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 used by negligence solicitors 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 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’.

 

Principles of Negligence

 

The law of negligence relies on three basic propositions and in order for negligence solicitors 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 caused the harm complained of by the victim.

 

Damage

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

 

Compensation

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 reasonable 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

 

Legal costs are usually awarded in favour of the winning side. The negligence solicitor for the claimant in most legal action including medical negligence claims insure the claimant against the possibility of losing the case and are thereby able to offer a risk-free service.

 

PERSONAL INJURY SOLICITORS

Operating on a no win no fee basis most personal injury solicitors deal exclusively with accident compensation claims. By using the no win no fee scheme, you totally remove any personal need to financially support your claim. The negligence solicitor usually pays all legal expenses as the case proceeds. Compensation is paid with no deductions. Win or lose there is no charge. Most negligence solicitors are members of the Solicitors Regulation Authority panel of personal injury experts or the medical negligence expert panel and are happy to give you free advice with no obligation to pursue your claim.

 

Only a lawyer who is a member of the Solicitors Regulation Authority panel can use the title of personal injury specialist and similarly for medical negligence.

Membership of the personal injury panel requires detailed knowledge and personal experience of:-

 

Areas of Law:

 

Occupiers Liability Act

Road Traffic Acts

Common Law of Negligence

Civil Evidence Acts 1968 and 1971

Contributory Negligence

Motor Insurance Bureau

Consumer Protection Act 1987

Employers Liability

Vicarious Liability

Health and Safety at Work Act

Knowledge of the relationship between injury work and social security benefits

Fatal Accident Act 1976

Relevant European Community legislation

 

Issues of Ethics:

 

disclosure of medical reports

use of expert witnesses

conflict;

acting for a client when previously acted for that client’s employer who is a party to the proceedings

receiving opponent solicitor’s papers by mistake

instructing an expert witness who was previously a client

acting for a driver and passengers in connection with a road accident

 

Professional Skills

 

    General Skills

Drafting

Interviewing

Advising Clients

Negotiation

Appraisal of Issues

 

    Specialist Skills

Case Management

Investigation and research

Drafting of pleadings

Damages and interest calculation

Utilising expert witnesses

Persons under a disability

 

    Advocacy Skills

Panel members are expected to demonstrate a commitment to take appropriate cases to a full hearing

 

Most personal injury specialist lawyers undergo rigorous screening procedures to ensure that they satisfy the requirements for selection into the Solicitors Regulation Authority Panel of experts. In addition to personal requirements, the firm that the solicitor works for must also be of a high standard and typically must implement such systems as:

the accurate monitoring of the progress of claims

an adequate check on:

limitation periods

time for issue of writ or summons

time for service of the claim form

compliance with interim time limits

inactivity on case files

an experienced back up solicitor to also monitor cases

the existence an adequate reference system

monitoring potential conflicts of interest between clients

monitoring solicitors’ undertakings

compliance with the Disability Discrimination Act 1995

adequate organisation of correspondence, documents, reports, pleadings, etc within a file

the availability of sources of information in respect of selecting professional experts

an adequate library including relevant books and journals

adequate training and monitoring of continuing professional development