WHAT IS NEGLIGENCE IN PERSONAL INJURY *?

WHAT IS NEGLIGENCE IN PERSONAL INJURY *?

What is Negligence?

One of the most common reasons for pursuing a personal injury claim * is the negligence of a third party who caused the accident that led to an injury. The person making the claim relies on the legal concept of negligence to pursue a claim.

In the legal world, negligence is defined as the failure of a person to uphold a reasonable duty of care or breach the duty of care or standards of behaviours expected of them for the protection of people against unreasonable and avoidable risk of accident and injury.

For negligence to be established and proven there are several elements that must exist:

  1. There must be a duty of care expected of the person at fault for the accident
  2. There must be a breach of this duty of care
  3. There must be loss or damage to the person making the claim
  4. There must be a link between the breach of duty of care and the loss or damage sustained

In Lievre v Gould (1983) it was noted that ‘the question of liability for negligence cannot arise at all until it has been established that the man who has been negligence owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be as negligence as he pleases towards the whole world if he owes no duty to them’.

This basically shows us that if you are making a claim against another person that you need to be able to show that that other person had an obligation to act in such a way to prevent you from being involved in an accident or sustain any injury. If they had no obligation to you then you may not be able to pursue a claim for negligence.

What is Duty of Care?

Duty of care means that you should not act in such a way that will cause an accident or injury to another person.

For example, a shop owner has a duty of care to ensure that any spillages are cleaned up and a wet floor sign is in place to prevent any person from slipping and injuring themselves when in their shop. If they fail to clean up a spill or leave a wet floor sign down, they may be seen to have neglected their duty of care to provide a safe shopping environment to the public.

In Irish law, a duty of care is owed to any person that is classed as your neighbour. This may bring some questions to mind, like, who is my neighbour?

Your neighbour is considered to be any person that closely and directly affected by your actions, that you ought to reasonably have them in mind when carrying out your acts.

For example, for a shop owner, legally their neighbours are those who shop in their shop, i.e. people that would be negatively affected by their actions should the shop owner be negligent and fail to provide a hazard-free shopping environment causing an accident and injury to customers.

Duty of care and Negligence in Personal Injury Cases *

The person making the claim must be able to show that the party at fault failed to meet the duty of care owed to them. They must be able to show that the actions or inactions of the party at fault caused the accident and injury.

The level of duty of care owed to a person will depend on the case type, accident type and specific details that led to the accident. Here is a list of common accidents that may result in a personal injury claim * for negligence:

Road Traffic Accidents and Road User Negligence *

While on the road, all road users have a duty of care towards other road users and must operate their vehicle in accordance with the rules of the road, which includes adhering to the speed limit, yielding at certain points on the road, adhering to traffic lights etc and not to endanger any other road users in the process. This duty of care extends to other vehicles on the road and pedestrians along the way.

Negligence and a breach in duty of care may be established in cases where a road user:

  • Is speeding
  • Fails to stop at a red light
  • Does not yield where they should
  • Driving under the influence of alcohol or drugs
  • Texting or talking on the phone while driving

Workplace Accidents and Employer Negligence *

Under the Safety, Health and Welfare at Work Act 2005 employers must ensure employees safety, health and welfare at work as fare. This is their duty of care and is expected of them as far as is reasonably practicable to avoid accidents in the workplace *.

In ensuring they meet their duty of care they must:

  • Provide and maintain a safe working environment, which extends to the provision and maintenance of machinery and equipment.
  • Ensure that any risks associated with the use of certain tools, machines or substances are minimised
  • Ensure that exposure to physical agents, noise and vibrations are minimised.
  • Prevent any improper behaviour likely to put the employees at risk of accident or injury
  • Provide health and safety training for all employees
  • Provide adequate personal protective equipment to employees (at no cost to employees)
  • Appoint a person within the company as the Safety Officer
  • Carry out a risk assessment of their workplaces regularly to identify any hazards and risk that may arise from those hazards and identify the steps needed to eliminate or minimise these risks where possible.

Employer negligence may be established in cases where the employer failed to meet the above criteria. Some examples of workplace accidents * relating to employer negligence are:

  • Accident and injury sustained in cases where an employee injures themselves while carrying out a work task where there was no or inadequate personal protective equipment *.
  • Injury sustained to the back due to manual handling *, where an employee had not received manual handling training or was not provided with the tools need to move heavy objects and hurt their back in the process.
  • Slip and fall on a wet floor * where no wet floor sign was displayed.

Accidents in Public places * and Negligence

Where a person or business upholds a property or space for public use, that person or business has a duty of care to the people who visit that space and must provide a safe environment as far as reasonably possible to avoid a public place accident *. Some examples of public places that have duty of care to the public that visit them are:

For all businesses or people responsible for the upkeep of a public place there is an expected duty of care they have towards the public. That duty of care is to take reasonable care to provide a safe environment, some examples of claims made are:

In each of the above example, the business owner or person responsible to for providing a safe environment for the public was negligent in their duties and this led to an accident and injury to a member of the public.

