The Law of Negligence – simplified (part III)
In my previous blogs (Part I and Part II), I discussed the need to establish if there was a duty of care or statutory duty, and if so, was the law broken / duty breached, whether the breach of duty caused any loss and whether the harm was foreseeable.
Finally, I will discuss the issue of determining what loss, and types of loss, the negligence caused.
5. What loss did the negligence cause?
This is known as “quantum” or how much something should be worth.
In personal injury there are legal guidelines set by senior judges as to how much certain injuries should be worth and lawyers will also look at recent cases involving similar injuries to see what the judge in those cases awarded.
There are many types of losses that can be claimed such as injuries, financial losses, future work problems, loss of enjoyment of a holiday.
If the injuries are minimal however then a principle known as “de minimis” might apply. What this means is that the losses are so minor they do not merit an award of compensation. This can arise in noise induced hearing loss cases as an example in which the hearing loss caused by work is not much different from that caused by old age.
A claimant in a personal injury claim will need to satisfy all of the following to win:
- There was a duty of care or law such as an Act or Regulations
- That duty of care or law was broken
- Because that duty of care or law was broken the accident happened
- Because the accident happened they have suffered injuries (or if the issue cannot be separated out – the accident can at least be said to have “materially contributed” to some of their injuries)
- The type of harm they suffered was foreseeable
- The type of losses they are claiming are those reasonably linked to what happened
- They can prove their losses with evidence and that those losses are not trivial
So where did the Judge go wrong?
The situation was this: we were at a liability-only trial which means this part of the case was only finding out whether the defendants were liable to the claimant or not – the injury part will come later.
It was an injury at work case and before going into court, on the morning of Trial, the two defendants both agreed to admit liability.
Now, thinking about the example above, by doing so the defendants were admitting legal causation, which always comes with an admission of liability (otherwise it is merely a “technical breach” which is not liability).
The judge, instead of simply approving the agreed finding of liability, began asking what will happen if it is later found that some of the claimant’s injuries were caused not by what they did wrong, but what he did wrong. This is fundamentally the wrong question to ask: once liability is admitted legal causation is also admitted which means the only question left on causation is whether and how much of the injuries can be linked to the accident – NOT how much of the injuries can be linked to what part each party played in causing the accident.
Basically, the judge had conflated legal and medical causation.
Aston Knight Solicitors Bury are a specialist personal injury practice with a particular focus on serious injury cases. If you would like to know more please feel free to contact us at either firstname.lastname@example.org or by telephoning on 0800 999 6661. We are always happy to provide a free initial consultation and no-win-no-fee agreements.