News and Insights
25 July 2017
Injuries or illnesses caused by someone else’s negligence such as road traffic accidents, industrial accidents and medical mistakes have a basis in the law of tort, which is essentially the law of negligence.
Torts are civil wrongs, as opposed to criminal wrongs. Whilst a criminal wrong must be proven beyond all reasonable doubt, a civil wrong only has to be proven on the balance of probabilities; in other words, more likely than not.
So what elements does the injured party (known as the Plaintiff) actually have to prove, on the balance of probabilities, in order to bring a successful civil claim?
Firstly, we would need to establish whether a duty of care is owed to the plaintiff. Most cases we see involve duty relationships that have been recognised by the courts for a long time; doctors and patients, employers and employees, and drivers and other road users.
Secondly, if a plaintiff can establish that a duty is owed, they would then need to procure evidence that the duty had been breached. To do this a plaintiff must consider what witnesses and/or documents they have to support the claim. In clinical negligence cases, medical experts are required to comment on breach of duty.
Thirdly, if a plaintiff cannot prove that the breach of duty has led to any injury or illness (known as causation) then there is no damage, and no claim.
How do we prove causation?
We will ask a medical expert in the relevant field to provide an opinion on the cause and nature of the injuries. For example, an orthopaedic consultant would be asked to give an opinion on a broken leg, and a respiratory physician could do the same for asbestos-related lung disease.
Proving causation can be fairly straightforward. For instance, where a person with no existing health issues is knocked down and injured in a car accident, there can be little argument that the accident has caused the injuries. But what if the plaintiff already had a back problem? Has the accident made the pre-existing symptoms worse, or would they have got worse anyway? It is issues like this on which medical experts would be called to give an opinion.
If a plaintiff is successful in proving causation, they will then need to establish the extent of the damage that has been caused by the breach of duty. Essentially, this means calculating the value of a claim based on the evidence of the medical expert. This involves working out what losses and expenses the plaintiff has incurred, and providing evidence to back these up.
If there is a dispute about whether a duty exists, or has been breached, or if causation and/or the value of claim cannot be agreed, the court can be asked to decide on the issue at a trial.
Viberts has extensive experience in negligence litigation. I’d be more than happy to talk to you if you feel you have a claim.