While there is a very strict legal structure with regards to personal injury claims, many people will be surprised to learn that common sense does apply. It is safe to say that the historic TV campaign “where there’s blame, there’s a claim” did not do much for the industry’s reputation. The suggestion was that any accident would result in a personal injury compensation claim while subtly ignoring common sense. Historically, there was a misconception that personal injury claim representatives would take on any case, no matter the strength, which again is untrue.
No Win No Fee Arrangements
In many ways the No Win No Fee arrangements on offer today perfectly illustrate the fact that common sense does prevail after all. The tipping point for No Win No Fee arrangements today is an estimated 60% chance of success which is understandable. If a personal injury claims expert was to take on a case and lose, there could be significant expenses to digest. There is also the fact that a successful claim would also bring about a share of compensation which would be agreed prior to taking on any case. Why spend time on sub-borderline cases?
In many ways a No Win No Fee arrangement is in fact a win-win for all parties. In the event that a personal injury claim is not taken on by a personal injury claims solicitor this would be because it is more likely to fail. In the event that a claim is taken on then it is more likely to succeed leading to:-
- A good chance of compensation for the defendant
- Appropriate use of the courts time
- Holding the defendant to account
- Changes to avoid similar accidents in the future
In effect personal injury claim solicitors are a type of barometer for the legal profession and the first line of defence when tackling potentially fraudulent claims. It is the role of a solicitor to be upfront and honest so that they are neither wasting their time or that of a possible client.
Taking Responsibility
When discussing personal injury claims, many people automatically assume where there is an accident there is a potential claim. Even if it was a legitimate accident, with no legal liability, many hold the view that there is always somebody to blame. So, let us take a look at some of the occasions where, for want of a better word, common sense tends to prevail.
Safety Procedures
Whether you’re walking down the street, dancing in a nightclub or attending a course at college, there is inherent risk in everything we do. In some cases the risks may be very small, in other cases potentially life-threatening but if safety procedures are mapped out, made available and make sense, use them. We have seen many claims over the years where claimants have suffered a variety of different injuries because they ignored safety procedures, predominantly in the workplace. So who is to blame?
If there are safety procedures to follow and these are ignored by the claimant this could significantly impact their case for compensation. It is impossible for an employer/business owner to keep an eye on all employees and all clients every second of the day. This is a perfect example where a claimant also has a responsibility to act appropriately and take heed of safety procedures.
Inexperienced Personnel
As we touched on above, a significant number of personal injury claims each year emanate from the workplace. We have seen situations where employees have been given tasks for which they have insufficient experience. As we have mentioned on numerous occasions, it is the legal obligation of all employers to ensure the well-being of their employees. One of the most basic elements of this obligation is to match experienced personnel with specific tasks no matter how simple they may appear. What is simple to one employee may well be difficult for another if they have not had the relevant training and lack the appropriate experience.
There is an argument to suggest that mental pressure experienced by those given tasks they are not qualified for could also be classed as a type of injury. We know that constant pressure can cause an array of mental/physical ailments and lead to a change in personality/standard of living. It is worth noting that the courts do not see injuries as just physical and will treat psychological scars in a similar manner.
Inappropriate Clothing/Inappropriate Use Of Equipment
A number of personal injury claims can often be traced back to the wearing of inappropriate clothing or inappropriate use of equipment. Again, as long as an employer is able to show documentary evidence that all employees were given the correct clothing, and training on the appropriate equipment, they may well be able to avoid a compensation claim. This may be as simple as wearing the wrong type of boots when working in a factory leading to a trip, slip or fall and injury.
We have also seen many claimants ignoring safety equipment on machinery and then attempting to claim compensation when they are injured. Sometimes this area can be a little tricky because if an employer was aware that a particular employee was ignoring safety procedures, should they have acted? There may be a legal argument to suggest that health and safety regulations should have seen the employee removed from the situation and warned/retrained.
Pedestrians
While it is fair to say that the authorities have significantly reduced road traffic accidents over the last 20 years, there are still many claims relating to injuries from this type of situation. Again, common sense suggests that pedestrians as well as drivers have an obligation to act in an appropriate manner and ensure the safe well-being of those in their vicinity. This responsibility can also be extended to passengers in a vehicle who may distract the driver with their activities. How can you blame the driver of a vehicle if a pedestrian steps out into the road, into their path, while they are travelling within the legal speed limit? Well, it seems you can which begs the question, did the judge use common sense?
There may well be an argument to suggest that the driver should have been more aware of pedestrians around them. However, the contrary argument would be that the pedestrian should have made sure that the road was clear and safe before stepping out. Sometimes these types of incident can also be complicated if the vehicle was not roadworthy or had a particular fault. In this situation, even if the driver was not at fault for the accident they may well have a case to answer if their vehicle was not road worthy.
What Would A Similar Party Have Done?
When looking at professions such as doctors, plastic surgeons and similar roles, injury claims can become extremely complex and difficult for many people to follow. In the event of action taken during an operation which resulted in an injury the doctor/surgeon may well be able to justify their decision making process. In many cases their defence would be to ask a similarly experienced doctor/surgeon what they would have done in the same situation.
If the third party would have acted in a similar manner then negligence and liability may be reduced or thrown out of court. On the flipside, if the expert witness would have taken another path, possibly to avoid injury, then there may well be a case to answer. Where compensation claims become a little more complicated and specialised it often comes down to how a similarly experienced practitioner would have reacted in the same situation.
Protection For All Parties
On the face of it, personal injury claims might appear to favour claimants over defendants but this is not the case. Courts simply take away the emotion of an incident, review the facts and then come to a reasonable conclusion. In many ways the value of a court, when claiming compensation, is the lack of emotion and focus on simple facts. There have been many occasions where defendants have been afforded a degree of protection in court from blatantly dubious claims. Indeed, there have also been incidents where claims deemed fraudulent have actually resulted in the claimant receiving a jail sentence.
We have seen an attempt to reduce the number of fraudulent claims by restricting access to legal aid as well as reducing maximum compensation for certain types of injuries. This together with the fact that solicitors would walk away from borderline/dubious cases is assisting with the ongoing fight against fraud.
Conclusion
You may be surprised to learn that many courts take a common sense approach to personal injury compensation claims. They will strip away the emotion, look at the legal facts and take into account how the defendant, claimant and other relevant parties acted. We have seen cases where negligence has been proven but only limited liability has been recognised. It may well be that liability has been shared with the claimant where they were deemed to be partially responsible.
The vast majority of personal injury compensation claims will not make it beyond the court steps. The trend today tends to be one of negotiation where negligence is obvious after which it is simply a case of proving the degree of liability and agreeing compensation. There is obviously a degree of common sense when it comes to these negotiations with neither party particularly keen to go before the courts.
