Product liability is the area of legislation which imposes a duty on any one who produces a product (for example, manufacturers, suppliers, distributers and retailers). These producers have a duty to ensure that the products they distribute to the public are fit for purpose – i.e. they will not cause anyone damage or injury.

The statutory legislation which governs the area is the Consumer Protection Act 1987. Under this Act the public has a legal right to pursue a claim for compensation if they have been injured by a product which was not fit for its intended use.

Who Qualifies Under the Act?

It is possible to sue the manufacturer of a defective product, even if you were not the one who purchased the product from the retailer/manufacturer. Providing you were in a group of ‘foreseeable people’ who could possibly be injured by the defective product, you will be able to claim your compensation.

Three Points to Remember Before Making a Claim

If you have decided that you want to pursue a compensation claim in relation to a defective product, the first thing you will need to prove is that the harm/injury that you have suffered was caused by the defective product in question. Additionally, you will need to initiate this claim within 3 years of having suffered the harm/injury. Finally, it is important to keep all receipts and additional evidence, particularly if you have witnesses that are relevant to your case.

Types of Claim

Product liability spans a huge array of defective products. Interestingly, some of the most common types of defective product claim are in relation to skin blemishes caused by defective cosmetic products, skin burns from defective hairstyling equipment (e.g. straighteners), and experiencing electrical shocks from defective electrical products.

If you have been injured by a defective product, and you feel like you may have a claim for compensation, it is worth seeking professional advice from specialist personal injury lawyers to see if you have a claim which is worth pursuing.

Why Pursue a Defective Product Claim?

It is important that you pursue a valid claim if you have been injured by a defective product. The main reason for doing this is that if your claim is valid, and you are successful, you will be compensated for all your medical treatment, and in many cases, for your lost wages. You will also be compensated for any chronic suffering and any loss to the quality of your life.

There is also another important reason why you should pursue a genuine claim relating to a defective product. If you have been injured by a particular product, it is more than likely that other people who have bought the product may also risk injury. You therefore have a moral duty to ensure that the manufacturer/retailer acts in order to prevent the defective product from injuring anybody else. If you do not pursue your claim, and others don’t either, it is more likely that a greater number of people will suffer injury or harm from a particular defective product.

It is worth noting that pursuing a claim can in some circumstances be free – if you go to the right claims solicitor. Many work on a no win, no fee basis, and so claimants will not have to pay any legal costs unless their case is successfully fought.

In the not too distant future we can more than likely expect to see the abolition of Legal Aid and the emergence of BTE or Before the Event insurance cover where accident claims are concerned.

Most personal injury claims are in fact dealt with by no win no fee arrangements between the claimant and hos or her lawyer, but for medical negligence claims, where it is very difficult to assess liability at an early stage, or for highly complex claims, where solicitors are not willing to take the risk of no win no fee at the outset, legal aid still is important.

Currently, Legal Aid enables members of the public to fund claims for compensation through clinical negligence or personal injury which would otherwise prove impossible, but the costs are expensive and there may be a political agenda in that medical negligence claims are costing the NHS billions per year in compensation. The Government, although it would never admit it, may be seeking to lessen the number of claims and therefore lessen the cost to the NHS.

The replacement of Legal Aid with (Before The Event Insurance) BTE insurance is a proposal which most ministers prefer and the funding of legal costs via this method is an alternative which is also backed by Jonathan Djanogly, the Justice Minister. Before the event insurance is a type of insurance policy to protect against an event, and is the same type of insurance for example you would get to insure a car. After the event insurance in contrast is used for protecting against a costs order, after an accident or occurrence has already happened and where legal proceedings are contemplated.

Mr. Djanogly has claimed that the government intends to promote the funding of legal expenses incurred through accident claims with BTE insurance and he believes that, when this proposal comes into play, we will see a considerable drop in the costs of insurance cover.

However, not everyone is in agreement with Mr. Djanogly or in favour of the proposal and the shadow minister, Andrew Slaughter, is concerned that, not only will the proposal prevent many deserving and honest claimants from getting the justice they are entitled to, but will also act as a ‘get rich, quick’ scheme for insurance companies.

