glossary

The glossary of terms set out below is aimed at helping you understand some of the language used by those dealing with serious injury and compensation claims. The list is not exhaustive and the explanations often only provide the basic information. Should you have any further enquiry please do not hesitate in contacting one of the Clarke Willmott Catastrophic injury team.

Annuity: an annuity is a policy purchased with a lump sum which will provide an annual income either of a fixed sum or a sum that may grow in accordance with the rate of inflation. An annuity will normally last for the lifetime of the person who receives the income. The cost of purchasing an annuity will depend on the age of the person who is to receive the income and the amount of income required. Annuities were often used as part of a structured settlement.

Asset management: the investment of large sums of money, normally in stocks and shares or other interest bearing accounts for the purpose of either producing an income or growing the original capital sum or a mixture of both. Clarke Willmott’s investment management department specialise in this type of work and currently handle in excess of £80million in investments on behalf of clients.

Brachial plexus: a network of nerves arising from the base of the neck and which supply the shoulder, arm and hand. Damage to these nerves can lead to complete loss of use of the limb.

Brain injury: the brain is the highly developed mass of nervous tissue that forms the upper end of the central nervous system and sits in the skull. Injury to the brain can be caused through an accident or as a consequence of disease. The complexity of brain function means that the effect of an injury or illness can be very difficult to predict. Accidental injury includes such things as concussion or bruising to the brain, whereas a more serious injury might cause a fracture of the skull leading to physical damage to the underlying tissue.

Care package: a care package is one term used to describe the mix of case manager, occupational therapists, nurses and domestic carers employed to assist an injured client. Care packages are normally tailored to the specific needs of an injured person. The package might change according to changes in need and will normally be set up following a very full assessment of those needs by the case manager and the production of a care plan.

Care regime: see care package above.

Care plan: normally produced by the case manager although it can be undertaken by the care expert – the care plan is the written description of the proposed care package necessary to meet the individuals needs. Care plans are also produced sometimes by Social Services departments following a Community care assessment.

Case manager: in claims involving very serious injury your solicitor will often appoint a case manager to help coordinate the rehabilitation process (xlink). Case managers are most often occupational therapists who have specific experience in the type of injury in question. They will often be a member of a professional body such as the British Association of Brian Injury Case Managers (BABICM) or the Case Managers Society of UK (CMSUK).

Civil claim: civil claims arise from disputes between individuals or companies which are resolved by the Courts. For example somebody injured in a road accident may bring a claim for compensation against the individual who caused the accident. Such claims are dealt with by the Civil Courts as opposed to criminal matters such as drink driving, theft, assault etc which are dealt with by the, separate, criminal courts.

Common law duty: civil and criminal law is divided into that which arises from specific legislation such as the Road Traffic Act 1988 and law that has arisen from the decisions of the courts over time. This latter type is known as the common law. Under the common law certain people owe a duty to others. For example those who drive on the road owe a duty to other road users not to drive in a way that might cause injury to others. See also Negligence below.

Community care assessment: an assessment under Section 47 of the National Health Service and Community Care Act. In day to day terms this is known as a Community Care assessment. The assessment will normally be undertaken by the Social Services. The purpose of the assessment is to decide what services which the local authority could provide are needed by the person being assessed. This normally relates to the provision of care of one type or another and accommodation.

Conditional fee agreement: conditional fee agreements or ‘CFA’s’ are agreements between a solicitor and client relating to the payment of the solicitors costs. The agreement will normally provide that the solicitor will work without payment from the client unless the solicitor is successful in recovering compensation for the client. At this point the solicitor would normally recover his fees from the loosing party together with an additional ‘success fee’ for taking the risk of acting without payment in the first place. These agreements are often called ‘no win no fee’ agreements.

Contributory negligence: claims for compensation normally rely on the common law of negligence. For example a car driver owes a common law duty to other road users to drive carefully. In the event of an accident, however, often more than one person is at fault because they have been negligent. In those circumstances the Court can apportion blame between those involved. This is most often expressed as a percentage. For example if each party was equally to blame the apportionment of contributory negligence would be 50% to each party.

Coroner: Coroners are appointed by the Lord Chancellor’s department. Their main function is to hold inquests into violent, unnatural, sudden or unexpected deaths. Coroners are appointed to deal with specific parts of the country.

Court of Appeal: the Court of Appeal deals with appeals from decisions made by the High Court or County Court in both civil and criminal cases. The Court of Appeal normally sits in London and decisions made by it are binding on the High and County Courts. The Court of Appeal is itself bound by the decisions of the House of Lords.

Court of Protection: that part of the Court system responsible for dealing with the affairs of those people who cannot make decisions for themselves. See also Deputy and Receiver.

