The Essential Ingredients of Any Personal Injury Case

I am preparing this long article for the website to help our clients to understand the basic ingredients of any successful personal injury case.

The thing you and we need to decide is whether your case is good or bad, and whether to pursue it against the Defendant. I therefore want to simplify this down to a level where if you follow these basic questions and rules then you will see more clearly how we assess a case and how we decide whether to pursue it. It will also help you to help us as we work on your case because you will understand better what we are doing and why we are trying to prove certain things.

With any case, at any stage you need to look for five fundamental ingredients, namely:

(a) Duty

(b) Breach

(c) Causation

(d) Loss

(e) Foreseeability (it must not be too far removed from the original negligent act)

There is a sixth vital ingredient, namely evidence. That is that for each of these five things that you have to prove, you need evidence to do it. It is not enough just to say a thing; it needs to be proved by showing as many facts or documents as you can which help to prove what you're alleging. Both you and we need to be focused on gathering evidence from the outset.

I will now explain each of these main ingredients in turn and try to give some examples.

A FIRST INGREDIENT - DUTY

No matter what the case is about, the first thing you have got to show is that the proposed Defendant or Defendants owed a duty to you. I emphasise this because all sorts of bad things can happen to a person whether they are at work or on a road or wherever without necessarily giving rise to any liability on the part of the person that they are blaming for it.

So the first thing you have to show is that the Defendant owes a duty or rather a duty of care� to you. To start with we ask if there is a general duty. This can come in a number of forms. It could be that the duty arises because the proposed Defendant is your employer or else the occupier of premises or the driver of a vehicle, or is a Highway Authority, or is in loco parentis (i.e. in the position of a parent), such as a school, nursery or playgroup or scout group etc.

The first question you have to ask then is does that Defendant (as opposed to people generally) owe to you (as opposed to other people) a general duty of care. We must begin by looking at it in general terms rather than in the specifics. So, we have to identify what the Defendant is or does or has that makes him have a duty. So can we show that he is an employer or an occupier or a highway authority or in loco parentis etc? It may be in some cases that this is just plainly obvious. However, it is not always obvious and we have to begin by asking this basic question.

However, let us now assume that you have already answered that question and so you can now say, Yes, the proposed Defendant is my employer, so he owes me the duty of care that any employer has�. You then have to look at the specifics and say, Yes, but does the proposed Defendant also have a specific duty to do X,Y,Z?� For example, I came across a proposed claim some time ago concerning a child who went ice skating as part of a children's birthday party. She was injured when she slipped on the ice. We weren't able to pursue the claim and I'll explain why.

Example 1 on Duty - Ice Skating Case

The child had slipped on the ice at the ice rink and broken her wrist.

In this case the people running the Ice Rink would be said to be occupiers�, i.e. of the ice rink. Therefore they owed the general duty of an occupier to any person attending the ice rink. (This duty is at varying levels, depending on whether the Claimant is an invitee or trespasser.)

You could even argue that given that the parent has paid for the child to go onto the ice rink, then in contract law there are also certain implied or even express contractual terms that create a duty that the ice rink will be safe and well managed and so forth. I am speaking in theory and in general here, i.e. these extra duties could exist.

Thirdly, you might even argue that the people organising this girl's birthday party could be in loco parentis, i.e. owing a duty of care to the child as if they were a parent. I am not saying they were, but you might consider it and it could sometimes be true. If you can show one or more of these duties apply, then you will have established that there was a general duty of care to that child.

However, what still needed to be established was a specific duty to do certain specific things. What I mean is that you can't just show that the proposed Defendant is an occupier/employer/Highway Authority, etc and just stop there and assume that that settles it. You also need to show that their general duty (as an occupier or employer etc) included specific duties to do (or not do) the particular thing that you are saying caused the accident. They may well owe a general duty of care but not have any duty to do (or not do) that particular thing that led to the accident

In this case, our client was arguing that the people operating the ice rink had a specific duty to provide supervisors� on the ice, i.e. to watch the kids skating. There is obviously a general duty of care to people on the ice rink, but that does not mean that there is a specific duty to closely supervise the children on the ice. Why should they? How can they? Remember the law is meant to be sensible and as such, it does not require people to do impossible or even unreasonable/unrealistic things. If in doubt, say to yourself would it be realistic/reasonable to expect an employer/occupier/Highway Authority etc to do X Y Z?

