Hi all.

An outline.....

On the 5th of November 2005, my son was deliberately run over by a 17 years old who had taken a dislike to him ( we still dont know why he dislikes him).

My son was pefectly sober. He was out with a few friends but hadnt finished work till 10pm that night - the incident was at midnight.

My son was walking on the pavement and the driver purposely drove up the pavement, hit my son who was thrown onto the bonnet then drove up the pavement at speed. He then slammed the brakes on, threw my son up the street and he suffered multiple injuries and unconciousness.

He had a badly gashed head, numerous cuts and bruises, but worst of all - a badly shattered ankle.

There were three independent witnesses who all turned up at magistrates court and gave evidence in my sons favour.

Throughout all this, the driver maintained that my son was laid in the road and he hit him because he didnt see him.

He was subsequently convicted and given a 9 month ban and hefty fine.

Now, in the last 2 years, my son has had 2 operations on his ankle, it is currently held together in a wire cage. He has now been told by 4 seperate consultants (2 NHS and 2 private) that his ankle is permanently damaged and will require "fusing", This means his ankle will have no flexibility and he will always walk with a limp.

All 4 consultants have said that any future employment will be severely restricted as in their opinion, he cannot work in places like building sites, warehouses, or any job that may require heavy lifting, as the ankle will always be weak.

Recently, through my sons solicitor, we have had a reply from the drivers insurance company saying that they have been in touch with their insured and he says that my son was laid in the road and he hit him by accident.

Because of this, they offer 50/50 liability. I would have thought that based on what their insured has told them, they would have denied ALL liability.

My sons solicitor is now getting the transcripts from the magistrates court that show the driver trying to use the same story - but contradicted by my son and the 3 other witnesses and summarily convicted of careless driving. (We would have preferred dangerous driving, but we would have had to show intent which would have made it an all-or-nothing gamble).

Now apart from the obvious claim for injuries, loss of earnings etc, I am of the opinion that based on the consultants statements, the insurance company has to provide for 46 years of restricted disability, lowered employment prospects and future suffering ( he is still suffering varying degrees of pain). He was 19 when he was hit by the car and has 46 years to retirement age.

Does anyone have any further thoughts on this?

Thanks in advance.

Do you realise that the usual limitation period for personal injury claims is 3 years.

I think that you should have started litigation by 2008 and you may have prejudiced your position by not doing so.

Have you taken any legal advice on this?

I think that this is a case which should be handled by a good PI solicitor

Damn Guiness!! Sorry BankFodder - that should have read "November 2007"!! My apologies.

Claim has now been ongoing for the last 18 months or so - according to my sons solicitor there is a 2 years "waiting period" before any injury in a case like this can be medically pronounced as a "permanent disability".

Any further thoughts will be well appreciated.

Thanks

Hi all, just an update.

My sons solicitor asked for a £1000 interim payment.

Today, she rang my son and said she had a cheque for him and she could either post it or he could pick it up.

Upon picking it up, he found it was for £1500! Seeing as she only asked for £1000 can anyone tell me if this means anything?

She has also told the insurance company that THEY must get the court transcripts simply because there is a fee involved and WE should not have to pay it.

I would have thought that we should have arranged this and claimed the fee back - is there a reason for this that I am unaware of?

Hi Merlin,

the bad news is that personal injury claims take a long time to sort out, and there will be a lot of frustrations, a lot of to-ing and fro-ing, lots of arguments between you and the insurers etc etc. However that should be it as far as the bad news is concerned.

Remember that there is no 'automatic' answer as far as this sort of things go - you need to treat it as a negotiation and make sure that you are happy with what offer you are being given. If you are not happy then do not accept it. It is very common for insurers to open with a 50/50 offer - a lot of people will take it.

However from your post it definitely seems like you should only settle for 100% - it was a deliberate act by the other party, and this means that there is nothing that your son could have done to prevent it, or reduce the damages to himself. This means that the only thing left to do (from an insurance point of view) is to work out the financial loss by your son.

This will be done by seeing what sort of career he has / was looking to get into, and the damage caused to him. If he was likely to be an office worker sat at a desk then the payout will be minimal as far as future earnings are concerned. If he was looking to be a sportsman then it could be very large as that would require full mobility of his ankle. On top of this you will get hospital costs + compensation for the discomfort that will depend upon how much pain he will be in etc.

I'm no claims expert so I can't really state how much this is likely to be (others here might be able to give you a realistic ballpark figure), but it is going to be in excess of £1000 / £1500, so the interim payment is realistic to help you cover costs whilst assessment & treatment are ongoing.

Just hold in there and don't take any crap.

Hi Wilfyn and thanks for the advice.

Yes we know it takes time - it will be 2 years next month. One of the reasons is that apparently a consultant is bound by a 2 years rule before he can "write off" an injury as permanent - my son goes back to see him next month and the consultant has already said his ankle is beyond repair (actually 4 have said it - 2 NHS and 2 private).

My main concern is that no-one as yet - including my sons solicitor - has made any reference to this disability regarding the next 44 years of his working life. We already now have 4 seperate doctors statements that say he cannot work on building sites, in warehouses etc as his ankle will always be weak. He used to enjoy playing football several times a week but that has been advised against also.

I did wonder if his solicitor is merely waiting for the 2 years to pass then will bring this future restriction into play - like you, she has already said its 100% and no less!

The main reason the insurance company has offered only 50% ( incidentally, there was no monetary figure mentioned so we dont really know what the 50% was) is that their client told them the same lies he told the court - so they only have that to go on at the moment. The court transcripts will show the magistrates openly telling him he had told a pack of lies.

The insurance company won't be talking to you about this because it may affect their position (after all you are looking to get as much as you can and they are looking to pay as little as they can, as it is a negotiation). However you can be very sure that they are already pricing this up.

When a claim is notified the first action that is taken towards settling the claim is that a reservation is made. The claims department will use their knowledge and experience to make an estimate on what they feel the claim is going to cost. This is done to ensure that the insurance company has sufficient capital liquidated to make a payment.

This reserve is just an estimate, and it is not binding, and they can move greatly as new information is gathered.

Claims like this tend to get treated as 'large claims' (what constitutes large depends upon the insurer, but typically personal injury cases which are not minor will trigger the £20k, £30k, £50k or whatever limit is set). These are dealt with in an outside-of-the-norm way, because they require extra information such as doctor's reports and even things like exam scores to assess the sort of earning potential.

For loss of earnings there is something called the Ogden tables ( Ogden tables - Wikipedia, the free encyclopedia ). These are lists that calculate the earning potentials of individuals, based upon career and life expectancy. Your son will be rated on this on a pre and post accident basis, and the difference between the two sums will form the basis of the future earning potential loss compensation.

These are particularly difficult to assess for people under 21 as they are unlikely to have completed their education and started a career, so take longer to work out. Additionally injuries can often turn out to be a lot better or worse a year after they have happened than originally thought. It also gives your son a chance to work out what he wants to / is able to do post accident, and helps to work out how his quality of life has been affected. It's very frustrating, but don't hesitate to ask for interim payments to be made to you because even though the insurer may not have discussed the future earnings with your son they are already thinking about it.

Thanks for that info Wulfryn - very interesting.

It would be nice if we had an idea of what this claim may be worth but up to now no-one has ventured a figure. After everything he has been through it wouldnt be right if the claim turned out to be worth very little. However, I dont think this will be the case.

One question though - will the insurance company automatically assess any future loss of earnings/ restrictions in employment/ pain and discomfort etc or is this something we have to bring to their attention/ claim for?

The reason I ask these questions is that we have had very little input from my sons solicitor. She does seem to be fighting our corner really well, but any definitive information is not forthcoming. So we are very much in limbo!

It also doesnt help when we hear that the lad that did this has just recieved another 9 months ban, this time for drink driving. Talk about irresponsible!

Thanks again Wolfryn.

The insurance company will do this automatically.

Again many thanks Wulfryn - just had a look at the Ogden Tables you supplied. Bit heavy reading but starting to give me an idea of what he can expect!

Thank you

Hi all,

a brief history.......

2 and a half years ago my son was involved in a car accident that crushed his ankle leaving him struggling to walk any decent distance.

It is getting progressively worse and his consultant has confirmed this in writing.

In all this time we have battled with the DWP to get him some type of benefits but their arguement is always this - he cannot claim jobseekers as they consider him to be unfit for work, but then he cannot claim disability benefits without a sick note but his local doctor is unwilling to provide one.

Now the events of yesterday.......

Out of desperation we made another appointment to see a doctor at his local surgery.

We took the last consultants report with us and ask her to look simply at the most salient points. We also told her of our 2 and a half years battle resulting in nothing and asked if he could have a sick note.

The report is excellent, and apparently, the consultant is the best in the country ( according to the doctor).

Unexpectedly to us, she got on the phone to the DWP and gave them a right roasting and demanded he be given an examination by them to determine his fitness ( or unfitness) for work.

They gave her phone numbers and names to pass to us which she duely did and the appointment ended with her saying that if we didnt get any joy, to ring her back and she would contact them again.

My son went home and began ringing the numbers. They all denied any any liability to his situation and once again he got on the merry-go-round of buck-passing by these cretins.

So he rang her back this morning.

For reasons best known to herself she is back-tracking like mad, its almost as if someone has had a secret word with her. Basically she doesnt want to know.

Yesterday she was adamant that if my son was unsuccessful with these people, then she would issue a sick note. Now she is saying she doesnt want to issue one(?)

So what can we do?

We have consultants reports saying the injury is permanent, cannot be repaired, and any future surgery will be for pain-relief only.

There is a universal agreement between the consultant, the hospital, and his local doctor that my son is suffering a great deal of frequent pain.

The consultants report states that he cannot work in any industrial capacity ( ie, heavy work etc), only jobs in call-centres etc - but it is still accepted that wherever he works, he will have to sit with his leg elevated as the blood supply has also been affected and is contributing to the pain he is feeling - whos going to take that into account eh?

What can we do anyone?

I'm afraid that the legislation for benefit relating to inability to work (Employment and Support Allowance) dictates that sick notes (or fit notes as they are now called) are a condition of the claim until the assessment phase has passed, a mdeical has been performed and a determination made on limited capacity to work.

Unless his GP issues a sick note, any claim to ESA would be unsuccessful. The DWP would not be complying with the law if they awarded ESA in the absence of a sick note in the assessment period. Your son's complaint therefore lies with his GP. If his GP believes he is incapable of working then she should be issuing a certificate to that effect to enable him to claim the benefit. The only reason she should not be issuing one is if she believes that he is perfectly capable of working. As there is some capacity to work (and many employers particularly in call centres would have no issue with someone elevating their leg) perhaps this is why she won't issue a sick note to the effect that he is unable to work. Though she could still issue one to the effect that he can work subject to XXXX - this is what the new "fit notes" ask for in any case. If there is no reason why she is refusing to issue a sick note, I suggest going to another GP to obtain one and in the meantime, submitting a complaint to the practice manager about this.

Does he have any personal care or mobility needs arising from his injury? If so, he could claim DLA (Disability Living Allowance). They can write to his professionals requesting reports about his condition but no sick note is required for DLA.

Hi Erika. I was hoping you would show up:)

Thanks for the in-depth explanation, things are a little clearer now.

However......

After all I said in my original post, my son then got a call a 5pm today from the local doctor. She told him that she had now left a "fit note" at the surgerys reception for him, valid for one month - I wish she would make her mind up!

So, considering it has been years since I had any time off sick, and my son has never had one of these fit-notes before. What do they actually mean?

She hasnt said hes unfit for work, but has written on it that he is to undertake no manual work and that any work he does take on must have the provision for him to keep his leg elevated due to the restricted blood supply.

Does this mean he can claim some money, and if so, what?

She hasnt said he can do no work so to my mind this says he is not sick. Or am I misinterpreting this?

The DWP have now given him an address to post this fit-note to but it is a freepost address and I dont trust it. I would have liked to have sent the fit-note by recorded delivery but Im sure this cannot be done with a freepost address.

All I can do now is scan the fit-note and keep copies - its a racing cert the DWP will "lose" the fit-note.

We have now put in a claim for DLA but this can take up to 8 weeks (according to DLA). So we wait again!

Thanks Erika.

Yes, the new fit notes are to state what, if anything a person can do. ESA is for people with limited capacity for work. He will receive the assessment rate of ESA after his application for approximately 13 weeks, upon which he should have an assessment undertaken by ATOS healthcare. After the assessment it will be determined whether he qualifies for the support group, the work related activity group or whether he is not entitled to ESA having no limited capacity. He will need to score over 15 points at the medical.

My motto on CAG is never to lie or mislead so I won't. If the only thing preventing your son from working is the fact that he needs to elevate his leg for a significant proportion of the day, it is very unlikely that he will qualify for ESA after the assessment as it is unlikely 15 points would be awarded. From what you have told me, if ESA is continued after the assessment, it will be the work related activity group he would be placed in. This is the group for people who though having limited capacity to work, can work with some reasonable adjustments to take into account their issue. The support group is for people who have no ability whatsoever to work, for example terminal illness, severe mental incapcity, or complete paralysis. (these are extreme examples).

I hate to be so forward, but I think there may be more than simply requiring elevation of the leg otherwise JSA should not have been refused because essentially a person with such an issue would be considered fit for work with some adjustments. For example, I have a condition which means I need reasonable adjustments in the workplace such as a desk at a specific height, a custom chair with rocking mechanism, an adjustable foot rest and I have to perform exercises during my day to prevent my muscles stiffening. But I'm otherwise fit for work. I wouldn't get ESA as I wouldn't meet the descriptors for it and would be required to claim JSA if I became unemployed. It is very important that if there is more to this than simply requiring leg elevation during working hours, that your son is forthright on the application form and during the ATOS assessment, advise him not to play his condition down - I know it is hard for a person to think of how debilitating their condition is, and harder to put it down on paper, but he must describe exactly how his condition effects him (both mentally as well as physically) otherwise he will be found not to have limited capacity for work and will not qualify for ESA. I don't expect you to go into detail here if you find it too hard to do so but please advise your son not to leave anything out of his application, as it may affect his entitlement.