Criminal investigation: the investigation of criminal activity is conducted by the police. Criminal activity can relate to road use such as speeding or drink driving or to matters such as theft, assault, fraud etc. When the Police have concluded their investigation a decision on whether to charge somebody with a criminal offence will often be made by the Crown Prosecution Service or CPS having considered the evidence produced by the Police.

Damages: the term ‘damages’ is normally used to refer to compensation that a person is entitled to receive. It is often divided between ‘general’ damages for the injury suffered and ‘special’ damages’ which are the other financial losses and expenses that relate to the accident and injury.

Deputy: under the Mental Capacity Act 2005, which comes into full effect in October 2007, the role of Receiver will disappear and be replaced by role of Deputy. A deputy will be appointed by the Court of Protection to make decisions on behalf of somebody who cannot do so themselves by reason of injury or illness (often called a patient). A deputy can be appointed to make decisions on either the patients personal welfare or their property and affairs or both as is appropriate.

Direct payment: a Social Services department having completed a community care assessment may decide that rather than offer somebody care or accommodation that they will instead offer a direct payment of money to enable that person to source their own care / accommodation.

Fatal accident: an accident causing the death of one or more of those involved.

Funding: this term is normally used to refer to the method by which a solicitors costs are to be paid. For example funding by a conditional fee agreement or by legal expenses insurance.

Future loss: claims for damages are normally calculated in relation to those losses and expenses that occurred up to the time of the settlement of the claim or trial and those that will occur after that date. Those latter losses and expenses are referred to as the future loss. This may typically include claims for future loss of income and the cost of future care and accommodation.

Health and Safety Executive: this is the government body responsible for ensuring compliance with health and safety at work law and regulations. HSE inspectors have wide powers similar to Police officers to enter work premises and interview members of staff. They will often conduct an investigation following an accident at work and if they consider that there has been a breach of health and safety law can bring criminal charges against either the company or an individual. For certain types of business such as offices and shops this power is delegated to the Environmental Health Department of the local council. Environmental Health Inspectors perform a similar function.

House of Lords: the most senior court in the country whose decisions are binding on all other courts.

Immediate needs assessment: in a case of serious injury one of the first tasks your solicitor will perform is to obtain the agreement of the other parties insurance company to pay for an immediate needs assessment. This would normally be performed by an experienced occupational therapist. The purpose is to decide whether anything can be done immediately to aid or assist the injured party. This might be by the provision of additional nursing care or equipment or the adaptation of property.

Inflation: the periodic rise in prices. This is measured in a number of different ways. Commonly the retail price index which measures increase over a wide variety of goods and services or the average earnings index which is limited to increases in wages or the annual survey of hours and earnings which brakes down wage increases between various job types. These measures are important in calculating the likely cost of, for example, future nursing care.

Interim payments: in claims for compensation it is often possible to secure a payment of part of the award prior to the final settlement of the claim. These payments are generally called interim payments and can be important in providing day to day living expenses if the injured person cannot work or for covering the cost of medical treatment.

Inquest: an inquest is a type of court hearing the specific purpose of which is to decide who a deceased person was and how, where and when they came by their death. An inquest is presided over by a Coroner. The Coroner is specifically prevented from expressing any opinion relating to any potential civil or criminal liability for the death.

Legal expenses insurance: a policy of legal expenses insurance can provide for a solicitors fees in acting for you in certain circumstances. Many people have legal expenses insurance which has been provided, for example, together with a policy of motor or house insurance, or through a credit card or trades union or motoring organisation such as the AA or RAC. Such policies often cover the legal fees involved in bringing a claim for compensation in the event of a serious injury. You may have such a policy but be unaware of it. Your solicitor will guide and assist you in investigating whether you have this type of cover.

Loss of earnings: when somebody is injured they are often unable to work while they recover from their injuries. If the injury is serious they may never return to their pre accident employment or perhaps never be fit for any sort of paid work again. As a consequence of any of these situations the injured person will suffer a loss of earnings. The precise nature of the loss will depend on the circumstances. Loss of earning can be claimed for losses that have already occurred and those that may occur in the future. See also Future loss. Loss of earning form part of the calculation of compensation.

Lump sum: compensation is commonly paid by way of a single lump sum at the conclusion of the claim. From this sum money that has been paid in advance – interim payments are deducted. Alternatively parts of the compensation payment can be paid by smaller payments over agreed intervals such as monthly or quarterly. These are called periodic payments.

Medical expert: following serious injury the individual will be admitted to hospital under the care of a consultant relevant to the type of injury. On discharge from hospital medical care will often continue to be provided via the hospital outpatients department and / or the GP. The written records produced during treatment are important evidence of the nature and extent of an injury, however, in order to prove the existence and extent of an injury your solicitor will need to instruct an independent medical expert. This would not be the same person whom provided the treatment in hospital. In serious injury cases often more than one expert is instructed and they may well be asked to produce more than one report if recovery takes a long time. A medical expert will examine the injured person, consider the medical records and then produce a written report. The written report will stand as evidence in the claim. Getting the right medical experts is vitally important.

