Defending a Personal Injury Claim

Personal Injury Claims

Personal injury claims can arise in many circumstances, including:

1. An injury arising from a motor vehicle accident.
2. An injury caused by a defective product.
3. An injury at work, or during the course of ‘employment’.
4. An injury which occurs as a result of abuse or an assault, or a threat of assault.
5. An injury which occurs as a result of a ‘slip or fall’.
6. An injury which occurs on or near your private property/dwelling.
7. An injury which occurs on or near your business property/dwelling.

What if I have insurance?

In most instances, individuals and companies are covered by insurance for any such injuries. If you are covered by insurance, the insurance company will manage and fund the defence of that personal injury claim. In these circumstances, the risk to you (or your business) will likely include an increase of premiums by your insurance company.

We recommend that if you receive a claim against you or your business, you refer the matter to your insurance company as soon as possible. Failure to do so, under certain policies, might result in the insurer waiving your coverage in respect of that incident or claim. That said, it is not uncommon for individuals and companies to reach out and obtain independent advice from a solicitor, before referring the matter onto their insurance companies. Many choose to do so to: avoid paying extraordinarily high premiums; and, to maintain some control over the matter. Once the insurer is involved, the control unavoidably shifts to them.

In some circumstances, there may be risks outside of personal injury laws which of course might include criminal action (depending on the nature of the incident).

If you wish to obtain advice or guidance from a qualified solicitor, before referring the matter onto your insurance company, please contact Marsdens’ Injury Compensation team.

What if I don’t have insurance?

It is not uncommon for an injured person to bring a claim against an uninsured person or company. This is usually more common in matters involving assault. However, there are other times where this could become an issue, including:

1. You (or your business) were uninsured for the incident which occurred.
2. Your insurance policy may have lapsed at the time of the incident/accident.
3. Your insurer refuses to cover you in relation to the incident/claim.

If you are uninsured, it is crucial to seek legal advice as soon as you are notified of a claim for personal injury. In some matters, immediate action can make all the difference to the amount of compensation you or your business might be required to pay. Our team of qualified solicitors are experienced and ready to help you manage any such claims.

Can I defend the claim?

There are a range of factors which may be relevant when you are defending a claim, including:

1. Time limitations. Is the person entitled to make a claim or are they out of time? 
2. Does the person have pre-existing or subsequent injuries, which would reduce your liability? This is a matter for medical evidence but would certainly be investigated.
3. The “assumption of risk” – there may be a defence to the claim if the injured person ought to have assumed the risk of injury. This defence is typically applicable for matters involving sports, dangerous recreational activities, or in matters where the injured person was ‘behaving in a certain way’ that it would be reasonable to expect that an injury may occur. This includes any reckless behaviour on the part of the injured person.
4. Was the risk of injury obvious? This defence may be available where the risk would have been obvious to a reasonable person, in the position of the injured person. The law does not require warnings for obvious risks.
5. Did the person contribute to the incident or their injuries? The “contributory negligence” defence may apply where an injured person failed to take reasonable care for their own safety. This can result in a reduction of the damages awarded to that individual.
6. Has the person contracted out of their entitlement? Sometimes, contractual defences exist in circumstances where there is evidence that the injured person contracted out their right to sue for injury.

If you need to defend a personal injury claim, we recommend that you engage a lawyer to advise and represent you. If you have received a letter of demand or Court documents, we encourage you to reach out to Marsdens’ Injury Compensation team to discuss what that means for you, or for your business.

The contents of  this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.