Most accident claims are fault based - meaning that in order for a claim to succeed, you and your injury lawyer it must be proved that the defendant's negligence was the cause of the claimant's injury.
Usually the elements that need to be established are that a duty of care existed between defendant and claimant and that the injury or loss sustained was as a direct result of the defendant's breach of that duty.
There are three further factors to consider when establishing duty of care:
- that the harm was reasonably foreseeable
- that the defendant and claimant were in a relationship of ?proximity'
- that it is fair, just and reasonable to impose liability on the defendant.
Is it always necessary to prove the defendant was at fault?
Not all compensation claims follow this fault principle. Some are based on "strict liability", which is where liability exists without intention or negligence. In other words the defendant need not have intended or known about the circumstance or consequences; but nor does a claimant have to prove that the defendant is at fault.
Strict liability claims include those for product liability and vicarious liability.
Under the Consumer Act 1987 strict liability is imposed on manufacturers whose defective products result in injury. The claimant does not have to prove that the manufacturer is to blame for the defect - just that the defect existed.
It is immaterial that the defendant did not calculate the product's likelihood of causing damage as he exercised all reasonable care in its manufacture and expected it to be fault free. He is still liable for any damage; although he may be able to defend this if he can show the product was not defective when it left the factory, or that the knowledge to avoid the defect was not available at the time of manufacture.
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person.
As a general rule, employers are held vicariously liable for the liable for the acts and omissions of their employees during the course of their employment.
So even though the employer is not to blame for his employee's actions the claimant may bring a claim to the organisation rather than the individual who caused the injury.
Does the claimant have to prove anything at all?
In strict liability cases the claimant must provide evidence to demonstrate that the damage sustained was caused by either the product defect (in product liability) or the employee (in vicarious liability).
If this is not the case the claimant may only recover nominal damages.