With annual BTE insurance premiums estimated to be somewhere in the region of £150.00 and insurance companies looking to gain £1 profit for every £2 made in BTE insurance premium payments this proposal is going to prove big business for many insurers.

The idea of replacing Legal Aid with BTE insurance has been churning around in the governmental pipeline since the 1990s and it seems that the re-emergence of this idea may have been prompted by Germany’s thriving insurance market.

With just under 50% of Germans being covered by legal expenses insurance policies could it be that the UK is soon to follow Germany’s lead?

A consumer survey carried out in 2010 asked 2000 consumers if they would consider paying a £75 annual insurance premium as a safeguard in covering unforeseen legal costs. Over two thirds of the consumers interviewed said they wouldn’t consider paying the premium and just 14% could see the value of BTE insurance cover.

These results don’t really bode well for the government’s proposal and it has to be said that, if Before the Event insurance is such a cut and dried, sure fire way of ensuring justice for those who could otherwise not afford to make a claim would it not have been brought into play some years back?

It would seem that the government have a lot of work to do before bringing about the changes to the way in which accident claims are dealt with and will need to convince the general public that parting with their cash in exchange for insurance cover is a beneficial move.

They will also have their work cut out convincing the majority that insurance companies are honest and will stick to their word rather than worming their way out of paying the claimant’s legal fees.

In theory this proposal may make financial sense but something that perhaps the government haven’t considered when opting to follow Germany’s lead is the difference between UK legal costs and Germany’s legal costs.

Legal costs in Germany are fixed whereas costs in the UK are uncertain and vary from case to case meaning that neither the claimant nor the insurer have a clear cut idea of what to expect when a claim for compensation is put in place.

What is the personal injury protocol?

When claiming for damages in relation to personal injury there are certain steps that must be taken before the case comes to court. This enables both parties to have a firm grasp of the case against them at an early stage. With this knowledge there is much more chance of the claim settling before it reaches court. This means both sides will save time and money as well as the court’s time. If the case does get to court both side are better equipped to argue their case and no time should be wasted in seeking adjournments for further disclosure. It will also give the court a good idea of how much time to set aside for the case to be heard.

The court looks at pre-action protocols as the right way to act before cases reach court. Where a party has not acted in accordance with a protocol the court may impose sanctions on them, particularly in relation to costs.

The personal injury pre-action protocol is designed for simple low cost claims resulting from road-traffic collisions, slips and accidents at work. A similarly spirited approach would equally be expected in a more complex case with a higher value claim.

Initial correspondence

The claimant must send two copies on the letter setting out his claim to the defendant. One copy is theirs to keep the other should be passed on to their insurer. The letter should contain enough information to make out a cause of action, in particular it should include:

• A clear and concise summary of the facts;

• The nature and severity of any injuries suffered;

• Details of any financial losses incurred;

• The name and reference number of the hospital where the claimant was treated;

• Whether or not the claimant has entered into a conditional fee agreement; and

• A request for the details of any insurer.

The defendant should reply to the letter of claim within 21 days of it being posted, in his or her reply he should include:

Details of his or her insurer; and

• Anything omitted from the letter of claim which is relevant;

If the claimant has not heard anything after the 21-day period he or she may issue proceedings with the court.

Duties of the insurer

The insurer has up to 3 months after the claim has been acknowledged to investigate the circumstances surrounding it and reply, letting the claimant know whether they admit or deny liability.

Documents in support of defence

Upon a denial of liability, the defendant should include with the letter of reply any documents which are relevant in showing why he says that he is not liable. A list of documents, which might be useful in specific cases can be found in Annex B of the protocol.

If experts are required

Experts can be very expensive it is best to avoid using them if at all possible. However, if one is truly necessary then costs should be kept to a minimum by trying to agree on one expert that can be used by both parties.

According to the protocol the party wishing to instruct an expert should first send a list of suitable experts to the other side. The other party should reply within 14 days with any objections to the experts contained in the list. If there is an expert which both sides are happy with then they should be jointly instructed to write a report and to answer any written questions sent from either party.

