Cost of pain takes years to assess

18th October 1996 at 01:00
Making a personal injury claim needs great patience says Graham Clayton.

Stories about five and six-figure awards for teacher victims of accidents and assaults are sure to catch our attention. The National Union of Teachers was pleased to obtain Pounds 95,000 for an assault victim earlier this month, but such awards tell us little about the difficulties of pursuing a personal injury claim.

It's a protracted affair, whether the injury is the result of assault or accident. A victim of assault pursuing a claim to the Criminal Injuries Compensation Authority, may wait years before a final award is made. A personal injury claimant pursuing litigation must await the completion of highly formalised exchanges between the parties and then the allocation of time for hearing the case.

Even in cases, and they are the majority, in which there is no real dispute about liability for compensation, there is no quick-fix settlement.

The first delay is in the interest of the injured teacher. No lawyer will recommend the settlement of a claim until the effects of an injury have been fully and clearly assessed. This may be months or even years after the injury.

But beyond this there are many other reasons for delay, the most fundamental of which is that the law expects a claimant to prove the case.

The arguments over the facts are often on matters of detail and sometimes pedantic. And there are degrees of liability. Liability to compensate in principle may not be disputed. The question may be whether the claimant was also partly to blame, or as lawyers put it, contributorily negligent.

Rather more subtle influences also contribute to disputes over the facts. Some managers in education these days tend to be rather sensitive about allegations that an error or defect at school has caused an injury. Their tendency to play down an incident is an unwitting instinct.

Finding out exactly what has happened, and what is the cause, is the first task. In accident cases, the facts may well not be as they appear at the outset. Accidents are, by nature, sudden. Shock and surprise are no help to the kind of precise analysis needed to support a claim. Witnesses, even if there were any, will only rarely have been looking directly at the incident.

It is important too to be precise with words. A teacher who reported that she had "tripped" met great resistance to her claim when it was revealed that the hazard she encountered was one of slipping on a worn and shiny step.

Often, it is a matter of conjecture from the circumstances and not an easy one. A removable hazard is not likely to be available for examination for long. The food remnant on which Mrs Jones slipped in the school corridor will have been cleared up to prevent a second accident long before the lawyers can get to take a look at it.

A claimant's lawyers will not only be interested in the moment of the incident. Have there been previous near-accidents? Are spillages that may cause accidents dealt with quickly? Is safe equipment readily available or is there too much reliance on "make do"?

Once the basic facts have been established, then come the specialists. There are specialists in practically everything that causes accidents, injuries and illnesses, from the wrong polish to dust and noise. Sometimes their evidence is crucial.

Next come the doctors. During the pursuit of any major claim, the claimant will have to put up with being tested and prodded by some of the best medics around - on both sides of the argument. If the teacher's injury or illness is obscure, or of a type which only recently has begun to be accepted as forming the basis of a claim, the claim may become the focal point of arguments between senior professors of medicine.

Everyone's natural tendency is to attribute every twinge to an accident but the doctors may say that the twinge is nothing but part of growing old, only slightly speeded by the accident. Again, more room for argument.

Loss of earnings and sick pay recovery calculations are the next headache for a legal adviser.

With a good sick-pay scheme teachers do not generally have to worry about money coming in, but their lawyers do have to include their sick pay in claims from which the LEA or other employer is entitled to reimbursement.

In claims for long-term injury, loss of future earnings and career progression and damage to pension rights must be anticipated.

And then there are barristers. The expertise and experience of the NUT solicitors is such that barristers are rarely called in unless some further specialist expertise is needed or unless the case goes to court. Most claims are settled though some of these do at least reach the stage of starting court proceedings. Proceedings have to be started within three years of the date of the accident or the delayed onset of realisable symptoms.

And finally, the pay-off. There is a deep cynical inevitability about the law. It rarely actually puts things right. It only attempts to redress the balance of harm done with money.

This, of course, is what interests the rest of us. Big money. It promotes news and news makes people sit up and demand improvements. But for the advocates for teachers there is as much achievement in securing Pounds 2,000 of justice over an unfairly disputed claim for a badly twisted ankle as there is in securing Pounds 200,000 over a tragic disabling injury.

Graham Clayton is the National Union of Teachers' senior solicitor

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