Accident at work and the legal process
If you have been injured in an accident at work or working elsewhere you may have an Accident Compensation Claim against a group or individual responsible, including your employer. Employers are required by law to have Employer Liability Insurance and the insurance company will deal with your Accident Compensation Claim for injury and losses, including loss of earnings. Even if your accident hasn't caused you to take time off work, you can still claim compensation for the physical pain and suffering of your injury. Accidents at work can happen in various ways and even if you think no-one was necessarily to blame, you may have a Accident Compensation Claim, involving defective equipment or machinery, inadequate training in the use of machinery, lifting heavy objects, using dangerous machinery, faulty, damaged or slippery flooring, careless acts by other workers causing an accident, lack of safety clothing for example. In English Law, you must commence Court proceedings to claim damages for personal injury and consequential loss within three years of the date of your accident. (If you are under 18, the three year deadline runs from your 18th birthday. It therefore expires on your 21st birthday.) We will carefully note the limitation date in our firm's records, both in your file and on our computer, but we ask that you too make careful note of this important date in your own records.
In order to bring a compensation claim for your injuries you must prove that some person or organisation other than yourself is fully or partially liable for your injuries. To succeed in your claim, you must prove fault by a third party. To prove fault we will allege negligence and/or breach of statutory duty by the Defendant.
To prove negligence you will have to show that not only was the Defendant in breach of a duty of care owed to you, but also that the breach has caused foreseeable damage to you. To prove breach of statutory duty, reference will be made to the specific duties laid down in Acts of Parliament that may apply to the circumstances of your case.
An accident compensation claim will fail if a Claimant is unable to prove liability on the part of the Defendant.
The burden of proof rests upon you to show that the Defendant was negligent and/or in breach of statutory duty and caused injury to you on a balance of probabilities. In other words you must show that it is more likely than not that the Defendant is liable and has caused you damage.
If you can prove fault on the part of the Defendant, the next stage of your case involves assessing the value of your claim. Lawyers call this 'quantum'.
In legal terms compensation is called 'damages.' Damages fall into two camps. The first type of damage is called general damages. General damages represent accident compensation for the pain and suffering and loss of amenity suffered by you. General damages can only be assessed when the relevant medical report is obtained.
The second type of damage is called special damages. This head of damage is more scientific in its calculation. In essence, special damage relates to out of pocket expenses such as travel expenses, damage to belongings and loss of earnings. This list is not exhaustive.
As you are the Claimant in this case, it is for you to dictate the pace of your litigation. It is not for the Defendant to do so. We advise that negotiations be opened with the Defendant's insurers to see if liability can be admitted at an early stage. We would then prepare full details of your claim (both general and special damage) and provide them to the Defendant's insurers with a view to negotiating a settlement.
We will investigate your case as follows:-
a) Write a letter of claim to the Defendant and correspond with the Defendant's Insurers once appointed by the Defendant on the issue of liability. The Defendant's insurers are under an obligation to make enquiries and confirm within 3 months that they admit liability or that they will provide a detailed response as to why liability is denied.
b) Obtain witness statements when and where appropriate.
c) Obtain out of pocket expenses information when and where appropriate.
Once the above steps have been completed, we will review your case plan. In any event, we will update on progress at regular intervals throughout the duration of your case.
Please remember that although you are entitled to recover losses you have been put to as a result of the accident, you are under a duty to mitigate those losses i.e.; you must, where reasonably practical, keep those losses to a minimum. Losses not mitigated may not be recovered. Please ensure that you keep receipts for any losses you are put to as a result of the accident. We will need these in due course to prove those losses claimed in your accident claim process.
Basic Contract Principles
Let’s start with basic contract law. In order to have a Contract, there must first be an Offer. The “Offer” can be an offer for a good or a service or almost anything else for that matter. In Example 1, A offers to by a car from B for $1,000. In example 2, X says to Z “If you pay me $50 I will paint that room”. Clearly both of those statements are Offers. For the most part, the Offer will be along the lines of someone promising to do something, buy something or give up something.
The next step in Contract formation is called an Acceptance. The Acceptance regarding the above scenarios would be B’s reply “Yes, I will sell you my car for $1,000" or Z’s reply “Yes, I will pay you $50 to paint the room”. Take note that a Counter-Offer will not act as an Acceptance, but rather as a Rejection. Referring to the above scenarios, B says “I will sell you my car for $1,200 instead of $1,000". This is a rejection of the initial offer, and becomes a Counter - Offer to A. A must now choose to Accept or Reject B’s Counter - Offer. If A rejects the Counter - Offer, the Original Offer is no longer on the table. The process must begin again.
The third aspect of Contract formation is called Consideration. Consideration means that something of value must be exchanged. The Consideration in the car scenario for A would be receiving the car. The Consideration for B would be receiving the $1,000. Consideration in a Contract must be mutual, that is, both parties must receive something of value. Take note, that the value need not be equal or necessarily fair. A can offer to buy B’s new Corvette for $1,000. If B Accepts, then a Contract will be made, even though it should be obvious that this is not a fair deal. That sums up Basic Contract Principles.
Greg Artim is an Attorney with offices located in Pittsburgh, Pennsylvania. For more answers to your Contracts or other legal questions, please visit his website at
www.gregartim.com/contracts.htm
Grandparents’ Rights for Custody in Pennsylvania
In Pennsylvania, Grandparents have the opportunity to seek custody of a Grandchild under limited circumstances. The Pennsylvania Statute enunciated at 23 Pa.C.S.A. § 5313, sets forth the circumstances under which a Grandparent may petition for Custody of a Grandchild.
A Grandparent may petition for Partial Custody and Visitation where an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents. The court will grant the petition if it finds that visitation rights would be in the “best interests of the child” and would not interfere with the parent-child relationship. The best interests of the child is the standard used in all custody cases in Pennsylvania. In it core form, the best interests of the child means what is best for the child’s physical, moral, intellectual and spiritual well being.
A Grandparent may petition for Full Physical and Legal Custody of a grandchild if it is in the best interest of the child to not be in the custody of either parent. In order to qualify for such type of custody, the Grandparent must (1) have genuine care and concern for the child; (2) have a relationship with the child which began with the consent of a parent of the child or pursuant to an order of court; and (3) who for 12 months or more has assumed the role and responsibilities of the child's parent, providing for the physical, emotional and social needs of the child, or who assumes the responsibility for a child who has been determined to be a dependent child or who assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or mental illness.
In attempting to establish a Grandparent’s rights to either Partial or Full Custody, the Pennsylvania Courts will consider the following factors: (1) the amount of disruption extensive visitation would cause in the child's life; (2) the suitability of the grandparents' home (3) the emotional ties between the child and the grandparents; (4) the moral fitness of the grandparents; (5) the distance between the child's home and the grandparents' home; (6) the potential for the grandparents to undermine the parent's general disciplining of the child as a result of visitation; (7) whether the grandparents are employed and the responsibilities associated with such employment; (8) the amount of hostility that exists between the parent and the grandparents; and (9) the willingness of the grandparents to accept the fundamental concept that the rearing of the child is the parent's responsibility and is not to be interfered with by the grandparents.
Greg Artim is an Attorney with offices located in Pittsburgh, Pennsylvania. For more answers to your Grandparents’ Rights legal questions, please visit his website at
www.gregartim.com/grandparents.htm
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