I need some advice... anyone?

[panicstation]

I had a car accident 2.5 years ago. It left me with spinal damage, brain damage and some pretty complicated psychological issues.

So back at Xmas 2016 the other side, who admitted full fault within 1 day of the accident made an offer of £75k and my lawyer who didnt have full medical assessment yet - even though it was 18 months after the RTA, told me to turn it down.

The other side then make an offer of £100k in July this year. No one told me, not a call or an email, nothing. I kicked off about not knowing what was going on. A colleague of my lawyer picked it up to have a look and said "Oh Im really sorry I don't think you've been told about this." In July! We have lived in complete and utter poverty since the accident. Ive been told today that I'll need 6 months of stabilisation therapy and then 6 months of trauma therapy so I'll be a suicidal mess for another year...

Can I do anything about this lawyer? I cant chgange as its too far on? She wants me to talk to a barrister who she thinks will tell me to go with the settlement but how can she say that when she does know all of the facts as she doesnt have and hasnt organised the medical reports she said she was going to do in Jan 17.

Just dont know what to do!

[des8]

Re: I need some advice... anyone?

I'm tagging [MENTION=85500]Peridot[/MENTION], who will have good advice.

I personally would speak to this barrister, insist that medical reports are obtained and see if an interim payment can be arranged.

[panicstation]

Re: I need some advice... anyone?

Thank you for coming back to me. They have written up no particulars of claim and they havent valued the claim for me either - as in what settlement I should expect. She's telling me I dont have a brain injury but she hasnt sent me to a neurologist as a promised and my psychiatrist I see via the NHS is saying the issues are complex PTSD and organic brain injury from the RTA. My husband gave up a 30k a year job to look after me, nearly 3 years ago but it seems that hasnt been factored in or the loss of opportunity in me having to close my company (£100k in its first year) There is no defined prognosis so to me its starting to feel like they need to get me to accept an offer or they are going to look like complete idiots in court having not got any reports from experts to rely on....

[Amethyst]

Re: I need some advice... anyone?

Was your solicitor engaged through your insurance company ? If not, how did she come to be acting for you ?

[MENTION=85500]Peridot[/MENTION]

[panicstation]

Re: I need some advice... anyone?

Hi! Long story,,, the insurance company engaged a law firm that went bust 6 months into the claim. This new firm picked them up. I had to make a complaint last year as they instructed me to accept a £75k offer without any medical evidence at all, so the claim was passed to their technical director who made a load of promises and didn't deliver on any - just booking expert appointments, getting an interim payment etc. She then went on sick leave 2 months ago and we discovered this last week this person from their firm has been assigned to it. Her letter is very much well the 3 year time limit for court is up in May - the experts cant see you until July, yet we were told they'd book them in January 2017 but no one did....

[des8]

Re: I need some advice... anyone?

No need to panic yet, there is still 6 months to go.
However you could remind the solicitors that altho' the third party insurers have already indicated they accept liability and have made interim payments, the limitation act still applies.
Point out it is not certain, in the event of a late submission a section 33 application will be successful, and they could be facing a professional negligence claim

[Peridot]

Re: I need some advice... anyone?

Hi Panicstations,

It is so difficult dealing with all this with the injuries you have sustained and harder still when the solicitor keeps changing.

Sorry but I have a few questions too.

Have you had any medical reports prepared at all? Did the independent specialist Dr who saw you recommend any other reports or treatment be obtained?

As you probably know any damages you are entitled too are divided into separate 'heads of claim'
The general damages are assessed on the basis of the injuries you have suffered and therefore medical evidence is needed from independent experts to confirm the injuries and the likely time it will take to recover from the, whether any future treatment is recommended etc.
Special damages are any losses that you have incurred as a result of the injuries sustained in the accident so things such as loss of earnings and treatments costs etc. They can also include future losses, if for example you were unable to work in the same job and were unlikely to be able to do other work that pays similarly.

No doubt you are aware, but to be able to claim any damages the injuries have to be shown to have happened as a result of the accident. This doesn't mean that if you had a pre-existing condition that was affected by the accident, you wouldn't be able to claim damages, but the experts would have to decide what impact the accident had on the existing condition. Hence medical evidence is so important.

As far as other losses are concerned you need to be able to demonstrate the losses with receipts, or in the case of a business it would be necessary to provide a couple of years accounts to demonstrate any losses since the accident.

The limitation date is the 3rd anniversary of the accident. If you haven't settled your claim by then, a claim form will have to be issued protectively. This doesn't mean that settlement will be finalised by then, just that the claim will be ongoing until such time as final medical evidence is provided and schedules of losses are able to be finalised. The Court will assist in timetabling the case going forward.

You mention that you are due to see a barrister. I would see what they have to say. It will very much depend on the evidence that you have regarding your medical problems as a result of the accident, whether a settlement could be discussed at this stage. See what the barrister has to say and then have a review before making any decision.

