was in breach of that duty.

Damages and Loss – That the breach of the duty of care has caused the harm

Remoteness – That the harm is not too remote a consequence of the breach – ie was it foreseeable

Part 36 Offer

Part 36 is the part of the Civil Procedure Rules and is an offer made to settle the claim early without the matter having to go to court.

Particulars of Claim

This form is lodged at the outset of the legal proceedings to set out the circumstances of the index event, any allegations made and any evidence relied upon.

Small Claims

For claims where the total compensation will not exceed £1,000

Third-Party

This could be another individual or group involved in the incident besides the two primary parties eg. a driver of another vehicle in a road traffic accident

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