If you are injured and intend to seek compensation for negligence, accident and injury law requires that you:
- prove you have been injured;
- establish your injury is either completely or partially someone else’s fault;
- participate in the process of determining the damages that you can collect from the person responsible for the injury, and follow the procedures by which you claim them.
An injury can involve physical or mental harm, or both.
To make a successful claim and recover damages, an injured person needs to demonstrate that she has been injured and provide evidence of the severity of the injury. Although this may be self-evident in some cases, from a legal perspective the most important evidence of the injury is the medical report.
Ordinarily, when a person comes to a solicitor with a view to making a claim for an injury, the solicitor will arrange for her to obtain a medical report, which will describe the severity of the injury and its apparent cause. If the injured person has already had treatment for the injury (which is likely) then the medical report may take into account notes of the treatment, records from casualty, and so forth.
Some injuries are difficult for a medical examiner to ascertain. For instance, the severity of a mental injury such as post-traumatic stress disorder may only be apparent to a medical examiner who specialises in such injuries.
In many cases, a person who is defending a claim for personal injury will want his own expert to examine the injured person. So as part of the claims process, the injured person will need to undergo a separate examination by the defendant’s medical examiner.
Even in cases that are settled before they reach the court (and the majority of cases do settle), the parties to the claims process nevertheless try to document the injury as if they were taking the case to court. Frequently the defendant in a personal injury case is an insurance company, which for its own purposes will need a complete record of the injury before it agrees to pay out a claim.
2. Fault and liability
To claim and recover damages from another person, an injured person must establish that the other person is at fault.
In most accident and injury cases, negligence is the legal concept that is key to establishing fault. In broad terms, someone is negligent if he fails to act as a reasonable and prudent person would have acted in the circumstances in question. For instance, a shopkeeper who is aware that a rickety shelf full of canned goods is likely to fall over at any moment would be negligent if he permitted customers to go up to the shelf to get their tinned tomatoes as if nothing were wrong with it.
Apart from negligence, the concept of statutory duty of care is also important in many accident and injury cases. This comes into play where, for instance, a person has a duty imposed by statute to provide a safe environment. Many of the health and safety laws relating to the workplace impose an express, statutory duty on employers to take certain safety measures. If an employer fails to do so, and an employee is injured as a result, the fact that the employer was in breach of his statutory duty of care will put him at fault.
A person could also be at fault for intentionally causing injury. So in a criminal case where the defendant has injured a person by physically beating him, the defendant’s intentional action will establish fault.
Sometimes in personal injury cases, the defendant will admit liability early on, so that the process becomes concerned with the amount (or “quantum”) of damages rather than who is at fault.
In other cases, the defendant will contest the issue, and require the claimant to prove that the defendant was liable. If the claimant cannot demonstrate to the defendant that a court would likely find the defendant to be at fault for the injury, then the parties may have to go to court to resolve the issue at trial.
Frequently, a defendant will say that although he bears some of the blame for the injury, the injured person also partially at fault. The legal phase for this is contributory negligence. The idea is that the injured person did not herself act as a reasonable and prudent person would have done — for instance, despite seeing the rickety shelf full of tinned vegetables begin to lean and fall, the injured person rushed up to it in an attempt to grab a can of tomato paste before the whole thing ended up on the floor.
In addition to the injured person and defendant agreeing on how fault should be apportioned (or, failing agreement, the court deciding it) there is the question of how much the defendant must pay the injured person in damages.
Damages fall into two categories: general damages or special damages. General damages compensate the victim for any non-monetary harm suffered, such as for pain and suffering; while special damages cover quantifiable financial losses, such as past, present and future medical costs or loss of earnings.
In deciding the level of general damages for a particular type of injury, the courts ordinarily look to a publication known as the Judicial Standards Board Guidelines for the Assessment of Damages in Personal Injury Cases. The Guidelines include detailed information about the appropriate level of damages for many different types of injuries. Since solicitors know that judges invariably refer to the Guidelines when cases end up in court, they take careful note of them in negotiating and attempting to settle claims before they proceed to trial.
4. Limitation period
If an injured person is going to sue in the courts, he must bring his lawsuit within three years of the date that the injury occurred.
For injuries that are not acute, but come on gradually — for instance, hearing loss resulting from a noisy workplace — the three year period begins to run from the date that the injured person first knew or should have known about the injury.
If the injured person is under the age of 18, the three year period does not begin to run until the person turns 18.
And if the injured person has died, his personal representatives (which are the executors or administrators of his estate) have three years from the date of death to sue — provided, of course, the three year period did not expire during the person’s lifetime.
Frequently, if a claimant and defendant cannot negotiate a prompt settlement, and the three year deadline is getting close, an injured person’s solicitor will recommend that he issue legal proceedings in order to prevent the limitation period from expiring.
Accident and injury claims can be complicated and you need to be mindful of the three year limitation period.
You should get legal advice as early in the claims process as possible. This is especially true if the person who caused the injury (or his insurer) is pressuring you to settle your claim quickly.
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