Every month, lawyers from Harper Macleod - the biggest Scottish law firm with an office in Shetland - share their insights on issues which can affect local businesses and individuals.
In this article, Harper Macleod Partners Elaine Russell and Julie Doncaster, set out some of the most some important considerations for those who have suffered a personal injury.
No-one ever chooses to be injured but it is important that when someone is involved in an accident or has suffered negligence, they get all the support that they need, including legal advice. The priority has to be for an injured person and their family to get access to local support and medical care and for rehabilitation to be put in place for them as soon as possible.
Not all law firms approach personal injury claims in the same way. Some may appear to be on your side, only to sweep in and take a large percentage of the award to meet their fees. They may then simply pass the remainder of the award proceeds to you without any advice as to the impact this will have on means tested benefits, family life or your tax position.
How do you know if you have a case?
There are many potential circumstances where there may be a claim and it's not always immediately clear if there is a viable case. In those situations, the best thing to do is to have a free chat with someone like us who can do a bit of investigating and give you open and honest advice.
The most common personal injury cases involve: road traffic collisions; work related illness or accident; asbestos related and industrial diseases; head, spinal and other serious injuries; marine and air- related claims; fatal accidents; criminal injuries compensation accidents; and medical negligence.
Where you have suffered a physical disability, it can be important to know that there is a local law firm or the option that the local solicitor can make a home visit to you without the need to travel long distances to the mainland. Cases can go on for many years and having to make frequent trips before any award has been received can be difficult and expensive.
Ensuring you take expert advice can mean the difference between having your case heard in England, where a much lower award may be set, than in Scotland where levels can be three times higher. In employer related claims (particularly asbestos cases) it is often possible to argue that a person has worked in both countries and attribute the injury to time in Scotland allowing them to claim a higher amount. Good expert advice will provide many other effective ways to maximise claims.
Protection of the Award
The law firm you pick should have a strong grounding in not only the litigation side, but also the legal and practical elements that you will face in the lead up to the payment and then once the award has been received. One of the key issues to consider as you receive your first interim award is setting up a Personal Injury Trust.
A Personal Injury Trust is particularly effective if you are in receipt of means-tested benefits.
If someone was to receive compensation of £6000 - £16000 then their means-tested benefits could be reduced. Should that amount be above £16000 then their benefits could be stopped altogether. This amount would also include any savings they may have.
Once the funds are held in trust, they will not form part of an assessment.
Importantly, on receipt of the first interim payment, there will be 52 weeks to place the funds in trust or means tested benefits will be effected.
Financial and benefits advice
Once the personal injury trust has been set up, it will then be important to consider how best to deal with the funds and your legal adviser should be on hand to recommend a trusted financial adviser, liaise with your local bank branch and they should also be able to deal with any required communications with the benefits agencies.
Even if you don't receive means-tested benefits, a trust can be a good idea. The appointed trustees can help manage the funds in a controlled way and should any means-tested benefits be required down the line, then provisions are already in place.
For anyone who receives an award, it is important to consider if Guardians will need extra powers to set up a trust or if it would be best to set up a Power of Attorney to deal with diminishing capacity issues. Finally, as a large sum of money could be involved, it is of course essential to make sure the injured party has an up to date Will in place.
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This article originally appeared in the Shetland Times