How likely am I to win a work injury compensation claim??Updated: October 9, 2020
The person or company you work for owes you a legal ‘duty of care’. If you were injured because of failure in your employer's duty of care, then you may be technically eligible to make a claim for financial compensation. But how likely are you to win your claim?
Duty of care
Employers are legally obliged to protect their employees from harm by controlling risk to injury or health in the workplace. This is known as an employer’s ‘duty of care’.
If an employer failed in their duty of care and you were injured as a result, then you should be entitled to claim compensation.
Date of injury
In order to make a successful claim, an accident or subsequent diagnosis of an injury must have taken place within the last three years. The date of the injury or diagnosis occurring is known as the ‘date of knowledge’, and you must start a claim before the 'date of limitation', three years after the date of knowledge.
Could I delay my claim until the limitation date?
Whilst it’s technically possible to delay starting your compensation claim until the last minute, it is advisable to start your claim as soon as possible. The limitation date refers to the last day that you can file a claim at court. As building a case takes time (months), there is a good chance you could overshoot the limitation date while your solicitor is collating the evidence.
Most claims are settled out of court through negotiations between your solicitor and your employer’s liability insurer. The threat of court action can be a useful ‘bargaining chip’ in the negotiation process. If the limitation date is looming, this can undermine a claimant’s case and reduce the chances of success, as the limitation date is the final day on which a claim can be formally filed with the courts.
If you start your claim close to the limitation date, you will be unlikely to find a solicitor who will take your case on a No Win, No Fee basis, as it can take time to gather information such as medical evidence and witness statements, which are a crucial part of building a strong case.
As a result, some solicitors will not take on your case if it has a year or less left to run before the limitation date. Others are a little more flexible and may take on your case with just six months to go, but the best advice is to seek legal representation as soon as you are able to after the accident or injury occurs in order to get the best possible outcome.
What if the injury occurred more than three years ago?
In most circumstances, the limitation date for a compensation claim is three years after you became aware of your injury or illness (if you were over 18 at the time). If the diagnosis is made gradually over time, the date of knowledge would be the date on which the full extent of the illness or injury became known.
In the case of fatal injuries, a family member would be able to start a claim within three years of a person’s death, provided the date of death was within the limitation period of the initial injury.
What if I was injured when I was under 18?
If you are injured before the age of 18, the three-year limitation will only come into force once you reach your 18th birthday. You will have until your 21st birthday to submit your claim. You can still submit a compensation claim if you are under 18, but the claim will need to be made with the help of a 'litigation friend' (an adult acting on your behalf).
In order to make a successful personal injury claim, your solicitor will use medical evidence and other information to prove that the work accident caused your injuries. This is known as ‘causation’.
What if I had a pre-existing injury that was made worse by an accident?
If you have an accident at work which exacerbates an existing condition that you have, it is still possible to make a claim for compensation. In these circumstances, you will need a medical report to help determine the extent to which your injuries were made worse by the accident.
What if my colleague caused the accident?
Your employer is still likely to be held responsible for an accident resulting from the actions or inactions of another employee. The established legal principle of ‘vicarious liability’ means that even if the accident is caused by a co-worker, the employer is usually still liable. Vicarious
liability would still apply even if that co-worker was breaking the rules or behaving recklessly.
What if I was working from home?
Your employer still owes the same duty of care to homeworkers - although the lines of responsibility can often be blurred. Your employer should have carried out a full risk assessment of your home working environment, Even if you have an accident at home and an assessment had been carried out, it is still usually possible to pursue a claim.
I am eligible to claim but how likely am I to win?
Before a solicitor takes a case on, they will carry out a risk assessment of the probability of success. If your case is taken on there is usually a very good chance of winning your case.
Once you have instructed a solicitor, a letter of claim will be sent to your employer. Your employer may accept liability immediately and negotiation over the level of damages will follow. How soon the claim is resolved will depend on whether you choose to accept your employer's settlement offer or negotiate further.
If the employer denies liability in full or in part, the solicitor will continue to build your case and press the employer further with any evidence or witness statements,
Should the employer still deny liability, the case could be filed at court. Many employers insurance companies will offer to settle at this point as they won’t want to incur legal expenses if you are likely to win. Most claims do not go to court.
If the defendant still denies liability, a case can take months to resolve through the court process. If the case is particularly complex or the injuries are very serious, it can take years to get to the point of settlement. However, in complex cases, it will usually be possible to secure interim advance compensation payments on behalf of the claimant.
If you have been injured at work in the last 3 years, you may be able to claim financial compensation.
Find out more about making a work accident claim:
- Do you qualify?
- How much compensation could you get?
- How does No Win, No Fee work?