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How do I get liability response?

For claims with an expected value up to £5,000 a small claims notification form is submitted and the third party insurer has 30 working days to respond.

For claims between £5,000 and £25,000 a claim notification form is submitted. The third party representative should acknowledge the form the next working day after receiving it and confirm if liability is admitted or denied within 15 working days.

For claims with an expected value above £25,000 a letter of claim is submitted to the defendant, their employer or insurance company. The defendant should acknowledge the letter within 21 days of receipt and confirm if liability is admitted or denied within 3 months of their acknowledgement.

The procedure may be different if the defendant is uninsured or unidentified. If this situation applies to you, we will discuss this in more detail with you.

In personal injury claims, following a road traffic accident, the issue of liability is often thought of simply as whose fault the accident was and, whilst this is certainly a key issue, it is not the whole story.

For a defendant to be held liable, the claimant must prove the following: –

  • The defendant owed them a duty of care;
  • The defendant breached this duty of care;
  • The defendant caused them loss or damage (which includes injury).
  • that the loss was a reasonably foreseeable consequence of the breach

If the defendant admits liability then you don’t need to prove any of the above.

Who is the defendant and claimant?

The defendant is the person who the claim is brought against. Often referred to as the other or third party. The claimant is the person making the claim.

What factors into a liability decision?

Duty of care

All road users owe a duty to take reasonable care to avoid causing injury or damage to all other road users.

It does not matter whether a defendant could reasonably foresee injury to the claimant, all that matters is that it would be reasonably foreseeable to cause injury to any road user.

It is already established that all road users owe each other a duty of care, so it is very unlikely a defendant will dispute they owed a duty of care.

Breach of duty

To prove a defendant breached their duty of care, the claimant must show the defendant’s driving fell below the required standard (the skill of any reasonable person).

The Highway Code is a useful tool in establishing whether the defendant’s actions fell below the required standard. Rule 166 for example recommends you do not overtake whilst going round a corner. So, if a defendant was overtaking on a corner and crashed into someone, it is likely the Court will find that his driving fell below the required standard and breached their duty of care.

Some rules in the Code are legal requirements (ones that say you ‘must/must not’), so failing to comply with these rules is a criminal offence. If the defendant is found guilty of a driving offence relating to the accident, it can be assumed the defendant breached their duty of care unless they prove otherwise.

Reasonable foreseeability

Even if a Defendant, has admitted that they owe a duty of care which they have breached, the Claimant still has to prove that any loss was reasonably foreseeable as a consequence of the breach.

This is a challenging area of law, in most cases it is straight forward, but sometimes remoteness of loss is pleaded by the defendant- for instance where say a relatively minor injury at first is caused by the accident, but it turns into something much more serious.

Defence

The defendant can deny breach of duty in their defence. This would be a complete defence. The claimant must then prove the defendant breached their duty of care or their claim will fail.

There are other defences available, even if the defendant admits to breaching their duty of care. The most common in road traffic accidents is a defence of contributory negligence. This is a partial defence to causation and has the effect of reducing the claimant’s compensation. The amount of the reduction is decided based on how much the claimant contributed to the loss being claimed. A successful defence of contributory negligence cannot reduce the damages to nothing; hence it is only a partial defence.

A contributory negligence defence could be used where the defendant alleges the claimant contributed in some way to the accident.i.e. through their own actions they partly caused the accident Common examples include driving too fast, failing to check mirrors before changing direction or overtaking at a junction.

It is also possible to allege contributory negligence where a claimant has failed to protect themselves and so increased the severity of their injuries or loss. Common examples include failing to wear a seatbelt or helmet.

Other defences are rare but include:

  • An involuntary act: the defendant was subject to an unforeseen disabling condition.
  • Consent: the claimant consented to the risk of injury or damage.
  • Illegal activity: the claimant was involved in illegal activity.
  • Abuse of the process: the claim has previously been decided by the court.
  • Limitation: the claimant is out of time to bring a claim.
Causation

Causation can relate to the circumstances of how the accident was caused, as discussed above with regard to contributory negligence, or as to what consequences the accident has caused, in this way Causation includes three elements: factual causation, legal causation, and intervening acts.

Factual causation considers whether the loss or damage (including injury) being claimed were caused by the defendant’s breach of duty and uses the ‘but for’ test. For example, if the damage claimed would not have occurred, on balance of probability, but for the defendant’s breach of duty then factual causation is established.

It is quite rare for a defendant to admit causation (except in the most straightforward cases), as the issues, usually relating to injury, are often outside their knowledge.

It is the role of an expert witness to advise the Court on the issue of causation. For example, if you suffer a whiplash injury to your neck, a suitable expert witness (usually a GP or Consultant) will advise the Court whether this injury was caused, on the balance of probability, by the accident. In complex cases, the defendant may choose to instruct their own expert witness(es).

Failing to prove causation for the whole claim means your claim will fail and you will not be awarded any damages. Failing to prove causation on just one part of the claim means you will not be awarded damages for that part of the claim.  Legal causation considers whether the loss being claimed was reasonably foreseeable.

An intervening act will break the chain of causation between the defendant’s breach of duty and the loss suffered. An intervening act can be an act of the claimant (doing something which makes an injury worse), an act of a third party (another accident), or an act of nature (unrelated arthritis).

Help and Advice

Whether you’re a customer, acting on a customer’s behalf, or just wanting to find out more - check out Minster Law's help and advice. Our frequently asked questions, claims journey, and glossary will get you started.

Help & Advice