A Guide to Negligence Law

In English law the law of tort allows you to claim compensation for whiplash if you are involved in a car or motorcycle accident. But what does this law say, and how did it come into existence?

The law of negligence means that in certain situations one person owes a duty of care to another person to not cause them any harm or injury. If that person subsequently does something, or fails to do something, and that action or inaction causes injury to the other person, they are entitled to claim compnensation for the damage (the injury or the losses and expenses in a whiplash claim).

To understand the law of negligence in relation to a whiplash claim it is easiest to use a case study. If Mrs A is stationary in a queue of traffic leading onto a roundabout, she is in a car and she owes a duty of care to all other road users. Likewise, any vehicles behind Mrs A owe a duty of care not to cause harm to her. If Mr B drives up behind Mrs A and fails to stop in time, crashing into the rear of her car, he has breached this duty of care. If this breach has led to damage or injury to Mrs A, she can claim compensation for these losses from Mr B (or in reality his insurance company).

The Losses or Injury Must Be Caused By The Breach of Duty of Care

In the above example, if Mrs A subsequently experienced neck and back pain, the next step in esablishing that she could make a claim for compensation would be to prove that the injuries she sustained were caused by Mr B driving into the back of her car. In theory this is very straightforward, as if she was not injured before and was afterwards, her injuries seem to have been caused by the accident. However, medical evidence is needed to prove that the breach of duty of care did lead to the whiplash injuries to Mrs A. If on obtaining the medical notes for Mrs A it is discovered that she already had bad neck and back pain, a medical expert will have to say whether the pain now has been made worse by the car accident. Unless his evidence confirms this to be the case, Mrs A will have failed to establish that Mr B’s breach of duty or care has caused her injuries, and will not be able to claim compensation.

Summary

To prove negligence to be able to make a claim for compensation for whiplash, a person must prove that another person owed them a duty of care, that they breached this duty of care, AND that this breach of the duty of care caused the first person to suffer injuries or losses. Only then will they be entitled to claim compensation.

If you have been involved in a car or motorcycle accident that has led to a whiplash claim, you might be accused of contributing to the cause of the accident: the correct legal term for this being “contributory negligence”. Here we look at the possible causes of contributory negligence and whether it prevents you from making a whiplash claim or other claim for compensation.

What is contributory negligence?

To be able to make a claim for compensation for whiplash you first need to prove that someone else was totally or largely to blame for that accident. The law of tort says that you must prove:

* That someone owed you a duty of care (to drive carefully and not to cause damage to you or your vehicle)

* That someone has breached that duty of care (ie they drove into you)

* And that driving into you has caused damage, injury or loss (causation)

If they can prove all of these points they can make a claim for compensation. However, that claim for compensation can still be reduced in amount if the other driver can prove that you were partially responsible for the accident. If they can prove that you were 50% responsible for the accident, then your total claim for compensation would be reduced by 50%, meaning that if the total claim was initially for £10,000, it would be reduced to £5,000. Therefore, contributory negligence can have a serious impact on the total amount of your whiplash claim.

Types of Contributory Negligence

There can be a large number of causes of contributory negligence. For example, somebody driving into the back of you when you are stationary normally leads to a straightforward claim for compensation for your whiplash injury. However, if the other driver can prove that you were braking and your brake lights were not working, he may be able to reduce or completely remove his liability for compensation to you. Each case is looked at on the evidence and your solicitor will advise you on this in detail. It is your solicitor’s duty to obtain evidence to support your claim and also to rebut any claim against you for contributory negligence by the other driver’s solicitor.

Failing to wear a seat belt

There is one area where you will always be guilty of contributory negligence:- failing to wear a seatbelt. If you make a whiplash claim and the other driver can prove that you were not wearing a seatbelt when the accident took place, your total claim for compensation will normally be reduced by 25%. Therefore, not only should you wear a seatbelt to comply with the law and to protect yourself in the event of an accident, but it also saves you losing one quarter of your compensation if you subsequently make a claim for compensation.