Medical Negligence *

The relationship between a doctor and patient is one of trust and is entered by consent by the patient. There is an expected duty of care owed to the patient by the doctor. It is expected that the doctor or medical professional will use a degree of care and skill expected of a person in their position.

A medical professional who fails to show this standard of care and has caused an avoidable injury to a patient or caused a patient’s current condition to worsen unnecessarily may be seen to have committed medical negligence *.

Some example of medical negligence * are:

Establishing Negligence

Once duty of care has been established the next task is to establish negligence. In doing so there are a couple of questions to ask:

  1. Did a duty of care exist?
  2. Can you prove that this duty of care was breached?
  3. Did you suffer an injury because of a breach in duty of care?
  4. Did you sustain a loss as a result?

For example, if a car accident * happened because a driver had driven through a red light and collided with another car as a result. In this case:

  1. Did a duty of care exist? Yes, we know that as a road user, the driver had a duty of care towards other road users. They are expected to not drive their vehicle in a certain way that will put other road users at risk.
  2. Can you prove that this duty of care was breached? Yes, in this case, CCTV can show that the care ran through a red light and caused the accident. By not following the rules of the road and stopping at the red light they are seen to be in breach of their duty of care towards other road users.
  3. Did you sustain an injury because of a breach in duty of care? The person in the other car sustained a fracture and some soft tissue injuries.
  4. Did you sustain a loss as a result? As a result, they spent some time in the hospital, underwent scans and tests and were then unable to work until their recovered. In this case, the loss sustained by the injured party was a loss of earnings, costs of medical bills and physical injuries.

Contributory Negligence

Personal injury claims are not always straightforward, in some cases, the injured party may be found to have caused their injuries or found to have contributed to the severity of their injuries. This is known as Contributory negligence. It has been defined as the failure of the injured party in a personal injury claim * to act prudently where their actions contributed to the cause of the accident and their injuries. It may sometimes be used as a line of defence by the defendant when a claim is made against them.

For example, in the workplace, where an employer has acted appropriately and provided adequate training and tools for manual handling and moving heavy objects and the employee chooses to ignore the tools needed and proceed to attempt to lift an object themselves. Where they injure themselves having ignored their training and tools available they may be seen to be responsible for the accident and injury.

Another example where contributory negligence increases the severity of an injury is where a car accident is caused by another person, but the injured party was not wearing their seatbelt. While the injured party did not cause the car accident * the fact that they were not wearing a seatbelt most likely increased the severity of the injuries sustained. This may influence the claim.

TELL US ABOUT YOUR CASE

Where negligence is not clear, or you are unsure about whether negligence played a part in your accident or injury, it is advisable to speak with a Personal Injury Solicitor * to discuss your case.

Tracey Solicitors draw on over 30 years of experience in personal injury claims * to ensure that we make law accessible to all, without the legal jargon that comes with it.

To discuss your case in more detail you can call our team on 01 6499900 or email ask@traceysolicitors.ie to tell us about your case.

TELL US ABOUT YOUR CASE

contact no win no fee solicitors

016499900

or email ask@traceysolicitors.ie to tell us about your case and we can call you back

TELL US ABOUR YOUR CASE

Personal Injury Claims * – Useful Information

 

What is a personal injury claim *?

In scenarios where a person is involved in an accident * that was not their fault and sustains an injury as a result of that accident, they may be entitled to pursue a personal injury claim *.

There are many different scenarios that could lead to a claim, most common of which are:

Each scenario and case will be different, therefore, it is important that you contact a personal injury solicitor * as soon as possible after the accident to discuss your case.

How do I start a personal injury claim *?

The first step in making a claim, after you have spoken with a solicitor, is to submit an application to the Injuries Board for an assessment of your claim. You will be required to complete an Injuries Board Form A in order to start the claims process.  Your solicitor can gather the relevant documents needed (medical reports, Gardaí reports etc.,) do this on your behalf.

My claim has been submitted to the Injuries Board, what happens next?

Once the Injuries Board have received your application they have a period of 9 months in which to assess your claim. Once assessed, the Injuries Board will revert back to you and the person at fault with a suggested compensation amount to be paid to you. At this stage, one of two scenarios will come to pass:

  1. If both parties agree on the settlement amount, the Injuries Board will issue an order to Pay and the compensation amount will be paid to you.
  2. If either party disagree on the compensation amount then your case moves to the next stage – you have 6 months to issue court proceedings.
How is compensation calculated?