It may be that the offer of £100,000 is appropriate but without the necessary medical evidence it would be difficult to make any such decision.

We're here if you need to pop back and will try and point you in the right direction.

[itsme18]

Re: I need some advice... anyone?

i a question on this, what if the stress un safe living by lack of repairs on wet room of disbaled caused effects on health whom already disbaled and caused heart attack and small stroke ended up in hosptail for 4 days 4 nights? still left block to health safety still causing another risk of this now its 5 mths left health at risk, would this be claim for perosnal injury or only housing disrepair and or breach of contract, by not carry out repairs this caused this added seroius ill health?

[Peridot]

Re: I need some advice... anyone?

Hi itsme18,

I assume this is separate from the claim being discussed by the original poster?

From the limited information I suspect your main problem would be showing that the disrepair actually caused the injuries you suffered. In the first instance this would appear to be a disrepair issue and possible breach of contract. I would suggest you seen some advice on this either from a specialist landlord and tenant lawyer or in the first instance speak to the CAB.

You need to keep a note of the issues, when they have been reported and actions taken with regard to the disrepair and also the health issues, when they started, GP appointments etc.

[panicstation]

Re: I need some advice... anyone?

Hi Peridot.

One lot of expert opinion was got Autumn 2016. There have been "delays" in organising the other experts needed so they have reports for my physical health - not my mental health. The guy I saw recommended about 6 other reports - none done as well as physio etc.

Today I had a barrister on the phone for an hour who told me to take the offer of £100k as I was at the peak and about to start treatment. There is still no detail of claim been put together, my losses from my earnings are about £40k so far but I wont be able to return to my job because of back injury. My partner also gave up his job to care for me but I don't know if that counts as a loss. No one knows how long I will be in this place for - no prognosis but chronic pain and ever increasing drugs to manage plus PTSD.

He said today that due to medical problems in the past the other side will look at whether I would have to stop work anyway - I wouldnt, and whether the PTSD would have come on anyway as Ive had depression in the past?

So am just as lost as I was before I spoke to him.

[Peridot]

Re: I need some advice... anyone?

Hi panicstations,

It does seem odd that they have not obtained the recommended medical reports. The barrister is correct to a certain degree. You will appreciate that anyone with a pre-existing condition may be affected in a different way. The accident may create an exacerbation to the condition or cause a reaction, that you may not ordinarily expect from the mechanism of the accident.

Usually, the only way to assess this fully would be with medical evidence. However, Defendants are always keen to settle matters and allow the Claimant to get on with things so regularly make offers to settle prior to all the medical evidence being available. Depending on the insurers dealing offers can be sensible. If there is a question over what physical or mental injuries were as a result of the accident, then a view would be taken and an offer put forward. It is not unusual and although the claimant takes a risk that the injuries and losses sustained may not all be covered by the offer made, there are also many occasions when the offer has been above what the value would likely be if the matter proceeded to trial. The first report will have provided some indication and prognosis and the barrister would have had the chance to consider the medical records too before advising you. The barrister is correct that the Defendant would be looking at what the likely prognosis for any pre-existing condition would be and whether this has been brought forward or exacerbated.

Of course the medical injuries you sustained as a result of the accident, directly correlate with the other losses eg loss of earnings. Without medical evidence supporting the period of exacerbation or recovery then any claim for losses flowing from the injury eg loss of earnings, can't be justified. Did the barrister discuss with you any issues that may reduce the value of the claim? Things such as, what if further medical evidence didn't support your claim or if certain issues you are experiencing are not as a result of the accident, and/or that the accident could only be responsible for a couple of months of exacerbation? It is also worth bearing in mind that any personal injury claim is very stressful and does not assist recovery. Research has been carried out that shows there is significant improvement in symptoms and recovery once a claim has been finalised.

There is also the issue if the offer has been made as a Part 36 offer. If this is the case and the matter went to trial and you didn't beat the current offer there would be cost consequences to you. If you have insurance cover for the claim either before the event or after the event insurance, then usually they would want to be made aware of the offer. They will also risk assess the continuation of the claim if the offer is not accepted.

Without seeing the medical evidence it is difficult to suggest what is best to do. It may be worth contacting another firm and asking whether they would consider looking at the medical evidence that you have and provide any suggestions. Unfortunately professionally it may be difficult for them to provide any guidance without you being signed up, but they may point you in the right direction. I would suggest contacting a lawyer who is a member of Association of Personal Injury Lawyers (APIL) http://www.apil.org.uk/ or has law society accreditation for personal injury http://solicitors.lawsociety.org.uk/ Explain the situation and see what they can advise. You do need to act quickly bearing in mind the limitation date is rapidly approaching. Make sure you tell any specialist that you speak to about limitation too.

