HM Insights

Personal Injury Claims in the Winter

Ahead of an online Solicitor Chat on Personal Injury Claims in the Winter by The Law Society on Twitter we decided to catch up with Marina Harper from our Personal Injury team to get a Scottish Perspective on these type of claims. Marina is an experienced Personal Injury solicitor who specialises in fatal accident cases and serious injury. She has expertise and experience in dealing with all types of Personal Injury work arising from workplace accidents including occupational diseaseroad traffic accidentsaccidents in public places and criminal injuries compensation claims

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So Marina to start us off...

Do you notice a rise in personal injury claims during the winter months?

Absolutely.  Winter months are more hazardous for three reasons:-

  1. Low temperatures: can often lead to icy conditions.  The risk of tripping or slipping on ice is obvious but drivers must also be mindful of the impact this has on breaking distance:  braking can be twice as long if the road is wet and up to ten times longer on ice;
  2. Changing weather which includes heavy rain, high winds, fog and snow.  Getting around in these conditions whether on foot or by vehicle becomes more difficult with poor visibility, flooding and road closures; and
  3. Fewer hours of daylight – darkness falls much earlier in winter and so extra care is needed for all road users.  Hazards such as potholes and broken pavements are difficult to spot.  Cyclists must ensure they have front and red lights and pedestrians should wear reflective clothing to ensure they are seen. 

Talk us through the process of making a personal injury claim

Any claim for personal injury must be made within three years of the accident date.  This is known as the triennium.  If a claim is not made before this date it will time bar. 

Generally speaking, there are two parts to any personal injury claim:-

  1. Liability

Who is at fault for the accident?  The onus is on the Pursuer to prove their case.  If you hold someone responsible, you must have supporting evidence.  In road traffic accidents, this can often be established fairly easily and quickly but if there is a dispute between parties, investigations will be required.  This would include witness evidence, damage evidence and any video footage. 

In tripping cases, it can be difficult to establish the responsible party or that they were even negligent.  It is not enough to simply state the hazard was there.  Investigations are usually required to confirm the owner or company responsible for the road, pavement or area.  Thereafter, it must be established that they were aware of the hazard and that they failed to rectify it within a "reasonable" period of time.  Once liability is established, your case would move on to the second part. 

  1. Quantum

How much compensation are you seeking?  Personal injury claims are quantified using the opinion of a relevant, independent medical expert.  Once their views on the nature of your injury, the cause of your injury and the prognosis are obtained, your claim can be valued.  Any other losses incurred are usually substantiated with vouching i.e. loss of earnings with payslips. 

In Scotland, almost all claims for personal injury are pursued in terms of the Compulsory Pre Action Protocol (known as CPAP or 'the Protocol').  This involves several states but the main steps are:-

  1. The claim is formally intimated on the defender/responsible party or their insurers if they are known;
  2. The defender/insurers have 21 days to respond to this intimation;
  3. There is then a period of 3 months for any liability investigations to be carried out;
  4. Once liability is clear, medical evidence would be obtained.  Medical evidence is intimated to the defender/insurer and they must then respond within 5 weeks. 
  5. If no response is received within the 5 week period court proceedings would be raised. 

Court proceedings are also raised where liability is not accepted, a reasonable settlement cannot be agreed or if there are serious and complex injuries involved and the case is not capable of settling within the three year period; raising a court action protects the claim from the triennium/time bar. 

What information will your solicitor need you to provide if you need to make a personal injury claim?

The main details are:

  • the date of the accident;
  • the exact location of the accident;
  • your description of the accident and how it happened;
  • details of the responsible party;
  • if it is a road traffic accident then the other vehicle's registration;
  • any photographs taken and details of any witnesses. 

If an accident is caused by bad weather, what are your rights when it comes to making a personal injury claim?

Accidents causing injury happen every day.  It is only possible to make a claim if there has been negligence i.e. if a car slides on an icy road and hits your car.  It would be extremely difficult to establish the driver of the car had been negligent when it is clear there is nothing that he could have done to stop his car sliding.  The accident was caused by the ice and not any failure on the part of the other driver. 

Conversely, if you slipped and fell on an icy path which ought to have been gritted then a claim can be made against the party responsible for clearing the path and ensuring it was gritted. 

Bad weather certainly makes it more difficult to establish whether there was any fault and so a good solicitor is needed to consider the evidence. 

Who is responsible for making sure public areas are safe in icy conditions?

Usually responsibility lies with the owner of the area.  The local councils are responsible for a great deal of public walkways etc.  Companies and landlords allowing public access are responsible for their properties, paths, gardens, car parks etc.  However, responsibility for these tasks can often be contracted out to a maintenance company and so investigations may be required on the nature of the contract entered into. 

Thanks Marina. If you have been involved in an accident or been injured this winter get in touch with our specialist personal injury claims team by using the following contact methods: