In England and Wales, we have a “fault based” accident compensation system.
This means that even though you might have suffered quite serious injuries, there is no automatic right to obtaining damages.
So as to to win your accident compensation claim, the first hurdle is to try to prove:
- Somebody else has been negligent, and
- As a result of their negligence you suffered injury.
In order for your compensation claim to succeed on this basis, you must be able to answer ‘yes’ to the following 3 questions:
1 Did another party owe you a legal “duty of care”?
2 Was the other party in breach of that duty?
3 Was your injury caused as a result of that breach?
Alternatively, the other option is to establish that the other party was in breach of statutory duty, and your injury was caused as a result of that breach.
Duty of Care
Expressed simply, a legal duty of care is owed whenever certain acts or omissions might lead to another person suffering harm.
One such example is the duty owed by car drivers to avoid injuring other road users or pedestrians.
Another example would be the duty owed by an employer to an employee.
Was the other party in breach of that duty?
Proving breach generally involves showing that the person owing a duty of care failed to take steps to avoid injuring others.
Some examples are:
- A car accident, where the other driver was speeding
- An eye injury at work, because goggles were not provided
- Pavement tripping, because the flagstones were uneven or broken
- A back injury at work, when there was no lifting training or equipment
- Wrist or upper limb injuries developing while typing, where there were insufficient breaks (among other factors).
Sometimes, the other party will claim that you yourself caused your accident, in whole or in part, and as a result of this, your injury is partly your responsibility.
Contributory negligence, to use the legal term, is alleged quite commonly by defendants and their insurers in accident claims.
One example of contributory negligence occurs from time to time in car accidents causing a whiplash or back injury. If the injured person failed to wear a seatbelt at the time of the accident, then he or she will often be held partly to blame for their resultant injury.
Each accident is different, but as a general rule, if a court held that you were 50% to blame for your injury, then your compensation claim would be reduced in value by 50%.
Was your injury caused as a result of a breach of duty?
Usually there is no problem in linking the accident to your personal injury. But what about the following examples:
- Damage to your lungs in a dusty workplace, where you also happen to be a smoker
- Psychological injuries caused by a serious accident, where you have suffered previous psychological symptoms
- A back injury compensation claim, where you have a previous history of back trouble
- A whiplash injury in a road traffic accident, where you also happen to have been involved in a previous similar accident the previous year, and suffered an identical injury.
As can be seen from the above examples, defendants and insurers will often try to challenge your injury compensation claim on the basis of “causation”. In other words, they will allege that your personal injury was caused other than by their negligence.
Breach of statutory duty
Especially with workplace injury claims, there is a wide variety of health and safety legislation with which the employer must comply.
Such legislation covers areas as diverse as:
- The condition of floor and “traffic routes”
- Washing facilities
- Manual handling
- Work equipment
- Personal protective equipment
- Hazardous substances
- Display screen equipment.
“Breach of statutory duty” simply means that your injury can be attributed to a failure on the part of the employer in respect of one of the above areas where their obligations are governed by statute.