There seems to be a general misconception that there is no such thing as an “accident” these days and all incidents are the responsibility of one or more parties. This then moves us on to negligence, liability and potential compensation payments for injuries received. However, there is a very clear legal distinction between a simple accident and an accident caused by negligence. As a consequence, not all accidents and injuries received will lead to successful prosecutions for compensation.
Definition Of An Accident
The simplest way to define an accident is:-
“An incident which nobody could have reasonably foreseen and for which no-one should be held responsible.”
In reality, no matter how severe the injuries received as a consequence of a genuine accident are, it will be impossible to win compensation. The assumption that the more severe the injuries the more chance of a successful prosecution are not reflected in UK law. This now moves us on to the concept of negligence and how it originated.
Definition Of Negligence
Many people will be unaware that the concept of negligence dates back to the 1930s and specifically the House of Lords case, Donoghue versus Stevenson. While the House of Lords is often on the end of negative press comments, it has a vital role to play in the legal profession. So, what is the basis upon which negligence is defined today?
During the ruling for on this specific case, Lord Atkin explained in great detail that the law relating to complaints and their remedies is limited. Central to this ruling is a statement that you:-
“Must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
This covers the issue of reasonable actions, but what about the definition of your neighbour? This prompted another defining statement, which is still valid nearly 100 years later. During the course of the legal ruling your neighbour was loosely defined as:-
“People so closely and directly affected by what you do or don’t do, that you should bear the impact of your actions on them in mind.”
In reality, your neighbour is anyone you come into contact with both directly (and in some cases indirectly). So we are looking at the likes of employers, property owners, taxi drivers and even employees, to name but a few. While much of the focus tends to be on employers it is worth remembering that employees do also have a legal obligation to ensure the well-being of “their neighbours”.
Risk assessments are an integral part of the personal injury claims industry and can be used to prove or disprove negligence. Contrary to popular belief, not all risk assessments need to be in a written format but when looking back it can be helpful to have physical records. The level of risk assessment will depend upon the specific situation and the consideration of what could/may go wrong. If we look at some examples this will give you an idea of what is deemed reasonable and fair.
Taxi driver taking customers to a music concert
In theory, this type of action is fairly straightforward but once you see the issues to take into consideration, and how to combat them, it does become a little more complicated. So, let us assume you are taking a group of people to see a concert in a commercial minibus. There are many things to consider, such as:-
- Is the vehicle roadworthy?
- Is there sufficient fuel for the journey?
- Will the passengers be safe?
- Have you mapped the journey correctly?
Now that you have identified potential issues which may occur, the next step is to take precautions to reasonably avoid these issues. There is an array of simple actions you can take to avoid these potential dangers such as:-
- Checking the vehicle is roadworthy
- Ensuring there is sufficient fuel for the journey
- Checking passenger seat belts are fitted – where legally required
- Adding warning notices such as passengers must refrain from drinking alcohol in the vehicle
- Map the journey using a SatNav
In this instance it is fair to say that the actions required to avoid placing the passengers in danger are fairly straightforward. As these are “commonsense” actions there is no requirement to document them but this does not mean they are not important. From a commonsense angle, you may be liable to compensation if your passengers missed the event due to your negligence, i.e., not knowing where you were going. On the flip-side, being late because of a road accident causing an extended detour could not reasonably have been forecast. However, injuries received as a consequence of a non-roadworthy vehicle or driver negligence could lead to significant compensation claims.
If a taxi driver has taken all reasonable precautions to avoid accidents and injuries they may well be able to fight any claims for compensation.
As the laws defining negligence/liability have been tightened in recent times this has led to increased concerns regarding the likes of school excursions. Many years ago they were an integral part of the curriculum. Whether a trip to France to sample an overseas culture, camping in the woods or a visit to a museum or art gallery these all helped to expand life experiences and build confidence. So, let us assume that there is a school excursion involving 50 pupils who will be camping in the woods.
There are many issues to take into consideration before such an excursion can be planned. While there are many other areas to consider the following list gives you an idea of the type of risk assessments required.
- Is the area safe?
- Do any pupils have medical issues?
- What is the weather forecast for the area?
- Is the equipment appropriate for the type of excursion?
- Have pupils been briefed on health and safety?
- Will communications such as mobile phones work in the area?
- If the excursion has to be aborted is there a safe area nearby?
- Have pupils been briefed on clothing requirements?
- Are there reasonable safeguards to ensure pupils do not wander off?
In reality, the type of risk assessment required for a school excursion can be especially complex. The teachers and helpers on the excursions are effectively temporary guardians due to the age of the children. Where the situation is a little more complex there is a legal requirement to keep written risk assessments and put backup procedures in place. To ensure the safe well-being of students, as well as adults assisting with the excursion, the following issues would likely be considered:-
- Detailed behaviour guidelines for students and adults
- Detailed itinerary
- A list of appropriate clothing for all weather related eventualities
- A detailed weather forecast for the region
- A list of student medical issues and medication requirements
- A detailed assessment of the area, is it safe, etc
- Various lines of communication required as backup
- Backup plan in the event that an excursion has to be aborted
- Detailed health and safety guidelines for students
Unfortunately, there is no foolproof way to protect students and adults at all times. All a school can do is to take reasonable precautions to address potential dangers. In the past we have seen students taken on excursions which have in hindsight turned out to be relatively dangerous such as skiing holidays. Unless the appropriate precautionary actions were taken to avoid, for example, avalanches, this could leave the school authorities, excursion organisers and those looking after students, facing potential claims of negligence.
Compare And Contrast Reasonable Actions
As we touched on above, where children are involved there is a higher standard of “reasonable behaviour” expected simply because of their age. In other situations, for example that of a diving instructor, the courts would consider whether a similarly qualified/experienced individual would have taken the same course of action. This is where your personal injury solicitor can use their experience to build a case, call professional witnesses and ensure that the actions taken, which resulted in accident/injuries, were unreasonable and therefore negligent.
Many people are surprised at the commonsense approach taken by the legal profession when it comes to personal injury claims. If a defendant can show they took reasonable precautions to avoid potential dangers then there may not even have a case to answer. The idea that the legal system is tilted towards victims is a common misconception as both the defendant and the claimant will have the opportunity to present their case.
So, many people will be surprised to learn that there are still such things as “accidents” where there is no negligence and no liability for compensation. Very rarely do these types of cases make it to the courts as personal injury solicitors, often working on a No Win No Fee basis, will take a realistic approach to such claims. It is also fair to say that the courts do not appreciate their time being taken up by cases which obviously have little foundation in law.
If you are concerned about potential dangers in your workplace, or any other scenario, you can help cover your back with a detailed risk assessment. Assessing the potential dangers and taking reasonable precautions can often help to avoid claims of negligence and as a consequence liability for compensation.