An injury, be it physical or psychological in nature, can have a huge impact upon a person’s life. When an injury has been caused by someone else’s negligence or breach of statutory duty, an injured person may be entitled to claim compensation. Compensation is not, however, a windfall because, as far as money can, the purpose of compensation is to put a claimant in the position they would have been in had the injury not occurred. A key objective is therefore to secure funds for rehabilitation to maximise a claimant’s recovery.
At the outset of a case, before compensation is considered, the first step is to ascertain whether an injured person has a claim. The legal test depends upon the circumstances in which the injury was sustained.
In a clinical negligence case (also known as medical negligence), there are three key questions to ask:
- Did the medical practitioner owe the claimant a duty of care? If the claimant was their patient, the answer is yes.
- Was the treatment negligent (i.e. did the medical practitioner breach the duty of care by providing treatment which fell below a generally accepted standard)? If not, then there is no case; and
- If it was, then has the negligence caused injury or harm? This is what the law calls the issue of “causation”. If it has not, then there is no case. In clinical negligence cases, it is quite common to find that causation is much more difficult than the question of negligence because invariably the patient had something wrong with them in the first place (which is why they were seeking medical treatment) and they may have ended up in the same position even without negligent treatment.
Given the medicine involved, clinical negligence cases are, by their very nature, complex. At the outset, an experienced clinical negligence lawyer may consider it likely that there is a case, but in order to prove negligence and causation, we have to rely on the opinions of independent medical experts who are specialists in the treatment provided and the injuries suffered.
The circumstances giving rise to a personal injury claim are very varied and include road traffic and slipping and tripping accidents, accidents in the workplace and injuries arising from defective products.
Assessing whether a third party has broken the law, such as an employer not complying with health and safety legislation, can be more straightforward than deciding whether they have been negligent. To establish negligence it has to be proved that they owed the claimant a duty of care and that they breached that duty. That is often very difficult.
One or more medical experts are again required in order to prove that the accident resulted in injury.
Where two or more people are to blame for an accident, the law does not prevent an injured person from claiming compensation but will apportion blame between the parties and reduce the injured person’s compensation accordingly. This concept is called contributory negligence.
Similarities and rehabilitation
Whilst the legal test for proving negligence and/or breach of statutory duty is different in clinical negligence and personal injury cases, there are also a number of similarities between the practice areas. These include considering the injuries sustained, how they have resulted in past and future financial losses and how such injuries and losses should be compensated.
In both practice areas, lawyers who act for injured claimants seek to utilise the Rehabilitation Code, which encourages claimant and defendant representatives to work together and promotes the use of rehabilitation, funded by the defendant, to help an injured person. Rehabilitation might involve physiotherapy for a claimant with orthopaedic injuries, or a case manager and support worker for a claimant with a brain injury. The objective is to help a claimant make the best and quickest physical, social and psychological recovery possible.
Unfortunately, not all claimants make full recoveries. In cases of severe injury, a claimant may never work again and will require lifelong care and support. In those cases, lawyers seek to secure damages to compensate for the injuries suffered, but also past and future financial losses including lost earnings, private treatment, professional and family care costs, equipment and accommodation needs.
Compensation will never make up for the injuries suffered. However, it is intended to bring some satisfaction to claimants for the wrong they have suffered and, in cases where the injuries will have a significant ongoing impact, provide financial security and peace of mind for their family.