What if it's not clear who’s to blame for my injury?
If you have been injured but it is not clear who is responsible, it is often still possible to make a compensation claim. The process will, however, depend on the circumstances of your injury.
Establishing who is liable for your injury
In most cases, to make a successful injury claim your solicitor will need to establish that:
- your injury must have happened in the last 3 years (limitation) and
- your injury must have been caused by another party (causation) and
- that party must have owed you a duty of care (liability).
If the defendant accepts liability, your claim should be relatively straightforward.
If the defendant denies liability, at least you will still know who your opponent is.
If you don’t know who caused the accident (or the identity of the other parties involved), proving liability and causation will be considerably more challenging.
I know the identity of the other party (the defendant)
If you know the identity of the other party, your solicitor will need to establish that the other party owed you a duty of care.
A duty of care is when a person, company or organisation has a legal obligation to safeguard the well-being of others. For example:
- employers have a duty of care to their employees
- road users have a duty of care to other road users
- doctors owe a duty of care to their patients
- Supermarkets have a duty of care to their customers
The duty of care relationship is usually straightforward to work out if you know who the other party is.
Establishing causation, however, can be more complicated if the defendant denies liability or argues that there was fault on both sides:
What if the defendant denies liability?
At the start of your claim, your solicitor will send a letter of claim to the defendant, their insurance company, or both.
If the defendant denies liability, your solicitor will collate as much evidence as possible. An ongoing negotiation will follow as the evidence is collated.
If the evidence supports your claim but the defendant continues to deny liability, your solicitor may start court proceedings. However, negotiations will still continue right up to the trial date as all parties will usually still prefer to avoid a court hearing.
What if I am partly to blame?
It may be that you and the defendant are both partly liable for your injuries. It might be argued that your actions contributed to the accident or your injuries. This is known as contributory negligence.
Common examples of contributory negligence in accident claims include:
- Drivers who were not wearing a seatbelt.
- Cyclists not wearing a helmet.
- Failing to seek appropriate medical care after an accident.
If the defendant can show that there was contributory negligence on your part, your compensation may be reduced to reflect the degree to which your actions contributed to the accident. A spilt-liability agreement may then be agreed with the defendant.
- if a split liability is agreed on a 75:25 basis in your favour, it means that the defendant accepts 75% liability for the accident and you (the claimant) accept 25%. In this example, you would receive 75% of the overall claim value.
- If liability is agreed on a 75:25 basis in favour of the defendant, it means you (the claimant) accept 75% liability for the accident and the defendant accepts 25%. In this example, you would receive 25% of the overall value of the claim.
Liability for an accident is more likely to be disputed if there was contributory negligence.
Liability may be denied by the defendant - either immediately at the accident scene, following a formal letter of claim, or following the issue of proceedings.
If the defendant's solicitor offers a strong defence, which is likely to be upheld in court, your solicitor may advise you to drop the claim.
I don't know the identity of the party
It may be that you don’t know the identity of the person who caused the accident - in a hit-and-run accident for example.
Solicitor's are experts at ascertaining who is liable for an accident. In collating the evidence to support your claim, the solicitor may well be able to identify the defendant.
Depending on the circumstances of your injury, it may be possible to make a compensation claim even if you don’t know who caused your accident.
Road traffic accidents
If you are in a collision with a driver who flees the scene of the crash, you should inform the police and your insurer without delay. Both will both try and locate the negligent motorist.
If attempts to identify the driver fail, or if the driver does not have insurance, your next port of call should be the Motor Insurers' Bureau (MIB).
The Motor Insurers' Bureau (MIB) is an independent body that pays road accident compensation to the victims of uninsured or unidentified drivers. The MIB is funded by contributions from car insurance premiums.
Injuries at work
Accidents at work are a special case. Even if you believe you were fully or partly responsible for your injuries, your employer may still have breached their duty of care towards you. If your injuries were caused by another employee, the employer would be held liable for that employee's actions under the principle of vicarious liability.
Industrial disease and illness
If you have been made ill following prolonged exposure to a hazard or toxin at work, establishing causation can be difficult.
In cases of asbestos-related disease, for example, you may have been exposed numerous times during your working life. In this example legislation exists to compensate workers affected by asbestos exposure, and their families, in cases where it is not clear which company they were working for when the exposure occurred.
If several employers are responsible for your illness, each employer may be held responsible and your compensation may be paid in proportion to the amount of time you spent working for each employer.
Read more: Claiming compensation for Industrial disease
Accidents in a public place
Your solicitor will carry out a full investigation into your accident in an attempt to ascertain who owned or operated the environment in which you were injured. Once established the solicitor will seek to prove there was a breach in that party's duty of care.
If you are were the victim of a violent crime, you may be able to claim compensation from the Criminal Injuries Compensation Authority (CICA), even if the offender is not convicted of the crime or their identity is unknown.
The CICA is a government agency that has the authority to pay compensation to the innocent victims of crime in England, Wales and Scotland. Funded by the taxpayer, the CICA pays out compensation regardless of whether the assailant is caught, prosecuted or convicted.
What if more than one person is to blame?
It may be that multiple parties contributed to the accident. If two or more speeding cars collided with you, for example.
The courts will attempt to apportion blame on a case by case basis. Where liability can be split based on the contribution of each party, this will be reflected in a split liability agreement. If the contribution f each party is less clear, the court may rule for a 50:50 split liability agreement.
Claiming compensation depends on the circumstances of your injury. Click the icons below for read more:
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Questions about the injury claims process?
Get all the answers in our comprehensive FAQ section:
- How will a personal injury claim affect my benefits?
- Will I have to pay tax on my injury compensation award?
- Can I make a personal injury claim for someone else?
- Can I claim injury compensation if there were no witnesses?
- Can I make an injury claim if I don't know who's to blame?
Gaynor Haliday, Legal researcher
About the author
Gaynor Haliday is an experienced legal researcher and published author. She has had numerous articles published in the press and is a legal industry commentator.