Many people wrongly assume that they are automatically entitled to compensation if they injure themselves at work or whilst on another person’s premises. This is simply not the case. In order to bring a claim, you have to prove on the balance of probabilities that the third party has somehow been negligent and if you are unable to do this then you will not be entitled to any compensation at all.

Genuine accidents do occur through either nobody’s fault at all or perhaps due to a person’s own carelessness. If you trip up in your local supermarket but there was no visible hazard then you cannot simply argue that the supermarket is responsible for the injuries you sustained. How can they be expected to repair a walkway or clear a hazard if there is no visible defect? Equally, if you fall downstairs at work and there was nothing on the stairs to make you fall, you were not carrying a heavy load and the handrail was not broken then, again, you cannot argue that your employers should compensate you. Genuine accidents are just that – accidents.

But can there be any middle ground where a third party and the injured party are both somehow held to blame? This is where an injured party proves that the third party is liable for the accident but then the Defendant argues that the injured party is ‘contributory negligent’ for what occurred. A 2004 Court of Appeal is still good law for showing that employees can often be found more blameworthy than their employers, despite primary liability being established. The Claimant in Sherlock -v- Chester City Council lost his left thumb and index finger whilst using a circular saw. Even though the Court found that his employers had been in breach of various statutory duties towards the Claimant, they held the Claimant 60% to blame for the accident because he was highly experienced and knew that he should have sought the assistance of a colleague or, alternatively, a second workbench to balance the bowing wood on.

The effect of being held partially to blame for an accident means that your compensation will be reduced by the same proportion as you have been found responsible. In the case mentioned above, therefore, the Claimant’s damages were reduced by 60% which represents a considerable reduction to his claim. It is indeed surprising in this case that he was found to be more to blame than his employers!

You can also be held partly to blame if you have somehow made your injuries worse. A common example of this is where you are involved in a road traffic accident and you are not wearing your seatbelt. If, by wearing your seatbelt, your injuries would not have been as bad then your damages can be reduced by up to 25%.

The lesson to be learnt is, therefore, that injured people cannot automatically pin the blame on the third party. Genuine accidents will not attract any compensation and, even when you can prove that an accident is someone else’s fault, you may face an allegation that you were partly to blame for the accident and your damages could be reduced accordingly.

CAPTION: Claire Kirwan. Partner, Personal Injury and Medical Negligence Team

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