How Do I Know If I Have a Valid Personal Injury Claim?

Will my claim be successful? This is one of the first questions people ask when they are considering a personal injury claim in Scotland.

While no solicitor can guarantee the outcome of a case, an experienced personal injury solicitor can assess the strength of your claim by looking at factors such as who was responsible, how the accident happened, the evidence available, and the injuries and losses you have suffered.

In this guide, we explain how personal injury solicitors assess whether a claim has a reasonable prospect of success, what evidence can support your case, and what you can do to help strengthen your claim.

How do I know if my personal injury claim will be successful?

In Scotland, you may have a valid personal injury claim if another person or organisation was legally responsible for your safety, failed to meet the required standard of care, and caused you injury and loss as a result. For example, this could be on the road, at work, or when receiving medical treatment.

• Duty of care: The other person or organisation had a legal obligation to keep you safe, such as a motorist, your employer, or the local authority.
• Breach of that duty of care: They were negligent and failed to meet a ‘reasonable standard of care’.
• Causation: Their negligence directly caused you physical or psychological injuries. 
• Loss: You experienced physical pain, emotional trauma, or financial losses such as missed wages from time off sick, medical costs, or damaged equipment.

How does a solicitor decide if a personal injury claim will be successful?

Personal injury solicitors assess whether a claim is likely to succeed by considering liability, causation, evidence, medical evidence, financial losses, time limits and the circumstances of the accident. They may also consider relevant previous court decisions and whether the claimant has taken reasonable steps to minimise their losses.

• Time bar: Usually, you have three years from the date of the accident to make a personal injury claim in Scotland. When a case has reached the deadline, this is known as ‘time bar’ or being close to being ‘time barred’. 

Remember: There are some exceptions, for example in cases with children or certain industrial disease conditions. For more information, see our guide on how long you have to make a claim.

• Liability: To decide who was at fault in Scotland, the law looks at whether the person or business did enough to keep you safe. For example, a driver didn’t look properly or took an unexpected turn, or an employer didn’t keep sufficient records or provide proper training.

Remember: Even if you were partly at fault for the accident, you might still be able to claim. In Scotland, this is called contributory negligence, and it means your compensation could be reduced instead of refused.

• Causation: If your injuries were directly tied to the accident. This is important because it might be clear that there was negligent behaviour, but you need to prove that this is what caused your injuries. It’s especially important in more complex claims, e.g., when there are multiple vehicles in an accident, or if the client has pre-existing medical conditions.

Remember: It can also be more complex to prove causation in certain claims, such as medical negligence. This is because the person’s medical condition or illness would have gotten worse regardless of whether they received negligent medical treatment or not. When making a medical negligence claim, it’s vital to speak with an experienced personal injury solicitor to determine the prospects of your case.

Can a personal injury solicitor guarantee that my claim will be successful?

 No. A personal injury solicitor can’t guarantee the outcome of any claim. They can only assess the available evidence, consider the relevant law, and explain the prospects of your case based on the information available.

What are the key factors a solicitor needs to know if my personal injury claim will be successful?

After establishing who was at fault and if your injuries were caused by the accident, a personal injury solicitor might consider various factors to establish how successful the prospects of your case might be. For example:

Evidence: If there is enough evidence to prove your case. For example, CCTV or dashcam footage, and photos of things such as vehicle damage, faulty equipment, potholes, etc. They might get independent experts involved such as engineers or vehicle repairers. They will aim to establish if the evidence matches your account of the accident.

Mitigation: Mitigation is an important part of Scots personal injury law. It means taking steps to reduce the severity of your losses after an accident as far as reasonably possible. This includes your finances and expenses, as well as how serious your injuries are. For example, continuing activities while you were injured or using a damaged vehicle. If you haven’t taken steps to mitigate your losses, this could affect your case.

Medical evidence: If there’s enough medical evidence to prove your injuries, how long your injuries lasted for, and if your day-to-day life will remain the same following the accident. Usually, they will aim to get an independent medical expert to verify with your medical records and your account of what happened. It’s really important we get the correct details about your injuries straight away. If there’s not enough evidence or if the details don’t add up, this could affect your case.

Circumstances of the accident: For example, in police reports and witness statements. A personal injury solicitor will aim to establish that these all match up with your account of what happened. If they don’t match up, this could weaken your case’s prospects.

Previous case law: Sometimes, a personal injury solicitor will know from previous case judgments how likely it is for your case to succeed. This is because they have more experience from similar circumstances, or they’re more experienced in a particular area of injury, such as industrial disease cases, or medical negligence. At Gildeas, we have a dedicated team for motorcycle accidents, and significant experience in various areas of personal injury law. Find out more about our team’s specialisms here. 

Social media: We live much of our lives online these days, so it’s no surprise that social media could have an effect on your personal injury claim. For example, insurers and other parties have been known to show evidence from client’s social media in court. So if you’ve posted selfies at the gym while claiming you had serious whiplash, this could affect the outcome your case.

How can I prove my personal injury claim will be successful?

There are lots of steps you can take to help your case. In an ideal world, your claim will have strong, independent evidence that clearly establishes who was at fault.

There should be evidence to prove that your injuries were caused by someone else’s negligence, and evidence to prove the extent of your losses. 

Our top tips for getting evidence to help your claim:

If you’re injured due to an accident, you can help prepare for your claim by:

• Visual and physical evidence: Take photos or videos of vehicle damage, hazards that caused the accident such as a pothole or kerb, and photos of all your visible injuries. Find out if there is CCTV or dashcam footage. Your solicitor can help with accessing any footage available.
• Witness accounts: Get names and contact details of anyone present who saw the accident happen. If you have a police incident number, providing this will also help your solicitor.
• Medical evidence: Keep a note of GP and treatment appointments, and paperwork such as hospital discharge letters. These can help form a timeline connecting the incident directly to your injuries. Your solicitor will look to get further medical evidence such as your medical records.
• Financial documents: Save your receipts, invoices, payslips, and bank statements. Your solicitors may need these to prove your financial losses from the accident.
• Official reports:  If you have a copy of any police reports, accident logbooks at work, or incident logs from public venues, please keep these. If not, your solicitor will look to get a copy of these.

Conclusion

Knowing whether you have a valid personal injury claim depends on more than just proving that an accident happened. Personal injury solicitors will consider who was responsible, whether their actions or failure to act caused your injuries, the evidence available, and the losses you have suffered.

Strong evidence can make it easier to establish what happened and demonstrate the impact the accident had. Keeping medical records, financial documents, photographs, witness details and other relevant information can therefore help your solicitor assess your case.

If you’re unsure whether you have a valid personal injury claim, speaking to a solicitor can help you understand your options. An experienced personal injury solicitor can review the circumstances of your accident and explain if there is a reasonable prospect of making a successful claim.

If you or a loved one is suffering, don’t hesitate to contact us for support.

 

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More from Gildeas:

• What Happens Next In Your Personal Injury Claim
• How Much Will I Get? And 9 Other Questions About Compensation
• Off Work And Skint: How We Recover Your Loss of Earnings
• Accident Claim FAQs: Expert Answers From Personal Injury Solicitors in Scotland