If a party receives a list of experts but does wish to instruct any of them they may instruct their own chosen expert as long as they are acting reasonably. An instance of reasonably objecting to an expert is if they were an employee or relative of the other party.

If an expert has not been objected to, the other party may only call an expert in rebuttal of that expert if:

a)      It has been agreed;

b)      It has been directed by the court; or

c)      The initial expert’s report has been amended and the original has not been disclosed.

 Other provisions

Both parties are asked to consider whether the claimant would benefit from early rehabilitative treatment.

Upon a partial or full admission of liability the disclosure of any medical reports should be made. The parties should then consider whether settlement can be achieved.

The making of offers intended on settling the claim should be considered and if made should be accompanied by evidence to assist.

The pre-action protocol promotes a cards-on-the-table approach to litigation, which is aimed at saving the money and time of the parties and the courts. Compliance with the protocol is advisable and a failure to do so will, at the very least, show you in a bad light to the court.

Two of the most popular accident-related claims that people make, and often need to know information about, are traffic accidents and accidents which occur at work. Accident claims can also be referred to as personal injury claims. Do remember that if you are making a claim for physical injury, you may also be able to make a claim for damaged property if this was a related result of the accident.

Traffic Accidents

Although many people attempt to find out information on what to do several days after they have had an accident, fewer actually know/search for information on what to do immediately after the accident has occurred. The first step is to obtain as much information as you can about the other driver involved. This should include their full name, their phone number, their address, their insurance information, the make and model of their car, and as much information from the scene of the accident as you can. It is also worth noting down any statements they make to you, particularly if they are assuming responsibility for the accident.

If you are not injured, take photos of the accident and surrounding location, and make sure you note down the details of any witnesses that saw the accident unfold. Make sure you also keep a record of any police officers that deal with the accident, and tell both them and the other driver the injuries you have suffered.

The reason it is important to note down as much information as you can at the time of the accident is that it will bolster your legal claim afterwards if you have as much detail and evidence as possible.

Ensure that you notify the police within 24 hours of the accident happening. Additionally, make sure you notify your insurance company of the accident as soon as possible. Failure to inform them within a reasonable time may mean they refuse you insurance.

Although the amount of compensation you receive will vary from case-to-case, should you pursue a claim, there are general guidelines for the type of injury suffered. For example, mild whiplash can receive up to £4575, whilst hip or pelvis injuries could receive up to £76350 in compensation.

Accidents at Work

These types of accidents cover a wide variety of situations. Accidents could involve handling machinery, falling off ladders, driving company vehicles, or even occur in office environment. Every employer has a certain degree of responsibility to ensure its employees are safe at work. If you have had an accident at work that was due to your employer’s lack of sufficient health and safety regulations, you may be entitled to compensation. Any injury that occurs at work, even if it is a minor injury, needs to be documented in the employer’s “accident book”. All employers are required to keep and maintain this book.

Asbestos related injuries can receive, as a general guideline, up to £74300. Please note the figures used in this article are only guidelines.

How Do I Know if I have a Claim?

If you are unsure about whether you have a personal injury claim or a claim for property damage, your next step could be seeking impartial advice from your local Citizens Advice Bureau. They will be able to weigh up the facts of your case and tell you if you have a potential claim. They will also be able to tell you whether you need to seek legal advice. They have the details of solicitors who specialise in accident claims and so will be able to recommend trustworthy solicitors should you decide you need legal advice/representation.

Please note that you have a maximum of 3 years from the date of the accident to pursue your claim. Although this is the maximum, it is advisable to pursue your claim without delay.

Solicitors Dealing with Accident Claims

Many solicitors now offer to work on a “no win no fee” basis. This often means you receive 100% of your compensation. It is advisable to read the small print of any agreement you make with your legal representation, as it may state that they require money upfront. Some solicitors do not charge you a fee at all, instead seeking payment from the other person’s insurance company.

What is RSI?

