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.
It is necessary to prove that the act or omission by the third party caused the harm complained of by the victim.
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.
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: –
Represents compensation for the value of items that are difficult to calculate on a strict mathematical basis and require a degree of assessment.
Represents compensation for items that can be calculated with a reasonable degree of mathematical certainty and do not require assessment.
This item is often not included in either of the two previous categories as it often has characteristics of both.
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 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
Motor Insurance Bureau
Consumer Protection Act 1987
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
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
Appraisal of Issues
Investigation and research
Drafting of pleadings
Damages and interest calculation
Utilising expert witnesses
Persons under a disability
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:
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