Claim Vs No Claim

by Julian White

In establishing whether or not a claimant has a chance of being awarded compensation after an accident it is important to consider each element that has contributed to it and the surrounding conditions.

When considering an accident claim it is vital to have the basic elements of liability in the tort of negligence. The three elements that make up negligence are:

  1. Legal Duty
  2. A breach of that duty
  3. Damage suffered as a result of that breach

These elements overlap and cannot be considered in isolation.

A claimant must prove that they were owed a duty of care by the defendant in the circumstances of the case. This can be quite simple in a road traffic accident where every road user owes a legal duty to others. In addition employers to their employees. However in more complex situations this duty can be harder to prove.

A ‘neighbour principle’ was formulated in the case of Donoghue v Stevenson [1932] AC 562 in which persons who are so closely and directly affected can be owed a legal duty.

In relation to the breach of duty this concerns the defendant’s behaviour which actually causes the claimant’s injuries. This is based on the ‘reasonable man’ test and whether the defendant has acted in accordance with the general standard of this hypothetical person.

In many cases, like in road traffic claims it will be fairly easy to identify that a duty has been breached. i.e a driver of a lorry crashing into the car in front while they are texting on their mobile phone.

However, there will be other cases where this is less clear cut and proving that a breach has occurred will involve complex investigations. To be successful in an accident claim this is the main hurdle to over come.

In common with many other torts, such as nuisance, negligence does require proof of damage. The burden of this proof falls on the claimant and he/she must show that the injury is as a result of the defendant’s breach of duty.

An element that goes hand in hand with damage is the issue of causation. This is the ‘but for’ test which usually involves asking a simple question. Would the claimant have suffered the damage ‘but for’ the defendant’s actions? An answer in the negative means that it is likely that the defendant’s wrong caused the claimant’s damage.

The proof of causation rests with the claimant and this can become problematic when there are intervening acts which contribute to the injury. These situations are usually decided by the courts on the facts available.

In trying to establish whether a claim has good prospects of success all of the above factors should be considered. However it is impossible to generalise on all cases and each will be judged on its own merits.

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