Personal injury claims often arise in complex circumstances. Although most claims will be founded in an area of law known as tort, they may also be borne out of a breach of contract. There are important differences in the way compensation for damages are assessed under each heading.
Aside from the differences between claims in tort and claims in contract there are also some general principles of law that apply to all claims, including personal injury.
Tort v Contract
Tort attempts to deal with wrongs that have caused damage to another person such as negligence for example. In terms of compensation it seeks to restore the position of the party that has suffered a wrong to the position he would have been in had that wrong not been committed.
Contract law places a stronger emphasis on what the parties were attempting to achieve in their agreement. It therefore seeks to put the claimant in the position he would have been in had the contract been completed.
General Principles
The burden of proof in civil claims is generally tested on the balance of probability. This applies at each juncture of a claim – proving facts, proving that loss has occurred, proving cause etc.
A fundamental principle of English law rests upon the notion that the courts aim to achieve finality in proceedings brought before them. The idea is that claimants cannot keep returning to the same cause of action for repeated bites of the cherry. Although there has been some relaxing of this approach with the advent of periodic payment awards, fundamentally the principle remains.
Similar to the finality principle, courts also avoid giving claimants the opportunity to recover twice for the same injury. Benefits received for an injury that would not have otherwise been received will therefore be taken into account when damages are calculated.
Claimants have a duty to mitigate their losses under English law. This means that claimants bear some of the responsibility for trying to prevent losses escalating unnecessarily by taking appropriate action such as seeking new employment where injury prevented them from continuing their previous work.
Considerations
Most personal injury claims are settled before they reach court. However, it is important that claimants base their approach on the possibility that their claim will eventually proceed to trial.
Understanding the correct basis of the claim and the requirements regarding evidence gathering, presentation of evidence and conduct in communicating with the other side should help ensure that subsequent procedural problems are avoided.
If you would like further information about personal injury law or wish to discuss a potential or current claim, we have experienced lawyers on hand who can advise you. Please contact Sarah Vincent by email svincent@rollingsons.co.uk or by telephone 020 7611 4848.