Repetitive Strain Injury (RSI) or Work Related Upper Limb Disorder (WRULD) is an injury to the muscles, nerves or tendons caused by the performance of repetitive tasks or sustained and awkward bodily positions. It usually affects the upper part of the body, such as the hands, writs, arms, shoulders and the neck. The most commonly reported symptoms are: pain, swelling, tenderness, numbness, muscle weakness and loss of movement. Psychological injury such as stress and fatigue are also common.

There are two types of RSI; Type 1 RSI is where a doctor can diagnose the injury through swelling or inflammation of the muscles or tendons (such as carpal tunnel syndrome) and Type 2 RSI where the body shows no obvious symptoms.

What Causes RSI?

RSI is commonly associated with a lifestyle where parts of the body are strained or make little movement such as sitting in front of a computer, carrying heavy items, driving, reading and sleeping or sitting awkwardly. Catalysts may include working in cold temperatures and with equipment that vibrates.

Most RSI is caused at work and results in claims against employers particularly as the modern work place environment requires employees to carry out repetitive tasks like spending the day in front of a computer or assembly work. This repetitive action can lead to painful injuries and it is the responsibility of the employer to take positive action to prevent such injury.

RSI at Work

Proving that RSI is a result of work is not always easy, particularly as many people have computer access at home and conditions such as carpal tunnel syndrome can also be caused by pregnancy, obesity, arthritis or menopause.

However, employers will be deemed as negligent if over a period of time:

• An employee develops RSI directly through the work they carry out in the course of their employment; and
• The employer ought to have known that there was a risk of injury; and
• The employer did not take reasonable steps to prevent that injury.

Accordingly, employers should do whatever they can to prevent RSI. They have a duty to conduct risk assessments and implement protective and preventive measures. So when typing, an employee’s seat, keyboard, mouse and screen should be adjustable so that they can be correctly positioned to avoid any strain and the employee should be permitted to take regular breaks to relax and loosen the muscles. Wrist rests should be made available if requested.

An employer should also provide warnings about the potential risks of RSI and encourage employees to notify them of the onset of RSI immediately. It is vital for the both parties that an employee notifies the employer straight away because it gives the employer the opportunity to take positive action, whilst if the employer fails to take reasonable steps it helps the employee to prove that the employer could reasonably have foreseen the risks of any injury that is sustained.

Compensation for RSI

The amount of compensation that can be claimed for RSI varies and is dependent upon the part of the body that has been injured, what long term damage has been caused, the treatment required and the required rehabilitation period. RSI claims can be anything from £1,000 upwards.

Proving RSI, particularly Type 2 RSI, is very difficult and in order to determine whether compensation is due and the amount, the advice of a medical professional is taken. Also, an investigation is likely to be carried out to understand the employee’s posture at work, the length of time it takes to complete tasks, rest periods, the pressures that are placed on the employee to meet targets, what equipment is used and whether there are any other employees who have been affected.

Any claim for compensation for RSI should be made within 3 years of the date the employee knew or reasonably should have known that the RSI has been caused by their employer. Any claim after 3 years will be time barred, unless the time bar has been extended by the courts.

‘An occupier’ is someone who has a sufficient degree of control over premises. It is therefore important to note that an occupier does not have to be the legal owner of a premise, but could also include, for example, an independent contractor working on the premises. It is possible to have multiple occupiers of the same premise. Premises can include anything from buildings to car parks, shops or scaffolding.

Occupiers have a legal duty of care towards certain individuals that may come onto their premises. Occupiers owe this duty to visitors, the likes of which is outlined in the Occupier’s Liability Act 1957, and to trespassers, which is outlined in the Occupier’s Liability Act 1984. Different duties are owed depending on whether the person is a visitor or a trespasser.

If an occupier fails to fulfil his duty (in which case he has ‘breached’ his duty), then it may be possible to sue him. A simple example could be where a visitor enters a museum to view an exhibition, and whilst walking around, trips on a loose cable on the floor, breaking their leg. The museum has failed in its duty to protect its visitors. It may therefore be possible to sue the museum for the damage the visitor has suffered.

What Does an Occupier’s Duty to Visitors Consist of?

The duty that occupiers owe to visitors is to ensure that they have taken reasonable care to see that visitors are reasonably safe in using their premises. Liability can only arise from the state of the occupier’s premises.

