Personal Injury: What is involved

It is for a claimant to prove his/her claim. The standard of proof is the balance of probability ie whether something is more likely than not to be the case (in practical terms a greater than 50/50 prospect).

There are three elements that have to be proved in order to succeed with a claim.

• Firstly a duty of care must be owed to the injured person. Duties of care are generally very broad and it is only in exceptional cases that it will not be possible to prove this.  

• Secondly there must be a breach of that duty of care ie negligence or breach of statutory duty. This can be a contentious part of a claim particularly if there is a factual dispute about what actually happened – quite common, for example, in road traffic accidents. Arguments can also arise about whether agreed facts amount to a breach – sometimes an issue in accidents at work where the broad test the employer has to establish is one of reasonableness.     

• Finally it is necessary to show that as a result of the breach of duty the individual has been injured and that the financial losses included in the claim arise from that injury. Difficulties often arise with back/neck injuries where a claimant has had problems before the accident or sometimes even if there have been no problems but xrays/scans show degenerative changes. In such cases the medical evidence as to what is likely to have happened in the absence of the accident is critical particularly if there is a substantial future loss claim.

Many claims are resolved through negotiation with insurers and without court proceedings being issued. However, court proceedings may need to be started for a variety of reasons eg the insurers may deny liability or it may not be possible to agree the value of a claim in which liability has been admitted. When this happens there is still a very good chance that the claim will be settled before it reaches a court hearing – this can happen shortly after the proceedings are started or shortly before the hearing or at some stage in between. A very small proportion of claims do proceed to a court hearing and in those circumstances a judge will hear the evidence and make a decision.