Negligence

Negligence is where someone has acted carelessly towards you, causing you injury. This could be in the form of a road accident, or an unintentional act that has caused physical harm, such as an accident at work.

 

Law on Negligence

Negligence or carelessness is a breach of a legal duty of care owed to the Claimant (you) that results in harm, undesired by the Defendant (the person you are suing). For there to be a claim in Negligence, three elements must be met:

1 - Duty of care

It must be proved that the defendant owes you a legal duty of care. There are established duties, such as duties of care owed by drivers to passengers, doctors to patients, employers to employees and road-users to other road-users. There are also novel duties, which can lead to a duty of care if you establish that there is reasonable foresight of harm to you, there is a sufficiently close relationship between you and the Defendant, and it is fair, just and reasonable to impose this duty. Novel categories include, psychiatric illness, omissions, acts by third parties and public bodies.

2 - Breach of the duty

It must be proved that the defendant is legally at fault by not meeting the standard of care expected of them, which is usually that of a reasonable person. The degree of care expected is determined by looking at the size and likelihood of risk, and the cost and practicality of precautions. The burden of proof rests with you, on a balance of probabilities, usually by relying on witness statements. In addition, you may be able to rely on section 11 of the Civil Evidence Act 1968, which states that a Defendant who has been convicted of a criminal offence is presumed, in any subsequent civil proceeding to have committed that offence.

3 - Causation

It must be proved that the breach of duty caused you financial loss. The burden is on you to prove the causal link between the breach and the loss. A useful way of establishing this is to say: but for the Defendant’s breach, would the harm to you have occurred? Furthermore, to prove causation, it is important to show that the damage was reasonably foreseeable, which will hold even if the precise way in which it occurred, or the precise extent of the damage was not foreseeable.

 

Damages

The aim of compensation (damages) is to put you in the same position you would have been in if the event had not happened. There is also a duty on you to mitigate losses, meaning that you must take all reasonable steps to keep the losses you are claiming to a minimum. For example, if you unreasonably refuse medical treatment, you cannot recover damages for the harm that the treatment would have avoided. The court awards damages in the form of a single lump sum to cover current and future losses, but you cannot go back for a second claim if your injury gets worse.

 

If you are treated by the NHS, you cannot recover what it would have cost to have private treatment. However, the law does allow for recovery of the cost of services, such as nursing care and help with housework, but it must be reasonable. Furthermore, insurance payments, ill-health pensions and charitable payments (including ex gratia payments made by your employer) are not deducted from the damages which you receive. The Social Security (Recovery of Benefits Act 1997) deducts state benefits from certain kinds of damages, which are paid by the Defendant to the state, including compensation for lost earnings, cost of care and loss of mobility, however, benefits are not deductible from the claim for pain, suffering and loss of amenity. The purpose of this is to prevent over-compensation.

 

It can often be expensive to make a claim, thus you must weigh up whether it is financially in your best interest, especially if the Defendant is likely to be unable to pay compensation for your loss. You may be able to obtain financial support from an insurance policy to help cover legal costs (we suggest you check your household or drivers policy). You may be able to find a solicitor who will agree to a conditional fee agreement which means that the solicitor will not charge you anything if you lose your case, however these No win – No fee solicitors usually sting you with an insurance premium (which pays them if you lose) plus they will only take on cases where there is virtually 100% of the chance of success. if you lose you may still have to pay for the Defendant’s legal costs. Moreover, the time limit for bringing a claim is within three years of the injury.

 

How we can help

One of the issues with injury via negligence is proving fault, sometimes this is obvious, sometimes it is simply an accident. The criteria for a claim depends on proving an element of negligence. To gain our assistance you need to open a case, this is done by taking advantage of our free consultation service, activated by the link at the top of the page, should you wish to start a case the caseworker will send you the suitable payment link.

 

Your legal team will then examine the situation and make suitable recommendations, if they feel the case has merits then they will suggest appointing a medical consultant to assess your situation, they are privately contracted by us (and therefore their cost would be classed as a disbursement). To quantify the potential claim in regard to mental trauma we would suggest an additional report from our psychological team.

 

The claim will consider two types of damages:

• General damages- this compensates the victim for the pain and suffering endured, and for the loss of enjoyment of life as a result of the negligent act.
• Special damages- this compensates the victim for any personal costs incurred as a result of the negligent act. It can also cover any additional costs required in the future such as remedial surgery to remedy the mistake, mental suffering and so on.

 

Please note your caseworker can only give generic advice, their role is to prepare your details for handling by our legal team and medical consultant and to act as your point of contact, they will also issue you with your Password and PIN, these will be needed to log onto your client dashboard. From your dashboard you will be able to manage and view every aspect of your case, upload documents, images, files etc.