LAW OF NEGLIGENCE - PERSONAL INJURY CASES

The law of negligence so far as it relates to compensation claims has a long history going back almost a thousand years however modern concepts relating to personal injury damages and the right to claim against a third party on a basis other than contract is a relatively modern concept originating in the 20th century whereby it became possible for anyone injured in an accident to claim against a third party as opposed to just those who had a contractual relationship with that third party. Since the original ground breaking case the law has been substantially reformed and parts of it now rely on statute however the basic principles still apply to all personal injury cases including those involving medical negligence.

There are many definitions of this concept and the law of negligence has never been formally reduced to statutory definitions. Such definitions as there are have usually been stated by judges in the course of high profile personal injury cases usually in the court of appeal. The proposition may best be defined in any particular situation as ‘failing to do what a reasonable person would do or doing what a reasonable person would not do’. The most important part of any definition of this concept always revolves around the word ‘reasonable’.

The law of negligence relies on three basic propositions and in order to succeed in personal injury cases claimants must show the following elements :-

Duty of Care
This means that the victim must be owed a duty of care by the third party. Again this is a difficult concept however it is best explained by example :-

• all road users owe other road users a duty of care
• healthcare practitioners owe their patients a duty of care
• the owners of property owe guests a duty of care

Breach of the duty of care
Means that the third party has failed to take reasonable care to avoid acts or omissions that will cause harm to the victim.

Causation
It is necessary to prove that the act or omission by the third party actually caused the harm complained of by the victim.

Damage
Proof is needed that the victim has actually suffered harm by way of loss, damage or injury as a result of the behaviour of the third party.

Once the law of negligence has been used to establish liability most personal injury cases move on to an assessment of the award of damages. For the sake of convenience lawyers divide compensation that may be payable to the victim into several classes :-

General Damages
Represents compensation for the value of items that are difficult to calculate on a strict mathematical basis and require a degree of assessment.

Special Damages
Represents compensation for items that can be calculated with a reasobnable degree of mathematical certainty and do not require assessment.

Future Losses
This item is often not included in either of the two previous categories as it often has characteristics of both.

Interest
Is awarded on all categories of compensation but at different rates and for different periods dependent on the specific item.

Legal costs are usually awarded in favour of the winning side. The lawyers for the claimant in most accident claims insure the claimant against the possibility of losing the case and are thereby able to offer a risk free service.