Most (if not all) DWP addresses for claiming benefit are freepost now to save cost to the claimant. Freepost can be sent recorded but bear in mind recorded (track and trace) is not guaranteed - only special delivery is guaranteed. Also, no mail goes directly to DWP now. It goes via Royal Mail for secure checking thus any mail you send goes to Royal Mail. However as Royal Mail are a contracted mail opening unit (MOU) for DWP, any mail that you send there which can be proven to be delivered there by signature for receipt, will be dealt with by DWP liaising with Royal mail if there is an issue with missing mail. Anything that cannot be proven to have arrived at the MOU before disappearing into the abyss cannot be dealt with by DWP and must be dealt with by Royal Mail.

Thanks for the lengthy reply Erika. I really appreciate it.

So if we are successful at getting ESA, does he still have to renew the fit-note after it has expired like you had to do with a old sick note?

I mention this because you say that he will be on ESA for 13 weeks?

He does have other issues not related to this current problem. Hes been asthmatic from birth and has a weight problem - again from birth.

Up until the accident he always did everything he could to keep the weight down. He was very active, football, rugby, cycling, swimming etc and managed to keep around the 14 to 15 stones mark.

Now, because hes so restricted, hes around 19 stones and its getting him down. Hes currently trying Slimming World and Weightwatchers but these seem to be ineffective.

The bones in his ankle are so badly damaged that you can see and feel the damage through his foot. The screws that hold them together are moving and hes already been told he will have to undergo further operations simply to rectify this. This is on top of future pain-relieving operations.

All in all, the common medical consensus is that the ankle will have to be "fused" at some point in time but he has been told he will then always walk with a limp - not good news for a 20 years old!

Thanks Erika.

Weightwitchers??????????

He will need to keep providing medical certificates up until his GP is told by DWP to longer supply them - this is up until ESA tell your son whether or not his claim is successful, and what group he falls within if it is successful (the work related activity group or the support group). If he stops sending in certificates before he is told he no longer has to, his benefit payments will be suspended.

The 13 weeks is the assessment phase. If at any time during this phase he is assessed and they decide he is not entitled to ESA, he will be informed in writing and his payments will cease.

Ok Erika - got you now oh great chosen thingy!

Thanks for the knowledge. You are a star:)

Weightwitchers??????????

I like that :D:D:D

This GP sounds very unhelpful

If that was me,i would find another GP ?

Hi all, another update - Erica I could do with some advise!

The ESA now say they never recieved the fit-note - my son has simply given up.

I scanned both sides of it and sent the original by recorded delivery - they say it doesnt matter as it is my sons responsibility to ensure they recieve it. A copy also will not suffice.

So it looks like even though they have signed for it, and I have copies of the fit-note, none of it matters.

I guess we will just have to carry on supporting him ourselves.

Christ its crap to be white in this country these days!!!!

Depending on the BDC, they can accept faxed copies of an [un]fit note from the GP surgery. Ask if you can have a copy faxed from there...

Best wishes

Rae

Christ its crap to be white in this country these days!!!!

Hi merlin100, I emphasise with you and your son's plight, we are all in similar situations on this forum, but please refrain from making racist remarks. We are all here to help one another regardless of ethic background which I personally find offensive and not of benefit to anyone.

Christ its crap to be white in this country these days!!!!

The situation you have described is, unfortunately, a fairly common one and happens to people regardless of their skin colour.

As Rae said, if you can get a fax number from the Benefit Delivery Centre your son's GP might be able to fax over a duplicate - some BDCs will accept this. Or if the GP will issue him a duplicate (most will, although they might grumble about it) he can ask for an appointment to take it in to a Jobcentre.

Hi merlin100, I emphasise with you and your son's plight, we are all in similar situations on this forum, but please refrain from making racist remarks. We are all here to help one another regardless of ethic background which I personally find offensive and not of benefit to anyone.

Where is a racist remark? Im not a racist - I have no objection to sending overseas aid to help the less fortunate. Nor do I object to bringing sick foreign children over here so they can benefit from our health system.

But I do object to the hidden ideals of the few whos only objective is to change my very way of life. My beliefs, my future, my childrens future - even my past. All gone.

I am a patriot, not a racist. I still love my country and its people - I despise the idiots that run it.

Hi all, another update - Erica I could do with some advise!

The ESA now say they never recieved the fit-note - my son has simply given up.

I scanned both sides of it and sent the original by recorded delivery - they say it doesnt matter as it is my sons responsibility to ensure they recieve it. A copy also will not suffice.

So it looks like even though they have signed for it, and I have copies of the fit-note, none of it matters.

I guess we will just have to carry on supporting him ourselves.

Christ its crap to be white in this country these days!!!!

Why is it always racist to say whats true. It doesnt take a genius to work out why all of a sudden Britain cannot afford, benefits, NHS, schools and now making people work until they are 68.