Sorry this doesn't answer your queries but hopefully flags some of the issues that may be going on that may assist you in coming to a decision.

[panicstation]

Re: I need some advice... anyone?

Hi,

Things have all gone a bit pear shaped I think. After the phone call with the Barrister it was suggested I accept the offer they had made of £100k. My SO suggested it should be closer to £200k minimum. The legal executive put this forward and they came back with £150k and then she made a big thing how they had offered this without any medical evidence. Now she is saying that if I don't accept it well I may be liable for costs as the insurer may not want to pay any more based on what they know so I'll have to foot their costs myself. Still no medical reports so the insurer will only know what they tell them. I feel forced into a corner. Ive asked her what qualifications her and the barrister have to decide without medical evidence that I don't have a brain injury. She hasnt answered. Ive asked why she feels she can ignore what my psychiatrist (NHS) is saying that there is most likely an organic brain injury contributing to my mental health. Ive asked for the claim to be valued and provided all my loss of earnings which come to about £80k on their own. I really dont know what to do. I spoke to a solicitor who said they could look at it in the New Year but I would need to do a SAR for their files (they never correspond in any way) which would take 40 days and we'd be perilously close to being out of time (end of March).

Lost beyond belief and for someone who may (or may not) have a brain injury I cant think my way in anyway through this treacle

x

[Peridot]

Re: I need some advice... anyone?

Hi panicstation,

It is a really hard one, but there are always risks with any litigation. For example, further independent medical evidence may not support your claim and suggest that not all problems you are suffering from now, are as a direct result of the accident. I'm not suggesting this will be the case but it has been known. You also have the added issue that without the medical evidence it is difficult to quantify the injuries you have sustained, as a result of the accident. There is also no guarantee that an independent expert would necessarily agree with your treating Doctors opinion.

I think what the solicitor is getting at, with regard to the cost consequences of not accepting the offer currently on the table, is probably because the offer has been made as a Part 36 offer. These are offers made in writing and they have a timescale for acceptance.

Part 36 offers are intended to put pressure on a party to accept a settlement, so are generally pitched at a sensible level, although I appreciate that you do not have final medical evidence to enable this to be an evidence based decision.

In a nutshell the cost consequences of not accepting an offer that has been made as a Part 36 would be as follows:-
a) If the offer is rejected but you then fail to beat the offer at a later trial or settlement, you would be responsible for the other party’s costs from the date when you could have accepted the offer (i.e. after the expiry of the 21 days) up until settlement of the claim. This means that your compensation is likely to be affected as you would be responsible for paying some or all of the legal costs.
b) However, if you beat the offer then the other side will be responsible for all of your costs.

If you have insurance cover, then the insurers will expect to be informed of any offers made and the likely cost consequences that will be incurred in the event you did not 'beat' an offer made. In addition they would expect to receive confirmation from your lawyer and/or barrister with their views on the likelihood of you beating the offer made. If it is a borderline situation then the insurers may consider withdrawing cover, which could then mean you would be responsible for your own solicitors costs in addition to the Defendant's costs if you don't full the lawyers advice.

It is a really tough decision to have to make, particularly when you are unsure of the exact effects on you of the accident. There has been considerable research into the effect of litigation on recovery from injuries which has shown that involvement in litigation does considerably slow down recovery, due in part to the amount of stress involved in dealing with the claim itself, rather than allowing the focus to be on the recovery.

Is your lawyer a member of APIL (Association of Personal Injury Lawyers) or the Law Society Personal Injury Accreditation scheme? I'm not suggesting that just because they are they will be the best, but they would have a level of experience and knowledge that may be above a lawyer who deals with these sorts of claims infrequently. You may find further information here that may help: http://www.apil.org.uk/

The offer that has been made is considerable, you do need to think about the barrister's advice, which seems to be that the offer is worth serious consideration, bearing in mind the costs consequences of not accepting. Without the benefit of seeing any medical records or reports, it would be difficult for anyone to quantify the claim I'm afraid, so it is not surprising that another solicitor would wish to see your full file to assess whether they would be willing to take the claim on. This does cause further delay and you are very close to limitation, which any other solicitor who considers your claim must be aware of.

If you decide to continue with the claim and find another solicitor willing to take the claim on, you may well have to fund the Court fee to issue the claim yourself to protect your claim being statute barred. Court fees vary depending on the potential size of the claim and can be found here: https://formfinder.hmctsformfinder.j...k/ex50-eng.pdf
Page 5 shows the fees which for your claim would be 5% of the value of your claim provided the value is below £200,000. If above this sum then the fee to issue the claim is £10,000.

I'm sorry I can't give you any more pointers, the decision has to be yours I'm afraid. Litigation is always risky, decisions may not always go in your favour and the consequences of pursuing claims can far outweight the benefits sometimes, particularly when dealing with unknowns, but having the associated cost consequences attached.