Winning & Losing in a Personal Injury* Claim

Sometimes the Plaintiff ie injured party in a personal injury* claim if they are successful in their case, a court can apportion liability between the injured party and the defendant, and this person is momentarily confused if they won or indeed lost their case.

Heres an example.

Luke (not a real named client) was injured in a work accident. He takes a case against his employer for damages citing negligence and breach of statutory duty for a wedge fracture of a thoracic disc sustained. The employee contends the system of work created by the employer was unsafe and this accident was a foreseeable consequence of the employer’s breach of the Safety, Health & Welfare at Work Act 2005.

An employer under the legislation is obligated to ensure employees are safe at work, as is reasonably practicable, manage work activities in a safe manner and have systems of work that are planned, organised, maintained etc. which are safe and so without risk to the employee.

The employee also contends the employer was in breach of Section 19 of the Safety, Health & Welfare at Work Act 2005 as they did not carry out a risk assessment to assess the risk related to the accident that occurred, and then act accordingly by taking the steps to deal with the risks.

The employer on the other hand denies negligence.

The employer contends the employee is responsible for the accident and contends the injured party was in breach of Section 13 of the Safety, Health & Welfare at Work Act 2005 which requires employees take care to protect their own safety at work, not engage in conduct that would endanger his/her own safety etc. The employer contends the employee was 100% contributory negligent for their own injury and hence should not recover from the defendant employer.

The system of work in place at the time of the accident will need to be assessed by the court and possibly engineers’ evidence given.

If the court makes a decision in favour of the employee, but not 100%, it can apportion liability.
For example, the court concludes the employer breached a duty of care and/or statutory duty to the employee, but also that the employee contributed to the negligence. Therefore the court could conclude, for example, that it holds the employer liable for 75% and the employee-injured party 25%, therefore the person’s award of damages will be reduced by this 25%.


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Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.

8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.