Accidents are often not the fault of just one person. Where there is a dispute over liability for the accident a court will often apportion blame between the two parties on a percentage basis. This doctrine is known as contributory negligence and injury compensation that is awarded to each party will reflect the percentage that they are held to be liable for the accident.
The Law Reform (Contributory Negligence) Act 1945, section 1 (1)
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility of the damage”.
Before the Law Reform (Contributory Negligence) Act 1945 came into force any lack of care by the claimant could provide a total defense to a claim which often thereafter failed thereby making many cases very difficult to win.
For either or both parties to be negligent it is necessary to show that they owed each other a duty of care which is no problem regarding work accidents, road traffic accidents and tripping and slipping cases. The guilty party must have breached that duty of care by failing to act reasonably in doing something that a reasonable person would not have done or failed to do something that a reasonable person would have done. In addition, damage, injury or financial loss must have occurred to the victim directly as a result of the other parties’ actions.
As an example of this doctrine if there is a failure to wear a seatbelt when travelling in a motor vehicle that is involved in a collision then it could lead to an assessment by a judge that there is contributory negligence on the part of the claimant with regards any injury sustained in the accident. If however failure to wear a seat belt did not worsen the injuries that would have happened in any event even if the claimant had worn a seat belt then damages will still be awarded in full with no percentage reduction. The claimant’s failure must have materially contributed to the injuries in order to attract a reduction in the injury compensation award.
THE LIMITATION ACT 1980
Making a claim for compensation for personal injury involves compliance with the Limitation Act 1980. Legal proceedings must be issued in a court of law within a set period subsequent to an injury failing which the opportunity to claim compensation may be lost forever. The time limit is generally set at three years following the instance of negligence, although that term may in some circumstances be extended. There are exceptions to the standard three-year limit under The Limitation Act 1980: –
In circumstances where the individual incurring the injury suffers from mental disability, the limit period only starts when full mental capacity has returned and in situations where mental disability is ongoing, damages can be pursued at any future time.
When the person sustaining the injury was under 18 at the time of the accident, the three-year period only starts to run on their 18th birthday. If the three-year period then expires and they still have not issued proceedings that person will have lost the opportunity to claim, unless they also suffer from mental disability.
Under the Limitation Act 1980 the courts have a discretion to extend the time limits, although the occasions on which they do so are rare. If you think the Limitation Act 1980 has invalidated a potential claim, you should obtain expert legal advice as soon as possible.
Criminal Injury Compensation
Applications to the Criminal Injuries Compensation Authority (CICA) have different time limits to applications for personal injury compensation in a court of law. The CICA is government funded to provide injury compensation for the victims of crime. The overall CICA time limit is two years however that may be varied for historical child abuse claims.
In the case of industrial disease claims there is often a very long period, frequently several decades, between exposure to a contaminant and the appearance of signs and symptoms of the disease. In these circumstances the three-year period does not start running until the disease or illness was discovered or should have been discovered by the exercise of reasonable diligence. It is important to obtain legal advice as soon as there is any suspicion of an industrial disease.