Even though the UK personal injury claims sector has grown enormously in recent times, there is still a stigma attached to claiming compensation. We can only imagine the number of victims who have not even considered taking legal action. It is only when you sit back, to take a look from a distance, that you gain a better perspective. So, what should you do if you suspect you have been injured as a consequence of negligence by a third party?
What is negligence?
If you type “what is negligence” into Google, you will come across an array of different definitions. The simplest definition is:-
A breach of a duty of care which results in damage/injury
It matters not whether this breach was accidental or deliberate, if there was a material breach which could have been avoided, this can be serious. You will also come across the term “tort” which is often seen as legal jargon but is quite easy to understand. When used in relation to negligence there are various elements which must be proven:-
- There was a duty of care owed to the claimant
- The action/lack of action fell below the standard expected of the third party
- The action must result in a loss/injury involving either property, financial, mental or physical injuries
If you look at the whole subject of personal injury claims as one subject, it can be quite daunting. It is only when you begin to remove the various layers that it becomes clearer. So, if you believe you may have been injured as a consequence of negligence, these are the three elements which must be proven.
Different types of negligence
If you asked 10 people to describe negligence they would likely give you a number of different answers. Instinctively, many of us see negligence as a wilful act of neglect when this is not always the case. There are various different types of negligence which are considered when pursuing personal injury compensation. These include:-
The term general negligence covers a whole range of different actions or lack of actions. Some of the more common general negligence claims include:-
- Councils failing to repair potholes, resulting in injuries and physical damage
- A business failing to alert customers to a damaged floor, prompting a slip and fall claim
On the flipside of the coin, it is not always easy to prove general negligence. For example, if somebody called your local council at 4 PM today about a pothole, what is a reasonable timescale in which to carry out repairs?
Let’s say that somebody had a crash involving the pothole at 5 PM on the same day. The council could argue that they were only informed of the pothole at 4 PM and did not have reasonable time in which to carry out repairs. That said, if the council had failed to carry out regular checks of highways and byways under their control, this could be deemed negligent. Do you start to see the picture?
All professionals, whatever providing a service or product, have a legal duty of care to their clients. This duty of care is related to their specialist skills. When ruling whether an action/non-action was negligent, they will be compared to a similarly qualified individual in the same field. If they would have taken the same action, then it may be difficult to prove negligence. If they would have taken a different course of action, thereby avoiding injury, this would strengthen a claim of negligence.
Some of the more common professional negligence claims involve:-
- Medical negligence
- Financial advisors
While two of the above examples of negligence have resulted in physical injury, negligent financial advice could result in a different kind of injury, financial loss.
This brings us onto the subject of physical and mental injuries and their legal standing. If someone has broken a leg as a consequence of negligence in the workplace, that is highly visible. Where perhaps bullying in the workplace has created mental stress for an individual, this is unlikely to be visible. Thankfully the courts treat physical and mental injuries in exactly the same manner.
So, if you have been placed under mental stress which has caused issues for you, such as pressure to take on long hours/overtime, you may be able to claim personal injury compensation.
Contributory negligence is another interesting area of the personal injury claims market, often shrouded in mystery. We have seen numerous personal injury claims come before the courts where a party with a duty of care and the injured party have both played a role. As the claimant, it can be very easy to discount these situations as “your own fault” when in reality there may be a degree of shared negligence.
Common examples of contributory negligence include:-
- A road traffic accident as a consequence of driver negligence, where the claimant was not wearing a seatbelt. This may have led to greater injuries than if they had been wearing the seatbelt
- An accident in the workplace where the claimant failed to follow company protocols/procedures. The court may rule in favour of shared negligence, if for example the employer did not have a suitable training programme in place
- Acts of violence on licensed premises, where the victim may have been inebriated, although attacked by a third party. It may be that the licensee had insufficient security on the premises, contributing directly to the severity of the injuries received
As the claimant in each of the above examples, it would be very easy to take a step back, blame yourself and decide against pursuing compensation. However, if you had pursued any of the above claims, the court may well have deemed the third party at least partially responsible.
So, let’s assume that your injuries and the manner of your injuries resulted in a £10,000 personal injury compensation award. If the judge ruled that each party was 50% responsible, then you would receive £5000 rather than £10,000.
No Win No Fee arrangements
The main premise of this article is questioning whether it is worth at least investigating if you should pursue compensation for a personal injury. As the vast majority of personal injury claims are pursued on a no-win no-fee basis, this can make the decision much easier. In effect, the decision is taken out of your hands.
- Gathering evidence
Before approaching a personal injury solicitor about pursuing compensation, you should try to gather as much evidence as possible. This might include:-
- Witness statements
- Medical records
- Timetable of events
When you have gathered your evidence, it is then time to discuss your claim.
- Reviewing your evidence
Your personal injury solicitor would go through your evidence, request additional details where applicable, and use their professional experience to estimate your chances of success. If they believe you have a good chance of a successful prosecution, they would likely take your case on a no-win no-fee basis.
This would mean the personal injury solicitor taking on the expenses in pursuing your claim. If successful, they would likely be able to recoup these from the defendant. They would also look to take a share of any compensation awarded. This is in effect their risk payment, because even the strongest personal injury claims can fall by the wayside for a variety of reasons.
Where there’s blame, there’s a claim
marketing campaign of years gone by, probably did more damage to the reputation of the sector than many could ever have imagined. This generalisation fails to take into account extenuating circumstances or the legal difference between blame and negligence. Unsurprisingly, this campaign attracted a range of spurious personal injury claims, from which the industry took many years to recover.
It’s not all about the money
There is a general misconception that the whole personal injury claims market revolves around compensation. However, the personal injury claims market goes much deeper than this.
Holding negligent parties to account
Imagine the scenario, time after time; employees at a business suffer the same injuries as a consequence of negligence by their employer. This may be problems with the working environment, lack of training or substandard equipment. Unfortunately, the majority of employers will only respond and make changes where there is potential for a significant financial hit. Money does talk!
So, if employees injured in this scenario failed to take action against their employer, this would just continue forever and a day. This is a rather one size fits all definition, but it gives you an idea of the power of the personal injury claims market. Laws literally have been changed and new regulations introduced.
Action taken today, by an employee subjected to an injury as a consequence of negligence, can have a long-term impact. As a result of changes introduced by the employer, this may save an employee from injury tomorrow, next week, next month, etc. The cumulative impact of holding negligent third parties to account should not be underestimated.
In reality, we all know in our heart of hearts whether a personal injury claim we are pursuing is spurious. It can become a little more difficult where the lines are blurred; there is confusion and concern about duties of care for all parties. While ultimately it will be the claimant’s decision whether to pursue a claim, no-win no-fee personal injury claims companies act as a very important filter.
As we touched on above, they would not take on a no-win no-fee claim unless there was at least, in their mind, a good chance of success. Indirectly, this is one of the main filters which prevent the wasting of court time. So, if you believe you have been the victim of negligence by one or more parties, resulting in injury, there is no harm in asking the question. When you are presented with the legal duties of care for each party, you may just be able to see the woods for the trees. You may have a very strong claim!