Defences against personal injury claims

What are personal injury claims?

An individual who suffers personal injury as a result of someone else’s negligence or breach of duty can make a legal claim for compensation for personal injury. However, not every case will succeed – even those cases that may seem, at first glance, concrete cases.

The most common types of personal injury claim include:

  • Road traffic accidents
  • Accidents at work
  • Public liability (eg. tripping in a public place)
  • Assault claims
  • Product liability involving defective products
  • Holiday accidents
  • Medical and dental accidents

Personal injury also includes conditions that are classified as industrial disease cases, such as asbestosis and mesothelioma, vibration white finger, chronic bronchitis, asthma, deafness, occupational stress, and so no.

When an individual who has suffered personal injury makes a compensation claim against someone else (ie. the defendant in the case), the defendant either admits liability (or partial liability) or defends the claim. Any defence must be served within 14 days after the Acknowledgement of Service is filed.

What defences are available in personal injury claims?

The case is time barred

Under the Limitation Act 1980, an individual claiming for personal injury compensation must start formal proceedings within three years of the date of the accident, or within three years of the date of knowledge of their potential claim for personal injury compensation (see limitation period in personal injury claims). There are exceptions: for instance, in the case of children the three-year period does not start to run until their 18th birthday; and the limitation period is also extended for individuals suffering a mental disability.

If proceedings are not commenced within the prescribed limitation period, the individual may not be able to make a claim. Although the defence will most likely apply to have the claim dismissed on the basis that it is time barred, the court has a discretion to waive or extend the limitation period if it is equitable to do so, for example, if it is a very strong claim and liability is undisputed.

What defences could there be against a particular claim?

The defendant may have several possible lines of defence to avoid or limit the claim, for instance:

  • The accident or incident was not caused by the defendant.
  • The accident or incident was partly caused by the claimant.
  • The accident was caused by a third party, not the defendant.
  • The defendant had no legal duty of care towards the claimant.
  • The injuries or condition were not caused by the accident or incident.

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For more information on:

  • Contributory negligence
  • Automation
  • Insurance claims