The parent also argued that the ice rink also had a specific duty not to make the ice so slippery! That is clearly silly. It would not be reasonable, in the ice rink case, for there to be a specific duty to make the ice less slippery. If they did, what use would it be for skating? Do you see the problem here? What sometimes happens is that a client may be able to show that the proposed Defendant is of a type or capacity or status that creates a duty in general terms to the client, but they then fail to show the specific duties that we need to prove. So, in the ice skating case we had to turn it down because there was no specific duty to closely supervise the child on the ice and no duty to make the ice non-slip! I imagine they would not have many customers at the ice rink if they did.

However, what if there had been a hole in the ice and the ice rink had failed to notice it or to fill it in? Then there could well be a claim, because that is a specific duty you can clearly say the ice rink does have, i.e. to keep the ice smooth. So, it all depends on the facts and even slight changes can make all the difference.

Example 2 on Duty Passer by and Drowning Child

Imagine a passer by sees a young child drowning in a shallow pool or stream while out walking, where he could easily save the child's life at no effort or risk to himself. What if he just stands by and watches the child drown, or just walks on?

The answer is there's no civil liability if he does that (and no crime either) because there is no duty at all.

This is because the passer by

a) didn't cause the child to be in its predicament (if he had, he would then have a duty to get it out).

b) isn't a parent or child minder or police officer etc who can be said to owe the child a duty of care. Such people would be liable if they stood by and did nothing.

You may think the example is far fetched and obscure but, what if we change the facts to say a passer by who sees a child or adult having a fit or choking or needing some urgent medical help but does nothing to help in any way? That is much easier to imagine. Again, there's no general duty to give any first aid.

But, what if the passer by does give first aid, but does it negligently and actually increases the injury?

Here, the passer by could now, in theory, be liable because although he had no duty to do anything, he volunteered to act and therefore took upon himself a duty to act with a level of care consistent with what he is, i.e. an ordinary passer by. The level of that duty is going to be very low i.e. not much is expected of an ordinary man, but, even so, some kind of duty would come into existence. (It would be a higher level of duty if the passer by who intervenes happened to be a doctor or nurse.)

Note just for interest, in some US states they are bringing in laws to protect passers by from being sued when they give first aid (negligently) because so many people are too scared of being sued to be willing to help an accident victim who needs first aid. So, it obviously does arise.

Example 3 on Duty - Street Lights

What if an accident occurs because the street lights are defective/non existent? Can you sue the Highway Authority? Probably not, because although the Highway Authority has a power or right to put up street lights there is no duty to do so.

So, if lack of lighting is the only cause of the accident, you are unlikely to be able to sue the Highway Authority.

Example 4 on Duty - Employee Hit by Meteorite

What if you were hit by a meteorite or lightning while walking in your company's car park? What if it could be shown that had your employer provided a metal frame over your head you would have avoided injury? There'd be no liability, because the employer isn't under any duty to protect you from things such as that. The duty of the employer just doesn't go that far. It is just a risk we all have to take.

B SECOND INGREDIENT - BREACH

If we have established that there is a general duty of some kind and then a specific duty to do (or not to do) something that should or should not have been done, you then have to go on to show that there was a breach of that duty. This is a very basic point, but a vital one. You will be surprised how many cases there are where we have to say to the client, But where is the breach what has the Defendant actually done wrong?� Taking the ice skating example, even if you could show certain duties were owed to the party of girls having an ice skating party, where is the breach of those duties? So, if we say that the ice skating rink are under a duty to act reasonably, or to keep their premises safe or a duty to provide a reasonably safe system or a duty to reasonably supervise the children etc, where were there any breaches of those duties?

Some people phone up believing that if they have had an accident which is not their own fault, then they will automatically be entitled to compensation. Subject to what is said below about strict liability�, we still have to show that the Defendant did something wrong i.e. was in breach of some specific duty owed to the Claimant.

Example 1 on Breach - Bottle Delivery Case

Let me give you another example that perhaps illustrates it better. We had a case a few years ago where a man had a job delivering bottles of mineral water. However, each bottle only weighed a reasonable weight. This man carried a bottle into a block of flats and carried the bottle up the stairs. I think he had to deliver 3 bottles i.e. one by one. As he did this, he somehow put his back out and sustained an injury. So, in that case we had a situation where we had the following ingredients in place:

(a) A general duty - yes - because this man was an employee of the Defendant

(b) breach? - see below

(c) Causation - yes it seems that carrying the bottles did cause the injury

(d) Loss - yes the injury had caused him loss of wages and also pain and suffering.

(e) Foreseeability - see below

However, although three of the essential ingredients were present, the case could not be pursued because there was no breach of any duty.

I said to the client, "What has the employer done wrong? In what way is the employer in breach of his duty to provide a safe system and place of work?"� Neither he nor we were able to come up with anything. The point is that if a man has a job delivering water bottles and if those water bottles are perfectly reasonable in their size and weight for a man like him to carry, how can we say that an employer should not employ him to deliver those water bottles? If nobody was employed to deliver water bottles, then how could water bottles be sold or used? Effectively, we would be saying that it should be wrong to produce or sell water bottles. Of course Parliament could legislate to that effect, but it has not done so.

What I am getting at is that these water bottles, although they actually did cause this client an injured back, were not, in themselves, unreasonably heavy or unreasonably bulky. And he did not have to carry an unreasonable number of them or over an unreasonable distance or in an unreasonable manner. Nothing that this employee was asked to do was in any way unreasonable. Nor could any employer reasonably foresee that it would cause any injury. (NB Had there been something unreasonable or inappropriate in any of these ways e.g. if the bottles had been bigger, our answer would have been very different).

Therefore, although he actually did get injured and although the injury did produce loss, there was no liability and no case, because although the employer has various duties to that employee, in this case, he had not breached any of them. In other words, the employer here had not done anything wrong.

You need to remember that sometimes in life people get injured, even when they are doing perfectly proper, normal, acceptable things. Alternatively, it could just be their own fault or the fault of an unknown person or nobody's fault.

Example 2 on Breach - Door Closer

I had a new enquiry call brought to me some years ago by a colleague where the facts changed a little bit as we got more details from the client. The initial story as told on the first 0800 call was that the client's daughter, aged 9, was at school and I think was out in the playground when the doors going onto the playground slammed on her fingers and injured them. Initially we were told that the door had slammed because a boy aged 9 who was meant to be quite a naughty boy had slammed them on her fingers. Moreover, we were told that he had a reputation for slamming doors and that the school was aware of this and had evidently not prevented him on this occasion from slamming the door.

At that point we were talking to the child's father and he did not want to sue the 9 year old boy, but rather wanted to sue the school for failing to prevent him from slamming the door on his daughter's fingers. That's how it seemed at that point. However, I asked my colleague to go back and get more information. After speaking to the child's mother, a slightly different story emerged. She said that in fact, in her view, the problem was caused by the fact that the automatic door closer on the door (i.e. the little arm with a spring that makes the door close) was not working. Therefore the door swung shut rapidly rather than being slowly shut by the door closer. That is what she thought was the cause of the accident, not the 9 year old boy, who had not, apparently, got as bad a reputation as the father had said, and who may not have been involved anyway.

So, we looked at this situation and I went through with the client a bunch of different alternative scenarios that might apply which would or would not give rise to liability, and I will now go through each of them in turn:

a) What if the allegedly naughty 9 year old boy had slammed the door? Is the boy liable?

The position is that he himself could be liable provided that he had done it maliciously or carelessly. If so, you could sue him. That is you would be able to sue the boy himself. Although he would not have assets of his own to pay with, the chances are that his parents under their household insurance policy would have cover for their own liability to other people but also for liability on the part of their children, or even their dog. Thus, that insurance policy would probably cover the claim if we got a court judgment against the boy himself.

So, looking at it just in terms of whether there is a duty, there clearly is a duty not to act in such a way as to negligently cause injury to other people that you might reasonably foresee could be injured by your actions. That duty applies to everybody all the time. It applies to children as well as to adults. Do not be confused by the fact that children below a certain age can't be prosecuted for crimes. They can in principle be sued for civil liability even if they are young. However, in practice there would be some obstacles to get over because we would need to show that that child was able to foresee the potential consequences of his actions.

b) Could we sue the boy's parents?