Another example of contributory negligence is failing to wear a helmet on a bicycle, or failing to use a guard on machinery at work when you have been trained to do so.

For further information regarding Negligence Claims please visit our website.

Cerebral Palsy Compensation – Guide to Bringing a Claim for Clinical Negligence

Pursuing a claim for clinical negligence compensation can be a daunting experience at the best of times but particularly so when it involves a child. Cerebral Palsy cases will usually be commenced on behalf of a child by his or her parents. This means that as well as dealing with the day to day realities of having a child with Cerebral Palsy as the parent you may also be primarily responsible for instructing solicitors to investigate a compensation claim.

Cerebral Palsy claims are complex and often take many years to investigate. It is therefore helpful to know exactly what is involved in pursuing such a claim and to understand the steps that need to be followed.

Funding 

To begin with it is necessary to sort out how the case is going to be funded. This is vitally important because the legal costs involved in investigating a case are likely to be extensive. Most cases involving claims for Cerebral Palsy will be eligible for public funding (formerly called legal aid). Your solicitor will generally make an application for funding on behalf of your child. Initially funding will be provided to carry out investigations to determine whether or not there is a viable case for negligence.

 

The Process of Investigating a Case Medical records

Once your solicitor is in receipt of all of the relevant notes and records they will need to be reviewed and placed into their correct chronological order. It will be necessary to make sure that all of the records have been properly provided.

 

Statements

It is important to take a detailed and accurate account of events. Your solicitor will go through the details of the pregnancy, labour and postnatal period in order to get a full account of exactly what happened. A statement will then be prepared which will be used to assist your solicitor and the experts as the case goes forwards.

It is usually best to provide a statement as soon as practically possible so as to avoid difficulties later on when memories may have faded. The statement will undoubtedly require amending and adding to as the case progresses.

As well as taking a statement from the mother of the child it may also be necessary to get a statement from any other witnesses to events such as from the father or grandparent as they may have noticed something which the mother did not.

 

Experts

In order to prove negligence it is necessary to establish that there has been a breach of duty, that the child has suffered an injury and that the injury was caused as a direct result of the breach of duty.

In order to prove these things independent expert evidence is required from an appropriately qualified medical expert to say whether or not the treatment provided by the defendant was inadequate and whether as a result of that inadequate treatment injury has occurred.

The nature of Cerebral Palsy cases means that it will be necessary for more than just one type of medical expert to be instructed to deal with these elements of the case.

Typically, the first type of expert to be instructed is a Consultant Obstetrician/Gynaecologist who will review and consider the prenatal treatment provided as well as the treatment provided during the labour and birth.

Thereafter, it may be necessary to instruct a neonatologist and/or a neuro radiologist to consider the care and treatment provided to the child immediately after the birth.

The experts will be specifically requested to advise as to whether in their expert opinion the care and treatment provided to the child either pre-or post birth fell below a reasonable standard.  They will review the CTG traces to see if their was evidence that the baby’s heart rate was increased or decreased rapidly which is an indicator the baby may be in distress. If the expert evidence supports that the treatment provided was below a reasonable standard and that there has been a breach of duty further evidence will be required in relation to the injury itself.

It may be necessary at that stage to instruct a Paediatric Neurologist to consider the nature of the brain injury and whether this was caused as a direct result of the breach of duty (negligent medical care).

Provided that the reports from the medical experts support a claim for negligence it will then be appropriate to obtain further expert reports dealing with the child’s long-term condition and prognosis. These subsequent reports will assist in valuing the case and it is likely that reports may be required from some or all of the following specialists:

Occupational Therapist

Care Expert

Accommodation Expert

Employment Expert

Paediatric Neurologist

Paediatrician

Physiotherapist

 

Barristers

Given the complexities of a Cerebral Palsy case a Barrister will be required to assist in advising upon the case at various stages throughout. It is likely that you will need to attend conferences at various stages with the Barrister, Medical Experts and your solicitor. The Barrister will assist on the technical points of law involved in the case and will also advise in relation to the prospects of success. 

