Thanks to a bombardment of TV, radio and online advertising over the last few years, the general public are now well aware of their rights to claim compensation if they've been injured and believe that someone else is to blame.
When these claims are made against a business, either by a member of the public or an employee, it can be a daunting prospect thinking about how to defend the allegations. Especially when you believe that the person's injury claim has little or no merit.
However, there can be partial or full defences levelled against most personal injury (PI) claims so managers and business owners need to have a general awareness of the possible areas a solicitor may explore to defend a case and mitigate the costs of compensation.
Admitting or denying liability
Firstly, when an injured person (the claimant) makes a compensation claim against a business or individual (the defendant) the question of liability must be considered. Liability is whether the defendant was legally responsible for the incident and the resulting injury, and can also be thought of as being at fault.
When a claim is made a defendant can either:
If a defendant admits full liability, then the claim will come down to the amount of compensation the claimant is entitled to. This amount can still be disputed (i.e. claimant's expenses are not justified) or negotiated (early out of court settlement) to minimise the cost.
If the defendant denies liability or only admits being partially at fault, then a defence to the claim must be entered and there are several broad areas of defence that a solicitor can explore.
Establishing the facts and disputing the claim
For the claimant to make a successful compensation claim they must prove:
The defendant had a legal duty of care towards the claimant
The defendant acted negligently so was responsible for the accident or incident
The claimant's sustained injuries were caused by the accident or incident
As a defendant you may dispute any of these facts, ranging from how the accident occurred to proving that the injuries and financial losses were not a direct result of the accident.
For example in cases such as a fall on business premises, a defendant may be able to produce CCTV or maintenance records to evidence that there were no hazards in the area and as such were not negligent in their actions.
A company's health and safety policies, procedures and training are often relied on heavily when defending a claim that has occurred at a public place or place of work. So ensuring these records are documented and up to date can be a key evidence in a defence.
Defence against personal injury claim
In extreme cases the defendant may dispute the fact that the accident even occurred at all and allege that the claimant is acting fraudulently. If evidence supports this allegation then not only can a case be dismissed, but the claimant may find themselves prosecuted and found 'fundamentally dishonest' forcing them to pay a defendant's legal costs.
Alternatively, it may be accepted that there was an injury which was caused by the accident however the defendant may be able to obtain expert evidence to show the claimant is exaggerating their symptoms and losses.
While not a complete defence, contributory negligence is where the injured person is in some way at fault for the accident or incident which caused their injuries. So, while the defendant was partially to blame, so was the claimant.
For example, in road accident claims contributory negligence is often applied in cases where the injured person wasn't wearing a seatbelt. While the defendant may have caused the accident by colliding with the claimant, the injuries the claimant sustained were also partially due to their own negligence in not wearing a seatbelt. As such if the claimant was awarded £4,000 for their injuries but found to have been 25% to blame for contributing to them, only £3,000 would need to be paid by the defendant.
If contributory negligence can be proved, against the claimant or another involved party (i.e. the manufacturer of faulty equipment), it can have a dramatic effect on the final compensation amount awarded.
You may have heard stories about burglars being injured and attempting to sue the owners of a property for compensation. While this could hypothetically occur, a defence for this scenario would be that the claimant was injured whist committing a criminal act.
A defence of 'illegality' can be used where a person was involved in criminal activity at the time of the accident, such as in cases of unlawfully trespassing. In situations such as these the defendant would not have a duty of care towards the claimant and a claim would most likely fail.
Claim is out of time
Someone making an injury claim has three years from the date of the accident or incident to start formal court proceedings (issue a claim with the court). This three-year time limit however is not always straightforward as it may also start from the date the person first had knowledge of the injury which may be several years after the incident that caused it, such as in industrial decease cases. In the case of children, the three-year limitation period doesn’t start until they become an adult on their 18th birthday, so a child injured at age 10 will have until they are 21 to lodge a claim.
These timeframes are dictated by the Limitation Act and if a claim is submitted outside the limitation period it can be very difficult for a claimant to show a valid reason why a claim wasn't submitted in the allowed timeframe. Therefore, often the claim may be dismissed regardless of the injury, circumstances or liability.
Fighting a personal injury claim
A poorly defended compensation claim can cost your business thousands and in extreme cases result in its closure. While rigorously defending a lost cause is not likely to be cost effective, a thorough and carefully constructed defence can mitigate the compensation your business is exposed to.
If your business is fortunate enough to have relevant employer's liability or public liability insurance in place, then your insurance company may provide a solicitor to fight the PI claim on your behalf. Therefore, when you speak to them it's important to have an idea of what facts you dispute and evidence you can provide to support your case.
If your business doesn't have valid insurance to cover a compensation claim, then it is critical to seek a solicitor to advise you on your defence options as soon as possible.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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