By Eoin P. Campbell, LL.B., Solicitor
This is, obviously, the first question that many clients will ask of their solicitor after they have been involved in an accident. In addressing this question, your solicitor will consider injuries or damages, negligence, and contributory negligence.
Injury or Damage
The first thing that is to be remembered when pursuing a personal injury claim is that it is in fact just that, a personal injury claim. The plaintiff (the person making the claim) must have sustained some form of injury, either physical or psychological as a result of the subject incident. Even where the other party, be it a driver, doctor, or employer has indeed acted negligently, even criminally so, it should be noted that with regard to the civil law a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proved to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.
If you have not sustained a personal injury in such an accident, you are of course still entitled to attempt to recover the costs of personal property etc. that may have been damaged or destroyed. The same principles apply, of course, i.e. the damage must have in fact occurred.
Negligence
The second factor to note is that the injury sustained must result from the negligence of someone who had a duty of care towards you at the time of and in the circumstances of the accident. For example an employer is expected to provide, within reason, a safe-working environment for his or her staff, a shop or restaurant owner his customers, a doctor his patient etc.
For example, if Brian falls down stairs in a restaurant and suffers a serious back injury, he may not be able to successfully claim against the restaurant owner if the stairs conform with all the required safety legislation and there has been no other negligent acts on the part of the defendant in relation to the accident. A court may well find that Brian’s injury was due to misfortune or his own carelessness and that therefore the proprietors of the restaurant cannot be held responsible for his loss. Your solicitor will advise in detail as to other situations where a ‘duty of care’ may exist.
Contributory Negligence
It may also be decided by the court, or indeed agreed between the parties that both the defendant and the plaintiff were partially at fault for the plaintiff’s injury and in such circumstance the principle of contributory negligence will apply.
Contributory negligence is the legal principle that an injured party i.e. the plaintiff may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions. When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded. Often for example it may be agreed that the plaintiff bore 25% of the responsibility for his or her accident while the defendant was responsible to a degree of 75%. In such circumstances, the plaintiff’s damages, assessed by the severity of his or her injury and loss, will be reduced by 25%
Negligence without an injury therefore, or alternatively an injury without negligence are not enough to pursue a successful personal injury compensation claim.
Summary
- To have a claim for personal injury compensation, you have to fulfil certain criteria.
- In order to have a claim, you must have sustained some form of injury.
- That injury must be due to the negligence or lack of care of another person.
- If you have a claim in which you contributed to your injuries by your own negligence, the amount of personal injury compensation you are awarded will be reduced.
- If you have any doubts about whether you have a claim for personal injury compensation, get a free assessment from our experienced personal injury claims solicitors.
It is important to note that each case is unique. If you have been involved in an accident resulting from the negligence of another and feel that you have a potential personal injury claim, you are advised to discuss all of the points raised in this article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.