Defences against personal injury claims

An individual who suffers personal injury as a result of someone else’s negligence or breach of duty can make a legal claim for compensation for personal injury. However, not every case will succeed – even those cases that may seem, at first glance, concrete cases.

The most common types of personal injury claim include:

• road traffic accidents;
• accidents at work;
• public liability (eg, tripping in a public place);
• assault claims;
• product liability involving defective products;
• holiday accidents;
• medical and dental accidents.

Personal injury also includes conditions that are classified as industrial disease cases, such as asbestosis and mesothelioma, vibration white finger, chronic bronchitis, asthma, deafness and occupational stress.

When an individual who has suffered personal injury makes a compensation claim against someone else (ie, the defendant in the case), the defendant either admits liability (or partial liability) or defends the claim. Any defence must be served within 14 days after the particulars of claim is filed, or 28 days after service of the particulars of claim if the defendant files an acknowledgment of service.

Under the Limitation Act 1980 (LA 1980), an individual claiming for personal injury compensation must start formal proceedings within three years of the date of the accident, or within three years of the date of knowledge of their potential claim for personal injury compensation (see limitation period in personal injury claims).

There are exceptions: in the case of children, the three-year period does not start to run until their 18th birthday; and the limitation period is also extended for a ‘protected person’ – defined in LA 1980 as someone who are incapable of managing their property and affairs due to mental disorder. In such cases, court proceedings must be issued within three years from the date when the person ceased to be under a disability. If the protected person never becomes sufficiently mentally able to bring proceedings themselves, there is no time limit for commencing the claim.

If proceedings are not commenced within the prescribed limitation period, the individual may not be able to make a claim. Although the defence will most likely apply to have the claim dismissed on the basis that it is time barred, the court has discretion to waive or extend the limitation period if it is equitable to do so, for example, if it is a very strong claim and liability is undisputed.

The defendant may have several possible lines of defence to avoid or limit the claim, for instance:

• the accident or incident was not caused by the defendant;
• the accident or incident was partly caused by the claimant;
• the accident was caused by a third party, not the defendant;
• the defendant had no legal duty of care towards the claimant;
• the injuries or condition were not caused by the accident or incident.

In a personal injury claim, it is for the claimant to prove their claim on the balance of probabilities. The claimant is required to prove that the defendant owed them a duty of care, the duty of care was breached causing the accident or incident, and that the claimant’s personal injuries were a direct result.

Where the defendant raises a defence (as opposed to a mere denial of the claim raised) it is then for the defendant to prove their defence. So, for instance, if the defendant alleges you were driving at 50mph in a 30mph speed limit zone and were therefore to blame for the accident, the defendant may have to provide the evidence to prove this.

The defendant may have grounds to dispute the facts as put forward by the claimant, for example, photographic evidence or CCTV footage may disclose a different interpretation or record of what actually occurred that throws doubt on the claimant’s case.

The defendant may be able to show that no duty was owed to the claimant. For example, a claimant may be making a personal injury claim against the local authority based on a tree that is overhanging a public pavement. The local authority may be able to prove that it had no legal responsibility to trim the overhanging part of the tree, therefore it had no duty of care towards the plaintiff.

If it is alleged you were partly to blame for the accident, and this is proven, any compensation award you receive will be reduced proportionately. If, for instance, you are awarded £50,000 compensation for personal injuries following a road traffic accident but you were found 20% liable because you were not indicating, your award would be decreased to £40,000.

In rare cases, a valid defence of automatism can be made out. Automatism means the defendant was not in control of his actions at the relevant time because of intervening circumstances, such as a sudden illness. However, such cases are very fact-specific, and events and the condition and state of mind of the defendant leading up to the incident will be critical to the outcome.

Many personal injury claims will be defended by the defendant’s insurance company, which provided cover such as a motor insurance policy, travel insurance, employers’ insurance or public liability insurance. Insurance policies invariably contain exclusion clauses meaning the insurance policy will not cover some kinds of risk. This might include where the damage was due to wear and tear, where the accident happened due to an illegal act or where the risk is deemed catastrophic so would affect too many people to make it insurable (eg, war).