In this weeks blog post we will be covering the grey area of shared negligence as well as small claims and regulatory changes, which are under attack within the Houses of Parliament. Despite the fact that the UK government had seemingly pushed through an array of changes, due to go live in 2019, there seems to be a growing backlash within the Houses of Parliament. However, before we look at the regulatory disputes within Parliament, what do you need to know about shared negligence?
Can I Claim If I’m Partially To Blame?
Unfortunately, many people involved in accidents in and outside of the workplace often decide not to pursue compensation because they were partially to blame. There seems to be a general understanding that where the victim is partially to blame it is a waste of time and money to pursue compensation from other parties (negligent parties). However, even if you are partially to blame for an accident you may still have a case against a third party.
Health And Safety At Work Act 1974
As the vast majority of accidents seem to happen in the workplace, it is worth noting the Health and Safety at Work Act 1974 which places a legal obligation on your employer with regards to your health and safety in the workplace. This involves an array of issues such as:-
- Initial and continuous training
- Provision of appropriate safety equipment
- Provision of appropriate safety clothing
- Implementation of safety guards on machinery
- Matching an individual’s experience with an appropriate work-related task
It is not difficult to see a number of potential issues with regards to this snapshot of legal obligations on behalf of an employer. If, for example, you were asked to do a specific task for which you had little or no experience then how can you be held wholly responsible in the event of an accident? This is the type of situation where your employer has a legal obligation to match an individual’s experience with a particular work-related task in hand. There may even be a case for compensation if an employee is forced to carry out tasks which are wholly inappropriate to their experience even if there is not an accident. In some cases this could be deemed to be a form of bullying and negligence on behalf of an employer.
In reality, many employees will agree to do tasks which are perhaps beyond their experience for fear of repercussions. Even if you agree to do such a task, this does not exempt your employer from their legal obligations regarding your health and safety – they can still be held to account.
Accidents In Public Places
There are many accidents which happen on public highways and byways which may well be the partial responsibility of the victim but other parties may well be negligible to a certain extent. If, for example, due to a local authority’s inability to clear snow-covered roads within a reasonable timeframe you lost control of your vehicle, you may be able to claim for any injuries received. Even though there might be other factors to take into consideration such as an inappropriate style of driving, compared to the weather conditions, that does not necessarily exempt the local authority for not clearing the roads in a reasonable timescale.
We have even seen situations where a victim has been involved in a car accident which was no fault of their own although their injuries were exaggerated because they were not wearing a seatbelt. It is fair to assume that in this situation the victim was partially to blame for the extent of their injuries but so was the third party that caused the accident. The reality is that if the accident had not happened then the individual, who was not wearing a seatbelt, would not have received any injuries. If you look at the matter in this light you can start to see the legal standpoint.
Shared Negligence
It goes without saying that where there is partial negligence on both sides each party might attempt to blame the other to a greater extent. The reality is that it is up to the courts to decide levels of negligence on behalf of all parties involved, including the victim, and apportion any compensation award accordingly. Those who automatically assume that because they were partially negligent, indeed partially responsible for their own injuries, there is not a case to answer are quite often missing out on valid compensation awards.
We can only guess, but there must be a large number of shared negligence compensation claims which never make it to court. Aside from the fact the victim is missing out on compensation for their injuries, the third parties involved are not being held to account. As a consequence, they are unlikely to make any major changes to their actions in the future which could put further people in danger of injury or death.
UK Government Battling To Save Small Claims Regulatory Changes
It is beginning to look as though the UK government will have a major battle on its hands to push through what many automatically assumed were straightforward regulatory changes to the personal injury claims market. The particular sticking point surrounds the issue of the small claims limit which is the point at which a compensation claim must move from the small claims courts to a more traditional court setting (where legal representation is more common).
The Association of British Insurers (ABI) is angry with the justice select committee in the Houses of Parliament. As seems to be the norm at the moment, third-party bodies are attempting to hold up UK government legislation as a means of forcing the government back to the negotiating table to deliver concessions. This issue surrounds plans to raise the small claims court limit up to £5000 which will effectively see those claiming relatively small amounts unable to claim legal aid. It also means that no-win no-fee arrangements are not cost effective especially where maximum injury compensation awards have been set in stone.
Alternative Suggestion
There is a line of thinking within the justice select committee that rather than introducing a £5000 upper limit, the small claims limit of £1000 should be indexed from 1999 onwards. The insurance industry believes this does not reflect the growing number and the growing level of claims in areas such as whiplash. Indeed the ABI believes that:-
“In addition to every pound paid in compensation to claimants, claimant lawyers get nearly 50p”.
On the flipside of the coin, the justice select committee was disparaging of ABI fraud data with a suggestion it may be giving an overinflated impression of the level of fraudulent activity. The ABI has responded to these claims reiterating its confidence in the data provided and the transparency offered.
Access To Legal Representation
On one hand, we have politicians looking to assist those who may not be able to afford legal representation when pursuing a claim under £5000. On the other hand, we have the insurance companies adamant that an increase in the small claims limit will reduce the activities of “over exuberant” claims management companies and reduce the number of fraudulent claims. Even though this is occurring at a relatively late stage of the regulatory process, there is a growing expectation that the UK government will be forced to reduce the maximum small claims limit.
In the event of a reduction, this would see more claimants able to obtain legal aid or work on a no-win no-fee arrangement with their claims management company. Those representing clients pursuing claims believe access to legal counsel is imperative in the UK legal system while those paying out on compensation claims see this as the easiest way to reduce fraudulent activity. It will be interesting to see how this situation pans out because there is no doubt that all parties have a reasonable argument. Could we be in for another compromise?
Summary
The UK government’s attempt to simplify the personal injury claims market is certainly hitting some choppy waters at the moment. Finding a balance between appropriate levels of legal representation against the level of costs reclaimed by claims management companies is not easy. It is also time the authorities looked towards the issue of shared negligence and the number of perfectly valid claims not pursued because of a widespread misunderstanding.
In many ways there seems to be a general reluctance to move forward into the modern era. However, limiting access to legal representation for those pursuing relatively small claims could in itself be seen as a form of discrimination.
