“Oh, you’re a personal injury lawyer. You must get all sorts of people trying to sue for all sorts of things like coffee being hot?”

“But what about when someone just walks out in front of a car? That can’t be the driver’s fault can it?”

“It’s health and safety gone mad. Don’t you think people should take responsibility for themselves? We don’t live in a nanny state.”

These are just some of the phrases that I hear when I tell people what I do for a living. The perception of personal injury lawyers is unfortunately not a particularly positive one: that we are out there representing people left, right and centre who should really just be a bit more careful.

This is a completely inaccurate and unfair portrayal of the industry. It is not just a question of having a punt at bringing a claim, irrespective of how the accident happened. The law of tort (the law from which personal injury claims derive) is a nuanced and finely balanced discipline developed incrementally over last few hundred years, and throughout this time, the English legal system has always expected that people will primarily take responsibility for their own safety.

For a personal injury claim to be successful, there are a number of complex legal hurdles to be cleared (or tests to be passed). One of the most frequent misconceptions is that where an injury has been sustained, a claim can automatically be brought. However, this is not the case. Sometimes injuries happen purely by accident and there is no connection to link that injury to another culpable person.

One of the first things that all budding personal injury lawyers (yes there were several of us) learn at law school is that liability in the tort of negligence is predicated on the fault of another (“the defendant”). In other words, for a claim to be successful, the defendant must be found at fault for causing the claimant’s injuries.

If someone else is not at fault, there is no claim, irrespective of how serious the injuries are. (This should have been put up in big flashing letters on those TV Ads that used to be shown for injury claims).

So how will it be established whether someone is at fault for causing another’s injuries? The classic definition comes from the case of Blyth v Birmingham Waterworks Co 11 Ex 781 as far back as 1856:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do.”

In other words, what would the reasonable person have done in the circumstances?

What is considered “reasonable” opens up another legal debate, because it has many factors to be balanced, some of which which have developed through case law.

There are a whole cluster of considerations to be looked at together including:

  • How likely was it that an injury would occur?
  • Was the risk of damage so small that a reasonable person would have thought it right to refrain from taking steps to prevent the danger?
  • How difficult (and costly) would it have been to take precautions to guard against the risk?
  • How easy would it have been to prevent the event from happening?
  • What is the likely gravity of the injury that would be caused if the event occurred?

In addition, when making their decision, the Court must place itself in the shoes of the defendant at the time of the incident. In circumstances demanding a split-second decision, the defendant is not be judged as if there had been time available for calm reflection.

In every case, the defendant must be judged as to what a reasonable standard of care to the claimant would be. The test is objective and not subjective. In the words of every law student’s favourite Judge, Lord Denning: “The learner driver may be doing his best, but his incompetent best is not good enough” Nettleship v Weston [1971] 2 QB 691

However, in the case of Philips v Whiteley (William) Ltd [1938] 1 All ER 566, the standard of care to be applied should not be set at too high a bar. In this case the defendant jeweller who pierced the claimant’s ears should not be held to the standard of a surgeon performing the same task. According to the court, if the claimant had wanted that standard of care, she should have gone to a surgeon to have her ears pierced.

Often, the question as to whether a defendant is to be found at fault is finely balanced and it will be for a Judge to decide, drawing on the previously developed case law and applying that case law to the facts of the case. Every case will be decided on its own facts, and if this test isn’t passed, the claim will not succeed.

The recent sad case of Grimes v Hawkings & Another [2011] EWHC 2004 (QB) shows this in play. The claimant was a young woman who was rendered tetraplegic when she dived into a private swimming pool.

The Court held that it was not the responsibility of the defendant to prohibit visitors to their house from using the pool (and diving in) in circumstances where the dimensions and contours of the pool could clearly be seen.

The case was brought under the Occupiers Liability Act 1957 (OLA), whereby the person in charge of the premises must take such care as in all the circumstances would be reasonable, to see that a visitor would be reasonably safe in using the premises. The Court found that the defendant had not breached his duty of care to the claimant under the OLA.

In addition, the Court did not consider it to be fair, just and reasonable to impose on the defendant a duty of care to the claimant which would require him to put his pool out of bounds for the night, or to prohibit adults from diving in.

The court held that the claimant, by diving into the pool, had done something which carried an obvious risk, and she had chosen to dive in knowing the risks involved. It followed that the defendant was not at fault for the claimant’s injuries. The claim failed.

In summary, both the case law and the legislation pertinent to personal injury claims has been carefully developed to strike a balance between the defendant’s responsibility for ensuring those to whom they owe a duty of care are safe, and the claimant’s own responsibility for their personal safety.

Every case that is taken on by our expert team of personal injury lawyers is thoroughly investigated and carefully considered, and our solicitors apply their wealth of knowledge and experience to each case based on its own facts.

We are champions for those that are injured, who are some of the most severely injured in the country, and the work that we do for our clients is often life changing for them.