How to determine who’s at fault in personal injury cases

Who is at fault, is responsible for paying damages

The most important thing in personal injury lawsuits and insurance claim settlements is determining who is at fault.

Determining this is crucial because once it is established, the party who is at fault is responsible for paying damages to the injured party, either through settlement negotiation or court order.

Who determines liability?

Deciding on who is at fault usually depends on the case circumstances, but injured parties that are represented by our expert team of Gold Coast & Brisbane injury lawyers can expect that their lawyer will investigate the case, discover all potential parties at-fault, and make a final determination of liability.

Parties who might be liable in an injury claim often have liability insurance.

This leaves the responsibility for the payment of any damages awarded at court or, more often from settlement negotiations, to insurance companies.

Insurance providers usually conduct their own investigations

Insurance providers usually conduct their own investigations and make their own decision on liability.

If the parties involved can’t agree on liability, then they may be forced to pursue litigation to trial and have the court make the final decision as to who is at fault.

Using negligence to prove fault

Most cases of injury claims arise because there is a party that acted negligently. Negligence is a conduct that falls below the expected standard of care from a reasonable person and causes harm to another.

There are legal elements that need to be proven in order to hold someone liable for personal injury damages.

These elements are as follows:

  • Duty – There must be a legal duty owed by the defendant to the plaintiff for a successful personal injury claim. For example, all motor vehicle drivers owe a duty of care to other motorists on the road.

  • Breach – The plaintiff must prove that the defendant breached that duty of care. Using the motor vehicle driver example, a breach would occur if, whilst driving, a motorist looked down to their mobile phone and typed a text message, and caused a collision as a result.

  • Causation – The defendant must be the reason for the injuries or harm experienced by the plaintiff. In most injury compensation cases, this element is fairly obvious. For example, if the defendant’s vehicle rear-ends the plaintiff’s car and the plaintiff is diagnosed by her doctor as suffering a whiplash injury from the impact, then causation is not going to be an issue in this case.

  • Damages – The plaintiff must incur loss and damage from the breach of duty. In personal injury claims, the damage is the injury sustained and the consequential loss and damage that flow from those injuries, such as pain and suffering, loss of income, medical expenses, the need to engage care and assistance etc.

  • Other  – Other methods of proving fault

There are injury claims where traditional negligence is not involved. Fault can still be established by the plaintiff in various ways, such as:

  • Proving intentional conduct;

  • Proving breach of statutory or contractual duty; 

  • Showing that the claim is subject to the strict liability standard of proof.

intentional conduct

Intentional conduct is conduct that is voluntarily undertaken with a desired purpose or substantial certainty of the consequences.

If an individual targets another person and punches him or her without excuse, this individual has engaged in intentional conduct and might be guilty of battery.

Breach of statutory duty

Breach of statutory duty applies when there is an unexcused violation of certain legislation.

In this case, the defendant is automatically liable for the damages if the plaintiff’s injury is of the type the statute is trying to prevent, and if the plaintiff belongs to a group of people the statute is trying to protect.

Strict liability applies in limited circumstances. Where it applies, generally the only requirement to prove a strict liability offence is showing that the plaintiff suffered a foreseeable injury whilst involved in a qualifying situation. The most common cases of strict liability are product liability cases.

Proving fault

Relatively, the legal elements of negligence and strict liability are straightforward.

However, proving each one of them can be more difficult, and fault must be proved in every personal injury case using facts and evidence of the particular case.

Informed and legally sound liability decision

Lawyers and other parties that are trying to establish liability should complete extensive investigations of the facts, details and circumstances of the claim, this is so that an informed and legally sound liability decision can be made.

Such investigations usually include physical evidence collection, interviews with witnesses and other involved parties, and hiring and consulting experts.

The most common types of evidence used in proving fault in injury claims include police reports, statements, and documents and records kept by both parties.

Legal defences in personal injury claims

There are several defences a defendant can allege that can reduce or totally eliminate an injury claim. The most common defences include the following:

  • Joint liability or delegation of duty of care.

In many cases, there is more than one party that is at fault for an incident.

The law accounts for these circumstances and permits differing percentages of liability to be attributed to different parties.

Delegating duty of care to another party at fault

In some cases, one of the parties may be found to have delegated its duty of care to another party at fault, so that that other party has to take liability in full for the claim.

A common example is where a principal contractor engages reputable subcontractors to carry out work on a contractual site, and the subcontractor negligently causes an injury.

In such cases, the principal contractor who may otherwise be ultimately responsible for the site, may be permitted to delegate this duty of care.

Assumption of risk

The defendant can show that the plaintiff had knowledge of the risk and possible injury, but voluntarily assumed this risk and was injured as a result.

A common example is where a passenger gets into a vehicle with a drunk driver, or undertakes an activity that holds a high or obvious risk of injury.

Absence of employee liability

If an employee causes an injury, he or she may not be personally liable for damages if the injury happened whilst the said employee was working.

In such cases, the employer is usually liable for the damages.

Trespasser defence

Whilst the owner or occupant of a property is liable for their negligence that causes injury to those legally entering their property, they may not necessarily be liable for those unlawfully on the property when injured.

In any event, the standard of care the defendant is expected to meet in regard to the trespasser is significantly reduced in such circumstances.

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