“You’re ignorant. But at least you act on it.”
So comments an eye-rolling Hobbes to Calvin in response to his friend’s rant about knowledge only leading to paralysis by analysis. That’s an outcome which, as a “man of action”, Calvin simply cannot afford. In other words, it’s a “simple” explanation for why Calvin will be better off not doing his homework.
Calvin’s logic may be flawed but, with a personal injury claim, the simplest approach is usually the best.
But can we keep things simple?
In this article, we’ll consider, firstly, some of the factors that can complicate a personal injury claim. Secondly, we’ll look at complexity from the injured claimant’s perspective. And finally at “control” issues surrounding complexity: in other words, who has the power to make things simple or not?
There are lots of ways a personal injury claim can become complicated.
- Allegations of contributory negligence – that you were partly to blame for your injuries.
- Where it appears multiple persons or organisations may bear responsibility for the accident/injuries you suffered.
- Where you have multiple injuries, including physical and psychological elements.
- If it is based in medical negligence or some other form of professional negligence.
That’s not a complete list by any means but it gives you a few examples of areas where complexity can arise. Let’s move on now and look at how complications can appear – or at least need addressing – from the injured person’s point of view.
Looking at complexity from the injured claimant’s perspective.
Here’s an example.
A road traffic accident where the oncoming driver was definitely to blame for the accident. They caused the head-on collision with your car because they had veered onto the wrong side of the road.
You suffered whiplash injuries and a wrenched shoulder.
You noted that the air bags in the other car all deployed in the accident but the ones in your car – inexplicably – did not.
It’s in your mind that, despite the other driver’s failings which caused the accident, maybe your injuries would have been reduced or even avoided if the driver’s airbag in your car had activated.
Should you and your solicitor consider a claim against the manufacturers of your car’s safety system due the apparent defect in the airbag activation?
The short answer is “no”.
A claim against the other driver’s insurers, based on the other driver’s negligence, is the simplest approach. You’ll be able to prove liability and the full value of the claim will be payable by them.
While a claim against the manufacturers of the airbag system may be theoretically possible, it complicates things significantly:
The primary claim would still be against the other driver’s insurers because their driver caused the accident. Without the accident, there would have been no need for the airbags to activate. The failure of the airbags to activate is a secondary issue. Essentially, you’d be turning a claim against one opponent (the car driver’s insurers) into a claim against 2 opponents (those insurers and the airbag manufacturers).
The facts of the accident are straightforward to prove so as to show the fault of the other driver,
For example, witness evidence coupled with evidence of the nature of the damage to each vehicle and the point of collision (perhaps a gouge mark in the tarmac or the location of debris).
By contrast, the airbag issue is much more challenging to prove.
How do show that the airbags ought to have activated?
You’d probably need expert evidence from an engineer with knowledge of airbag set-up and calibration. That’s expensive evidence to obtain, with no guarantee it would be favourable to you.
Whiplash injury cases are usually fairly low value. The cost of obtaining an expert report may be disproportionate to the claim value.
The potential value of the claim will affect how keen parties to a claim will be to “complicate” things by adding an additional line of claim or defence.
Let’s move on to an example of where relatively unusual complexity came into a case. All parties agreed the complexity existed and was real, though they needed the court to decide matters.
Where complexity is unavoidable.
The case of Widdowson resulted from a road accident in Moray, between Roseisle and Kinloss. Two cars collided head-on, close to a bend. The accident was clearly the fault of one of the drivers, who sadly died in the accident.
The passenger who had been in the other car passed away a few days after the accident. This gave rise to potential claims not only for his own pain and suffering (“transferred solatium”) but also for several of his relatives’ “fatal claims” for “loss of society”. In other words, looking at the totality of potential claims, it was a “high value” situation, likely running into hundreds of thousands of pounds.
It was argued that the passenger would not have died from his injuries if he had received proper care in either or both of the 2 hospitals where he received treatment.
Indeed, there was acceptance among the insurers of the deceased driver and the 2 health boards that they all bore some element of blame.
It meant that, when the case went to court, what might have been a “simple” claim against the insurers of the driver of the other vehicle was “complicated” by being against 2 separate health boards in addition.
This has parallels with the airbag scenario because neither the airbags problem nor the hospital treatment problem would have come up at all without the respective accidents happening first of all.
The law here draws a distinction between causing harm (i.e. making things worse) – as the at-fault car driver had done – and failing to confer a benefit (i.e. not making things better) – where the hospitals had fallen short.
The responsibility level of the car driver was therefore much higher despite the fact that the hospitals’ omissions meant that they could not avoid liability. Failing to take positive action that would have saved someone’s life is not the same in the eyes of the law as committing an act that caused death.
In the Widdowson case, the court took the view that the driver was 70% to blame for the losses and each health board 15% to blame.
On the face of it, the “complexity” saved the driver’s insurers 30% of the costs of the various claims by shifting it onto the health boards.
How this played out in practice is less easy to estimate because the costs of running the case all the way to proof would have been significant and there may have been Minutes of Tender in place which drastically affected the costs outcome among the 3 defenders.
We can summarise by saying that it is always a good idea to simplify as much as you can about your personal injury compensation claim, so far as that is within your control.
But the value of a claim and its complexity are not related to each other. A low value claim may be very complicated or vice versa.
As a result, often the things that may make your claim more complicated are not within your control. Unlike Calvin, you need to do your homework about what is and is not controllable by you in the circumstances.
Going back to the example of the ‘defective airbags’, sometimes we can easily rule out a possible line of claim as unnecessary and unhelpful. In the end, we want to find the simplest route to claiming 100% of the value of your claim in the shortest possible time, without cutting any corners.
We bang on about the need to get legal advice to help you make a personal injury compensation claim. Don’t deal directly with the other side’s insurer, we say.
Here’s the thing. If you don’t have help from an independent, preferably local, accredited solicitor, how do you know you’re not not introducing unnecessary complexities into your claim yourself?
Moreover, don’t you think the insurer on the other side of your claim will find it difficult to resist the temptation to argue complexities exist which ultimately should reduce the level of compensation payable to you? How will you know if they’re trying it on?
How we can help
It’s a common gut feeling that “simple is best” and that’s true for personal injury claims. But you need to understand and accept that some element complexity is almost inevitable. This is why help from a solicitor will be important for you to have.
If anything in this article has left you with unanswered questions, feel free to contact us. We’ll be glad to answer your queries. All initial enquiries are free of charge and without obligation.