I would say that we could not sue the boy's parents in that situation because they are not themselves likely to be liable for what he did at the school. Assuming he did it at all he took the action himself without them being present. So, they themselves (as opposed to the boy himself) would not be liable. That could be different however if the accident had happened somewhere else such as at their home or when they were present with him and had for example failed to restrain or supervise him.

c) Is the school liable if the boy is naughty?

This is what the client initially wanted to go for. I said however that we would need to show that the school had knowledge that the boy was a menace for slamming doors and that despite that knowledge they had not done anything to prevent this. It is not enough just to show that it happened at the school and just assume that they should have done something to stop it. There is no strict liability here (which means that someone is liable even if they weren't negligent). So, they would only be liable if they had knowledge that this boy was a potential problem and failed to do enough about it. That knowledge can either be "actual" or "constructive"�.

Actual knowledge means that they actually knew about it, and you can show that they did know. Constructive knowledge means that they should have known because certain things had happened that a reasonable person would have found enough to make them aware that there is a problem. However, unless the client is able to come up with evidence that the school had knowledge that this boy was a menace in this way and that they had also failed to take adequate steps to restrain or supervise him, then the school would not be liable for what he did. Basically, we would have to ask a lot of questions and get a lot of information and evidence before we could sue the school for what that boy did.

d) What about the door closers? What if there had been no door closer at all?

Here the point I made was that we needed to establish whether there was even a specific duty to put a door closer in place at all. Unless you can do so, there would be no duty and therefore the absence of a door closer would not be something you can blame the school for. Thus you may not be able to establish liability simply by saying "there was no door closer"�. The point is you would need to show firstly that there is a duty to put door closers on external doors. Unless you can, then you are going to lose.

NB The school could be held to have a duty to install door closers on external doors if they are heavy ones but these particular doors weren't. (See HSE website for guidelines). If that accident occurred today it could be more possible to pursue it, as with growing awareness of this as an issue, more and more schools are fitting door closers. That in itself would help us to argue nowadays that the general knowledge of the risk is such that a reasonable school would fit door closers. That argument may succeed today, especially if the doors are of a heavier type.

e) What if there was a door closer but it didn't work, i.e. wasn't functioning at all?

Here again unless there was a duty to fit a door closer, (see (d) above), there would be no liability. If there's no duty to install one at all, how can you blame the school if the one it has fitted doesn't function at all? (But also see (f) below). However, if a school had fitted a door closer, it could be used to indicate that there must have been something about the door that made them believe a door closer was needed. That's a rather circular argument, but it may be that the very act of fitting a door closer will help to tip the balance and cause the court to conclude that one was needed. If so, then failure to maintain it, such that it stopped working, could then be a breach.

f) What if they had put a door closer on but it was "defective"�, and therefore dangerous e.g. the spring was too strong and instead of slowing the door's closure rate, it made the door shut more rapidly?

Even if it was held that there is no duty of any kind to put a door closer on, if a school or business nevertheless chooses to install one, then they must do it properly, i.e. they must not positively create a danger where there wasn't one before. Thus, if they had put one on that was too strong and it made the door close too rapidly because the spring was too powerful, such that it was the door closer itself that made the girl's fingers get injured, then the school would be liable. Do you see the difference? There may perhaps have been no duty to fit a door closer in the first place, but if they nonetheless do put one in, they need to make sure that it works properly and that it does not cause accidents. (Contrast this with (e) above where the door closer, though installed, did not work and did nothing at all, good or bad).

g) What if the door was in a "wind tunnel" so that the door was regularly slamming?

In such circumstances you might succeed in showing that there is a duty to install a door closer. If you could show that this exterior door was for example at the end of a corridor and a strong wind regularly blew down that corridor and blew the door open or blew it shut and that this was something that happened frequently and was thus foreseeable as a problem, then those circumstances would probably mean that the school was then under a duty to install a door closer.

What I mean is that in a case like this there is no clear cut automatic or general duty to have door closers, but if the circumstances are such that a sensible person really would put one in, i.e., to stop the door slamming as quickly as it does, then there probably would be a specific duty to put in a door closer. So, the absence of a door closer could, in those circumstances, then make them liable, i.e. in that particular school and on that particular door, but perhaps not necessarily in other schools or on other doors.

So, there were at least seven possible different scenarios, some of which resulted in liability and some of which did not. Having said that, this is just in theory. We still have to show that there was evidence to prove that those things were actually true. It is not enough just to allege it.

