Who Can Make a Personal Injury Claim?
Does your claim qualify? Get free, no obligation advice!
Making a personal injury compensation claim can seem incredibly intimidating, especially if you have never been involved with the Courts before. A specialist personal injury solicitor can expertly guide you through the claims process, and explain how much compensation you might be entitled to.
The first step on the journey, though, is establishing whether you can make a personal injury claim.
The most obvious answer to this question is the person who suffered the personal injury, be it from an accident or medical negligence.
A successful compensation claim can secure the funds you need to access the best rehabilitation, pay legal costs, retrain for a new career (if you can no longer do your current job), and pay your expenses while you recover.
It can also help you gain a sense of closure and a feeling that justice has been achieved.
Tragically, children can suffer personal injuries due to accidents or clinical negligence.
In 2018, a six-year-old boy received £37 million compensation after he suffered a catastrophic brain injury due to contracting the herpes simplex virus at Watford General Hospital, which led to a brain fever.
The compensation consisted of a lump sum payout plus annual, index-linked and tax-free payments to cover the costs of the 24-hour care the child requires for life.
Significant compensation can also be awarded to survivors of childhood sexual abuse.
In April 2023, the Criminal Injuries Compensation Tribunal awarded a woman over £100,000 for psychological injuries she had suffered over 40 years.
Parents, guardians, or other responsible adults may be permitted to bring a claim on the child’s behalf. This often happens in the case of catastrophic birth injuries where the child is suffering from a severe injury such as Cerebral Palsy or serious brain damage.
The person bringing the claim is known as a Litigation Friend. More on this below.
Suffering a catastrophic injury, especially a catastrophic brain injury, can mean the patient cannot bring a personal injury claim themselves.
In a legal case, such a person is known as a ‘protected person’. Loved ones can claim compensation on the protected person’s behalf by acting as a Litigation Friend.
A Litigation Friend can also be appointed to bring a claim on behalf of a child.
A Litigation Friend is someone who can fairly and competently conduct proceedings on behalf of a child or a protected person (someone who, because of a mental disorder, is incapable of managing and administering their own affairs).
The Civil Procedure Rules (CPR) 21.4(3) states a person may act as a Litigation Friend if they:
In the case of a child, a Litigation Friend is typically a parent or guardian. Parents are often appointed to the position in the case of an adult claimant; however, a friend, caregiver, or relative can be a Litigation Friend.
However, the Official Solicitor will undertake the role as a last resort if no one can or will act as a Litigation Friend.
There are two ways to appoint a Litigation Friend, namely:
Most applicants file a notice in court. Your personal injury lawyers will do this on your behalf. You will also need to:
Acting as a Litigation Friend is a big responsibility. Every action and decision you take must always be in the protected person’s best interests. As a Litigation Friend, you may have to:
It is important to note that the Court must approve any claim settlement you agree to on the protected person’s behalf.
In the case of a child making a no win no fee claim, the appointment of a Litigation Friend ends when the child turns 18. If the Claimant is a protected party, a Court Order is needed to terminate the appointment or substitute the Litigation Friend.
Given the vulnerability of a child or protected person making a personal injury claim, the Courts will ensure that the CPR 21.4(3) requirements continue to be met.
In Major (by his litigation friend Katherine Gee) v Kirishana [2023] EWHC 1593 (KB), the Court held on appeal that a Litigation Friend who no longer wanted the position and doubted that she could meet her duties should be discharged.
Mr Justice Cotter stated:
“The starting point when considering whether the appointment of a litigation friend (legally qualified or not) should be terminated is whether the conditions in CPR 21.4(3) continue to be satisfied and whether the litigation friend continues to consent to act. These are not merely factors which may be taken into account in the balance with no more weight than any other considerations. The Court should guard against any weakening of these mandatory requirements which may deprive a protected party of what the rules deem as necessary protection. If the conditions are no longer satisfied, or the Litigation Friend no longer consents to act it, it will require exceptional circumstances for the appointment to continue.” [emphasis added].
The Limitation Act 1980 provides that you have three years to claim compensation if you suffer a personal injury due to an accident or clinical negligence. The three years run from the date you were injured or the date you became aware of the damage (known as the ‘date of knowledge’), whichever is soonest.
Children who suffer a personal injury have three years from the date of their 18th birthday to bring a claim, so the claim must be brought before their 21st birthday.
The easiest way to start a personal injury claim is to contact a legal advisor through an online form or by calling 0800 234 6438 immediately after your accident.
Your personal injury lawyer will likely take your case on a No Win, No Fee basis. This means that if you lose your case, you will not have to pay any legal fees, although you will need to pay any expenses related to your claim (these are known as disbursements).
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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