Personal injury and the claims culture – when and how are you considered negligent?

Many clients have seen claims made against them and also many others simply operate in fear of being sued for some negligence that they may or may not have caused.  When someone, an employee or a member of the public, slips, trips or otherwise hurts themselves the phrase “where’s there’s a blame there’s a claim” seems to appear from a by stander so the what’s the truth about this negligence and what about your liability?

“Negligence” is defined as a failure to exercise the level of care which a reasonably prudent person would do in similar circumstances.  In other words you must have acted reasonably to prevent such harm occurring and it should have been reasonably foreseeable.

In order to successfully claim compensation for negligence the injured party (claimant) must satisfy the following three tests.

• The claimant must demonstrate that they were owed a duty of care by the defendant.
• It must be proved that the duty of care was breached.
• The breach of duty must have caused the harm, damage or other loss for which compensation is claimed.

Test 1: was a duty of care owed?

Numerous cases and legislation over the years have established who owes a duty of care to whom. This includes employers towards employees and occupiers towards visitors, for example.

Test 2: was duty of care breached?

Assuming that Test 1 has been passed, the next consideration is whether there was a breach of duty. For this the claimant needs to show that the defendant knew, or should have known, that they were placing them at substantial risk. One of the proofs required is that the injury or damage caused was “foreseeable”.
A defence which is sometimes successful is to show how many thousands of times the particular activity has been carried out without any sign of danger, i.e. it wasn’t foreseeable.

Test 3: causation

Many cases fail because the injured party isn’t able to show that the breach of duty was the particular cause of their injury.

Case Law
In Sutton v Syston Rugby Football Club 2012, the Court of Appeal found that the rugby club was not liable for a player’s injury. The club had owed a duty of care to the player (Test 1) and had breached that duty when it failed to conduct a pitch inspection (Test 2). However, the claimant failed to prove that the pitch inspection would have identified the obstacle in the grass which caused the injury, i.e. Test 3.

When you pass details of a potential claim to your insurers, give them detailed information about any positive steps taken to prevent the accident (even if they didn’t prove effective in this particular case), e.g. training, inspections, maintenance etc. This is key in determining if the claim can be defended.