Whiplash Negligence - 1st claims putting you first

A Guide to Negligence Law

In English law the law of tort allows you to claim compensation for whiplash if you are involved in a car or motorcycle accident. But what does this law say, and how did it come into existence?

The law of negligence means that in certain situations one person owes a duty of care to another person to not cause them any harm or injury. If that person subsequently does something, or fails to do something, and that action or inaction causes injury to the other person, they are entitled to claim compnensation for the damage (the injury or the losses and expenses in a whiplash claim).

To understand the law of negligence in relation to a whiplash claim it is easiest to use a case study. If Mrs A is stationary in a queue of traffic leading onto a roundabout, she is in a car and she owes a duty of care to all other road users. Likewise, any vehicles behind Mrs A owe a duty of care not to cause harm to her. If Mr B drives up behind Mrs A and fails to stop in time, crashing into the rear of her car, he has breached this duty of care. If this breach has led to damage or injury to Mrs A, she can claim compensation for these losses from Mr B (or in reality his insurance company).

The Losses or Injury Must Be Caused By The Breach of Duty of Care

In the above example, if Mrs A subsequently experienced neck and back pain, the next step in esablishing that she could make a claim for compensation would be to prove that the injuries she sustained were caused by Mr B driving into the back of her car. In theory this is very straightforward, as if she was not injured before and was afterwards, her injuries seem to have been caused by the accident. However, medical evidence is needed to prove that the breach of duty of care did lead to the whiplash injuries to Mrs A. If on obtaining the medical notes for Mrs A it is discovered that she already had bad neck and back pain, a medical expert will have to say whether the pain now has been made worse by the car accident. Unless his evidence confirms this to be the case, Mrs A will have failed to establish that Mr B's breach of duty or care has caused her injuries, and will not be able to claim compensation.

Summary

To prove negligence to be able to make a claim for compensation for whiplash, a person must prove that another person owed them a duty of care, that they breached this duty of care, AND that this breach of the duty of care caused the first person to suffer injuries or losses. Only then will they be entitled to claim compensation.

If you have been involved in a car or motorcycle accident that has led to a whiplash claim, you might be accused of contributing to the cause of the accident: the correct legal term for this being "contributory negligence". Here we look at the possible causes of contributory negligence and whether it prevents you from making a whiplash claim or other claim for compensation.

What is contributory negligence?

To be able to make a claim for compensation for whiplash you first need to prove that someone else was totally or largely to blame for that accident. The law of tort says that you must prove:

That someone owed you a duty of care (to drive carefully and not to cause damage to you or your vehicle)
That someone has breached that duty of care (ie they drove into you)
And that driving into you has caused damage, injury or loss (causation)

If they can prove all of these points they can make a claim for compensation. However, that claim for compensation can still be reduced in amount if the other driver can prove that you were partially responsible for the accident. If they can prove that you were 50% responsible for the accident, then your total claim for compensation would be reduced by 50%, meaning that if the total claim was initially for £10,000, it would be reduced to £5,000. Therefore, contributory negligence can have a serious impact on the total amount of your whiplash claim.

Types of Contributory Negligence

There can be a large number of causes of contributory negligence. For example, somebody driving into the back of you when you are stationary normally leads to a straightforward claim for compensation for your whiplash injury. However, if the other driver can prove that you were braking and your brake lights were not working, he may be able to reduce or completely remove his liability for compensation to you. Each case is looked at on the evidence and your solicitor will advise you on this in detail. It is your solicitor's duty to obtain evidence to support your claim and also to rebut any claim against you for contributory negligence by the other driver's solicitor.

Failing to wear a seat belt

There is one area where you will always be guilty of contributory negligence:- failing to wear a seatbelt. If you make a whiplash claim and the other driver can prove that you were not wearing a seatbelt when the accident took place, your total claim for compensation will normally be reduced by 25%. Therefore, not only should you wear a seatbelt to comply with the law and to protect yourself in the event of an accident, but it also saves you losing one quarter of your compensation if you subsequently make a claim for compensation.

Another example of contributory negligence is failing to wear a helmet on a bicycle, or failing to use a guard on machinery at work when you have been trained to do so.

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