Example 3 on Breach - Bus Driver Case

In one phone call I considered some time ago, the caller was injured when a bus driver braked very sharply. The client just assumed that that must obviously be the bus driver's fault. But it need not be. It turned out that the bus driver braked (or says he did) because of the negligence of another unknown motorist and so they said the bus driver did the right thing by braking. Therefore, although the bus driver clearly owed the client a duty of care, he wasn't in breach in any way. He was right to brake. The other motorist was in breach but his identity was unknown so our claim would have to be to the Motor Insurers Bureau i.e. for untraced drivers. The point is, though, it would not be against the bus driver.

Example 4 on Duty - Horse Riding Lessons

In another case I looked at the client was an adult and was injured when going for a one to one riding lesson. She was basically a beginner. The riding school had a paddock and there were four pupils and four teachers all having lessons at once. One horse, with a boy on it, strayed over towards our client's horse and our client's horse reared up and threw her. Now, leaving to one side any other other special considerations of horse accidents, which are complex, let us address a key allegation that our client was making in that case. She argued that there were too many people being trained at one time, i.e. four in a paddock. But, who says that's too many? Who says there is a duty to limit the numbers of one to one lessons happening simultaneously? If so, what is the duty? How many should there be in that paddock? We could not prove any such duty or rule or even guideline exists. The client simply says that she believes that factor caused the accident, i.e. too many horses in that paddock. But, even if the client is right that fewer horses would have prevented the accident, that still gets us nowhere unless we can also show there is a duty/rule/guideline to keep horse numbers down to one or two or three in a paddock of that size instead of four. If not, we would have to find some other basis for blaming the riding school or we could not pursue such a claim.

Example 5 on Breach - Rural Footpath in the Dales

In another case which I have recently closed, a client was injured when hiking in the country on a little rural track that you would say was just a country lane, suitable for walkers or horses. Apparently, the road had been inappropriately classified as a highway for a brief period, such that cars were then legally allowed to go on it. This meant that 4 x 4 vehicles began to use it for recreational purposes i.e. driving along it at speed and they started churning up the path quite badly in certain places. Our client walked along and there was a clump of grass growing on this path which hid one of the dips in the path which we allege had been caused by 4 x 4 tyres. She then broke her leg badly by tripping over.

I looked at this case and I said that any District Judge looking at the photographs would say that even if this road had temporarily been a highway, such that you could then say that there was a duty to maintain it, the level of that duty was very low. Thus even though the track was bumpy and knobbly and uneven and covered in grass, there was no breach of duty because the level of duty in such an extremely rural place for what is effectively just a hiking path is very low. In other words you would expect it to be rough and therefore it is alright for it to be rough. What I mean is, there may be a duty to maintain it, but because it is so rural, it need not be maintained to a high standard.

Of course if there had been a deep chasm into which the client had fallen, that would be different, but it was not like that, it was just a poor quality rural track and it just so happened that the area in question had some grass growing around it which disguised the dip. In other words, the local authority was not in breach of its duty.

If the hole had been somewhere else such as on an urban pavement or a road or a shopping centre then of course we would have had a different outcome, but we had to have regard to where it actually took place and what was the level of the Council's duty in that location. By doing that we arrived at a correct answer as to whether there had been a breach.

I think in this case the client had been thrown off course by focusing too much on the fact that this little track was designated a highway (it no longer is) and also that she had a very badly broken leg. That mistake often happens. Many a client has made the error of thinking that just because there is a very clear duty or a very clear causation or a very severe loss or injury then that somehow makes up for one of the other ingredients such as breach, being missing. It does not make up for it, no matter how extreme the remaining ingredients are. Even if the client had been killed in that situation or rendered paralysed, there would still be no liability at all.

Variations on the theme of Duty/Breach: Is There Strict Liability or Not?

We will always have to ask ourselves whether, in your case, the duty is one of strict liability (i.e. where the Defendant can still be liable even if he wasn't negligent in any way). If there is no strict liability then you will have to fall back on proving negligence, or breach of a statutory duty etc. If so, then there will usually be just a duty to act reasonably. So if there isn't strict liability, you can't just say, "I got injured and that's all there is to it"�. You would also have to show that what the Defendant did or didn't do was not of a reasonable standard. That requires common sense and good judgement.