A compensation amount is calculated by taking into account the following aspects:

  • Loss of wages, if absent from work due to injury
  • Future loss of earnings, if absent from work for a long period of time
  • Medical expenses resulting from the injury
  • Future medical expenses resulting from the injury
  • Out of pocket expenses

In order to calculate compensation for you, the Injuries Board will refer to the Book of Quantum. The Book of Quantum shows value ranges of compensation amounts that have been awarded to people for injuries to specific parts of their bodies. Each of the average compensation amounts found in the book is taken from real personal injury cases * (over 51,000 in total) from the years 2014-2015.

“I would like to thank you for your nice and professional cooperation. I am very happy and grateful for all your efforts to win my case. I was updated regularly about progress in my case.”

B.R., Personal Injury *

Client Story – Sarah **, Personal Injury *

Incident: Sarah was part of a party of 5 who attended a restaurant. She suffered a slip and fall accident in the restaurant toilet * when she slipped on a patch of wet floor *. She proceeded from the bar area through a passageway and went to the bathroom and then proceeded to return to her friends. As she walked through the corridor she slipped on the floor *. She went over on her left ankle and both knees hit the floor. She managed to get up and noted that the floor was more slippery in this area than other areas. There was no caution sign on the corridor and a staff member came to her assistance. The waitress advised her that the floor was dodgy and another person had nearly fallen some time earlier that evening. After falling she began to suffer from discomfort in her left foot immediately.

Case progression: The Personal Injuries Board decided that it would not be appropriate for them to make an assessment in the case on the 19/10/2017 and proceedings were issued on the same day. The case was brought to the High Court.

Settlement: The case was settled on the 24/07/2018 in the High Court.  The restaurant had a duty of care to its customers to provide safe surroundings. The floor shouldn’t have been wet or else a caution sign should have been visible.

Client Story – Sarah **, Personal Injury *

Incident: Sarah was part of a party of 5 who attended a restaurant. She suffered a slip and fall accident in the restaurant toilet * when she slipped on a patch of wet floor *. She proceeded from the bar area through a passageway and went to the bathroom and then proceeded to return to her friends. As she walked through the corridor she slipped on the floor *. She went over on her left ankle and both knees hit the floor. She managed to get up and noted that the floor was more slippery in this area than other areas. There was no caution sign on the corridor and a staff member came to her assistance. The waitress advised her that the floor was dodgy and another person had nearly fallen some time earlier that evening. After falling she began to suffer from discomfort in her left foot immediately.

Case progression: The Personal Injuries Board decided that it would not be appropriate for them to make an assessment in the case on the 19/10/2017 and proceedings were issued on the same day. The case was brought to the High Court.

Settlement: The case was settled on the 24/07/2018 in the High Court.  The restaurant had a duty of care to its customers to provide safe surroundings. The floor shouldn’t have been wet or else a caution sign should have been visible.

FREQUENTLY ASKED QUESTIONS

How long does a personal injury claim take to settle?

The time it takes to settle a claim will depend on the type of accident and the types of injuries sustained. This is why this is a difficult question to answer as there are many factors that come into play in the personal injury claims * process.

There are certain time frames we can somewhat predict and some that we can’t predict, for example, we know that the injuries board must revert within 9 months with an assessment of your claim…

READ MORE

How do I make a claim *?

To proceed with a personal injury claim *, it is advisable to speak with a solicitor. The path your case takes will be heavily dependent on your injuries, the negligent party and the circumstances of your accident.

In general, most personal injury claims will need to be assessed by the Injuries Board first. Before this happens, however, your solicitor will help you gather all the necessary documents to make your claim…

READ MORE

Will I have to go to court?

This is not a question that can be answered at the outset of a case. The reason is that there are steps that need to be followed before the opportunity to move to court proceedings presents itself.

The vast majority of personal injury claims * are settled before stepping foot into a courtroom. Only a small percentage of claims each year go to court for a Judge to decide on the outcome of the case…

READ MORE

FREQUENTLY ASKED QUESTIONS

How long does a personal injury * take to settle?

The time it takes to settle a claim will depend on the type of accident and the types of injuries sustained. This is why this is a difficult question to answer as there are many factors that come into play in the personal injury claims * process.

There are certain time frames we can somewhat predict and some that we can’t predict, for example, we know that the injuries board must revert within 9 months with an assessment of your claim…

READ MORE

How do I make a claim *?

To proceed with a personal injury claim *, it is advisable to speak with a solicitor. The path your case takes will be heavily dependent on your injuries, the negligent party and the circumstances of your accident.

In general, most personal injury claims will need to be assessed by the Injuries Board first. Before this happens, however, your solicitor will help you gather all the necessary documents to make your claim…

READ MORE

Will I have to go to court?

This is not a question that can be answered at the outset of a case. The reason is that there are steps that need to be followed before the opportunity to move to court proceedings presents itself.

The vast majority of personal injury claims * are settled before stepping foot into a courtroom. Only a small percentage of claims each year go to court for a Judge to decide on the outcome of the case…

READ MORE



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