Notifying the Defendant of the claim

The Defendant (usually the hospital where the baby was born) will not be formally notified of the intended claim until supportive expert evidence has been obtained in the initial investigative period and until a conference has been held with the Barrister. It is not uncommon for this initial investigative process to take in the region of 18 months.

The defendant is formally notified of the claim by serving a ‘letter of claim’ on them. Thereafter they have a period of three months under the pre-action protocol to carry out their own investigations and provide their formal response stating whether or not they accept liability. Invariably in these cases the defendant will require more time to complete their investigations and it is reasonable for them to request this.

If the defendant admits liability, negotiations will be entered into to try to come to an agreement over the amount of compensation to be paid. However, if the defendant denies liability it will be necessary to revert to the Experts and the Barrister for their further comments and advice upon taking the case forward.

It may be necessary at that stage to consider commencing formal court proceedings.

Cerebral Palsy cases invariably take a long time to come to a final conclusion. This is largely because of their complexity and the fact that an immense amount of expert medical evidence is required to be able to properly address all of the necessary issues. It is important to be prepared for the length of time such a case is likely to take.

If you believe that you have been the victim of a medical error or negligence it may be possible to claim compensation. 

If you would like to discuss a possible claim please contact HeadInjuryUK who are specialist clinical negligence solicitors who will be able to offer you further advice and information.

 

 

 

 

 

 

  

 

Solicitor Lawyer Why Can They Guide You The Max

Relationships are a necessary part of human life. Living in a civilization means you are bound to make associations with others whether on the basis of business or for personal reasons. These relationships like all other man-made thing often fail to prove as long-lasting as we think. Therefore it is perfectly normal for a continuous stream of people trying to terminate these relations. As with all other things, even these relations can be considerably painlessly terminated with the help of a professional, like a solicitor lawyer.

There is no denying that human relationships are oftentimes very hard to build, and even then harder still to keep up with. It is also very much normal for these relationships to fall off like a sand castle. In cases such as these all parties try their level best to leave off with as much of the benefits as they can. Of course I you share your whole life with someone and find out that your relationship is at an end you too would want your life back.

A solicitor is someone we most usually call when a trade or contribution is at hand, this trade or contribution being not of the usual sort but of decisive properties, like parting of two partners in life or business. A solicitor is a bit like a lawyer in the sense that he ensures that the party that hired him gets the most advantages his expertise can provide.

A lawyer is what I often call a biased mediator. This is the guy who is responsible that the party who hired him gets properly consolidated for the termination of the relationship. Many people however are still not sure as to what exactly a solicitor lawyer is.

Hiring a solicitor lawyer, a lawyer who specializes in soliciting the termination of relationships is oftentimes a lot of help to parties in termination. Giving any party that has a solicitor lawyer a boundless advantage over the other, in or outside the court.

A solicitor on the other hand does not roam around with whatever work they can get they deal specifically with soliciting property and responsibilities at the end of relationships. The point in explaining in detail exactly what a solicitor lawyer is is that when the need arises you should know just the guy to contact.

So the person is referred to a lawyer solicitor. Now THIS is the person who can not only give us specialized guidance in pursuing your case efficiently but also pursue the case to its end even if it ends up in a court. Once we are finally through with the settlement, we sit down and think about the time and money we spent going uselessly to all the previous people when all we had to do was come straight to this guy.

It is far better to bring just one lawyer into the fold than first going to a general lawyer, then being referred to a solicitor and then going to a solicitor lawyer when you find that your case finally is going to the court. Remember that the blows are hardest that fall upon hot metal similarly you would do yourself good by taking timely action or you may have to spend a lot more time and money than you perceived.

Find More Lawyers Solicitors Articles