The basis of any personal injury claim is the law of delict. This is a concept whereby an injured party should be restored to the position they would have been in but for the accident or harm which has occurred to them. Unfortunately, in a time of significant media attention surrounds the existence of a ‘compensation culture’ arising due to the actions of ‘ambulance chasing’ lawyers, the original harm appears to have been forgotten.
When an injured person is making a claim after being involved in an accident, they are not receiving money for nothing. The compensation payment made is to put them back to where they would have been if an accident had not happened. For example, if an employee is injured during the course of their employment and are unable to work due to their injury then they are able to make a claim for their loss of earning – this is payment of money they would have earned but for the accident.
In news stories of accidents and personal injury claims, it appears to have been forgotten that the person making the claim has been hurt through no fault of their own. The culture surrounding personal injury cases has developed into an idea of victim blaming which is inherently unfair.
For example, it was very recently suggested in a column featured online by a popular newspaper that those who have suffered harm as a result of negligence of the NHS should simply accept an apology and be done with it. The article explored the impact of medical negligence claims on the public purse, the cash-strapped NHS and staff morale. No analysis was given to the impact of the injured party who has placed their faith in the hands of their treating doctor only to be left worse off than when they started.
The article also fails to explore, or inform their reader, of the particularly high standard of proof which occurs in medical negligence cases. Firstly it must be established that negligence has occurred. The way to do so is to prove that no other reasonably competent medical professional would have acted in the same way. Secondly, it has to be proven that the negligence has resulted in harm. This means that it has to be proven that an injury has occurred as a result of the negligence. It is not simply a case of saying that you have been wronged by a doctor and being handed a cheque!
The over-simplification of personal injury cases has, no doubt, lead to the vast criticism of those who chose to pursue a case and those who represent them. Those who deal with injured parties on a daily basis see the true effects an accident can have on a person. They also know the work which is required in order to achieve a successful outcome for a client. Personal injury if far from the ‘get rich quick’ scheme it is portrayed to be in the media.
Supreme Court judge, Lord Sumption, has recently suggested that pursuers who make claims should not be branded as being greedy when they are merely making use of the current system which has developed as a result of a plethora of previous cases. He said: “If the law entitles the victim of an accident to compensation, it ill becomes us to criticise him for knowing it and claiming.”
In a speech to the Personal Injury Bar Association, he discussed the current proposed measures which the government are seeking to bring into force in England – including a ban on settling cases without the need to supply medical evidence and introducing a fixed tariff of whiplash injuries. In his consideration of these measures, he also explored the impact of increasing numbers of personal injury cases on the insurance injury before suggesting that the element of blame should be removed from personal injury cases altogether. The hypotheses behind this being that those paying out for claims are all policy holders rather than the one who may be at fault for an accident therefore society as a whole is suffering due to increased policy premiums. Lord Sumption has described the current system of dealing with personal injury cases as being “clumsy and inefficient” due to increased costs and long delays.
In an ideal world, the need for personal injury claims would not exist at all. All employers would provide employees with a safe place of work. All local authorities would ensure footways and carriageways were clear of any defects. All land owners would ensure their property was free of any hazards. All drivers would be perfect drivers and therefore no road traffic accidents would occur. Unfortunately this mythical risk free society does not exist. Instead we are left in position where innocent people are injured through no fault of their own and should not be blamed or criticised for seeking the redress.
Blog by Eilish Lindsay, Glasgow Lawyer