Monthly payments: see periodic payments.

Multiple fractures: people involved in high impact incidents such as that occur in road traffic accidents often suffer a number of broken bones over widespread parts of the body. When taken individually these might be unpleasant but not catastrophic or life threatening. When taken together they can be both of those. This type of injury is referred to as ‘multiple fractures’ and are dealt with by the Catastrophic injury team at Clarke Willmott.

Negligence: a breach of the common law duty of care will often be an act of negligence. For example if you drive on the road in a dangerous manner that will also be negligent. Such action will only give rise to a claim for damages if as a result of that negligence somebody is hurt. There must be a clear link between the negligent behaviour and the injury.

No win no fee agreements: see conditional fee agreements above.

Patient: somebody who has suffered an injury, often a brain injury, or illness, for example dementia, may not be capable of managing their own affairs. Such people are often referred to as patients. Their affairs are dealt with by the Court of Protection and by the appointment of Receivers and Deputies.

Periodic payments: the courts have power in making an award of compensation to direct that some of that award be paid not as a single lump sum but periodically at appropriate intervals. The interval might be monthly, quarterly of even annually. Such periodic payment orders are often made in respect of the cost of future care and will be designed to meet the cost of care for as long as it is required.

Pension claims: if an injured person is unable to work either permanently or over a limited period then there is a possibility that they might not only loose wages but also suffer a loss of pension entitlement. It will be necessary to look at the pension arrangements and contact the pension company to ascertain and calculate any potential loss.

Police investigation: see criminal investigation above.

Public funding of care: following a community care assessment the Social Services department may decide to provide care and accommodation themselves or to provide direct payments to assist the person buying their own care and accommodation. Both of these types of provsion are sometimes referred to as public funding of care.

Public guardianship office: the Public Guardianship office or PGO is the administrative branch of the Court of Protection. The PGO is responsible for supervising receivers and as from October 2007 deputies.

Receiver: when somebody has suffered injury (typically a brain injury) or illness to the extent that they are incapable of managing their affairs they are known as a ‘patient’. The affairs of a patient are managed by the Court of Protection. To assist in this the COP will appoint a Receiver who may be a relative of the patient or a professional person, commonly a solicitor. The Receiver has day to day power to make decisions on behalf of the patient. From October 2007 the position of Receiver will lapse (although existing receivers will continue to act as before) and their place will be taken by the new post of deputy.

Rehabilitation process: following a serious injury initial medical care will be provided by the hospital. Once discharged from hospital, however, the injured person will very often have an ongoing need for treatment or therapy to assist them in making the fullest recovery possible. This work is often done by occupational therapists, speech and language therapists, physiotherapists and neuro psychologists etc. This part of a persons treatment is often referred to as the rehabilitation process.

Rehabilitation protocol: following the start of a claim for compensation following a serious injury your solicitor will often arrange for an immediate needs assessment. This assessment will be performed under the rehabilitation protocol that most specialist solicitors and major insurance companies have agreed to. The protocol provides that the immediate needs assessment is intended only to provide assistance in the injured person rehabilitation and not to produce evidence that might be used in any subsequent court proceedings. Thus unless both parties agree otherwise the content of the immediate needs assessment cannot be used in court.

Statutory duty: in the same way that the common law can impose a duty a similar type of duty can be imposed by an Act of Parliament otherwise known as legislation. Thus, for example, to drive in excess of the prescribed speed limit would be a breach of this statutory duty. It would also potentially be a breach of the common law duty to drive carefully. Breaches of Statutory duty can of themselves provide an entitlement to compensation but only if the cause of the injury is linked to the breach of duty.

Statutory care provision: following a community care assessment a Social Services department may well decide that a person is in need of care and accommodation. In certain circumstances the Social Services department has an obligation imposed by law to provide a minimum level of care. This is often called the Statutory care provision.

Structured settlements: this is a type of award of compensation where the money is in part paid by way of a lump sum and in part by an annuity. Such settlements can only be achieved by agreement of the parties and not imposed by the courts. They are rare now due to the introduction of periodic payments.

Traumatic amputation: this phrase is normally used to describe the amputation of a limb that occurred during the course of an accident rather than a procedure carried out subsequently in hospital. Whilst the amputation of a limb is always serious, traumatic amputations tend to be much more so and are very often life threatening events.

Trust: on settlement of a claim for compensation the injured party will often receive a lump sum. If they are in receipt of means tested benefits then the receipt of the lump sum may well disqualify them from that benefit. In these circumstances benefit payment can often be protected by placing the lump sum in a trust.