A higher degree of care is required where the visitor is a young child or an elderly person.

How to Fulfil Your Duty

If you are an occupier, and you are aware of a danger that could arise from the state of your premises (or have reasonable grounds to believe a danger exists), you must take reasonable steps to offer protection to visitors.

One way to fulfil this duty is to display an adequate warning sign, which refers to the specific danger of the premises. It is not enough to erect a sign which merely states ‘Beware’, or ‘Danger’. The warning should be displayed somewhere prominent where potential visitors will notice it and be able to read it before entering the premises. As an occupier, you must also consider what type of visitors will be entering your premises. If it is likely that some of them will not be able to read English, then a warning sign in English will not alleviate your obligations.

Another way to fulfil your duty is through a sufficient exclusion notice. If you erect a clearly worded notice, which covers potential loss that could occur from a danger on your premises, it may be sufficient for you to escape liability.

What Does an Occupier’s Duty to Trespassers Consist of?

An occupier’s duty towards a trespasser is more limited than the duty he owes to a visitor. A trespasser is someone who enters premises without invitation from the owner/occupier. In this situation, an occupier only owes a duty to the trespasser if he is aware of the existence of a danger, he knows/has reasonable grounds to believe that the person is in the vicinity of the danger, and he should be reasonably expected to offer the person some protection.

Failure to adhere to this duty could result in civil action.

How to Fulfil Your Duty

As has been mentioned, the use of adequate warning signs on the premises may fulfil your duty.

Additionally, in certain circumstances it is also a good idea to use discouraging measures in addition to a warning sign. This could take the form of barriers around obstructions/dangers.

We came across a report that black boxes might be installed in all new cars and our first reaction was, with all the technology around, why did someone not think of this earlier ? It makes a lot of sense.

The use of this technology has been mooted for the most catastrophic of car accidents but would it’s potential application maybe extend to less serious claims, but which involve personal injury claims. Certainly, the number of personal injury claims generally and whiplash claims in particular, seem to have spiked massively in the last 10 years, and the obvious implication of this is that fraud is a serious issue. Until now, the issue has been largely swept under the proverbial carpet but the massive cost of the claims is now impacting all in big increases in insurance premiums, so the idea of black box evidence is perhaps not that outlandish, even for use in some personal injury claims such as whiplash.

Outside of the magic circle law firms who handle the vast majority of the big corporate and international growth and save perhaps for a very few other niche sectors, almost all growth in the legal sector has been in the personal injury market over the past 5-10 years with the top 50 injury practices believed to employ as many as 30,000 of the 130,000 or so solicitors in England & Wales.

Notwithstanding the ban on referral fees and forthcoming changes to the ability to charge success fees and likely removal of a 100% win for clients, the personal injury sector is still attractive and it seems likely that the first wave of Alternative Business Structures which may involve private equity investment in the legal sector may well target the most successful injury law practices.

We will keep an eye on developments and post updates on any interesting news on the above.

We picked up a recent story in the local press for Dudley in the West Midlands which perhaps indicates what’s wrong with the compensation claims market.

As with any aspect of society, business or life generally, there are good and bad, and the snippet which follows perhaps simply shows the reasons why legitimate claims and hardworking personal injury solicitors who are skilled at what they do get a bad press unfairly.

Anyway, Dudley Council, like all councils, receives a large number of claims each year, and the article in the local paper suggested that this council had received over 800 claims in the last 3 years which would have amounted to over £4 million in damages had they all been paid out. In the event nearly 500 of the claims were rejected and damages of some £500,000.00 paid out. This sum is modest compared to many other councils.

Most personal injury claims against Local Authorities arise from accidents on the public highways, including pavements, due to uneven surfaces and potholes. With weather conditions becoming more changeable and budgets cut, this problem becomes an ever more uphill battle for the Council. Many try their best, some are not so good, not even urgently repairing clearly dangerous reported hazards when reported.

These types of claims against the council for tripping and slipping often turn on the size of any pavement discrepancies and also how regularly the council can prove that it’s Highway Inspectors inspected the road in question and what the last inspection showed.