Examples of strict liability could be:- a) Defective work equipment (Regulation 5 - Provision and use of Work Equipment Regulations 1998)

This Regulation states that "Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair�". The word 'shall' makes it clear that this regulation imposes a "strict liability"�. In other words, liability does not depend upon being able to show that the employer was "at fault"�. A case which illustrates this is Stark -v- The Post Office, where it was no defence to a claim in respect of an accident caused by a defect in a postal worker's bicycle, that even a rigorous examination of the bicycle would not have revealed the defect. There was a defect in the bike and this was enough, even though the Post Office didn't know and couldn't have known, even if they had examined the bike really closely.

The point is that because the duty here is one of strict liability, then even where it would not have been possible for the employer to have known about or discovered the defect they would still be to blame. (Note of course that we will still have to prove that the equipment was defective. We can't just assume that, even in a strict liability case.) In other words, the Defendant would be strictly liable IF there is a defect, regardless of how it got there, but not liable at all if there was no defect.

b) Sale of Goods Act 1979 - Section 14

This section imposes upon a person who sells goods in the course of a business implied conditions that the goods should be of "suitable quality" and "reasonably fit for their purpose"�. The important point to realise here is that either the goods meet those standards or they do not. If they do not, then the seller is liable regardless of whether there was anything that the seller could have done to have prevented the breach of contract. Again, note that we will still need to prove that the goods were defective. If we can, then the seller is strictly liable for the injury caused by that defect, e.g. where shampoo has got acid or bleach in it which got in through no fault of the seller. We don't have to limit ourselves to suing the manufacturer. We can sue the shop as well. Having said that, we would probably still go for both.

c) Defective traffic route in a workplace (Regulation 12(1) of the Workplace (Health Safety and Welfare) Regulations 1992

This regulation provides that floors and traffic routes in a workplace "shall be of a construction such that [they are] suitable for the purpose for which they are used�". Again, the word "shall"� imposes an absolute obligation and strict liability. In other words, either the floor/traffic route is or is not "suitable"�. If it is not, then the employer is in breach of this regulation, regardless of how hard they may have tried to comply with the regulation. Again, remember that we will still need to prove the floor or route was not suitable. That point will not just be assumed.

C THIRD INGREDIENT - CAUSATION This is the third essential ingredient in a successful personal injury claim. What we mean here in simple terms is that the blameworthy thing that the Defendant did, or failed to do, has actually caused:

(a) the accident and;

(b) the accident has also actually caused the symptoms.

You could fail to prove causation in either of these respects. For example you could have something which is a breach, but which did not actually cause the accident. So there could be a situation where there was a duty, and a breach of that duty and then there is loss and injury, but the negligent action in question did not actually cause the accident; something else did.

The classic test for establishing whether or not the breach of duty caused the damage is to ask "would the damage complained of have occurred "but for" the negligence (or other wrong doing) of the Defendant?"

Classic cases of situations where there has been a failure to establish the essential ingredient of "causation";� include:-

Barnett -v- Chelsea and Kensington Hospital Management Committee (1969) where the hospital admitted negligence in failing to diagnose and treat arsenic poisoning, but there was no liability because of evidence that, even had the patient been treated promptly, he would still have died from the poison anyway. So, the hospital's negligence made no difference to the outcome. Thus their failure to spot the poisoning and treat it did not cause his death because the poison had already taken effect before he got to the hospital and he would have died anyway.

McWilliams -v- Sir William Arrol and Co (1962) A steel worker fell 70ft to his death. The Defendants were found to be in breach of statutory duty in failing to provide him with a safety harness. But the evidence established that the dead man would never wear a safety harness even if one were provided. His widow's claim for breach of statutory duty failed. She could not show that "but for"� the Defendant's doing wrong her husband's death would have been avoided. That case may be decided differently today, but it still helps to illustrate the general point.

Example 1 on Causation - light switch case

This is a complicated example, so I will try to insert some easier ones later, but it is worth discussing. In this case the client worked at a large chain of shops as an agency cleaner. He was meant to switch lights off when he finished work so as to save electricity. However, on one particular staircase there were two light switches. There was one switch he could find at the top of the stairs but he could not find the one at the bottom. Therefore he switched the light off at the top and walked down in total darkness. The switch at the bottom did exist, but was concealed behind boxes on some shelves. Thus he couldn't find it. He says he'd been told there was a switch somewhere at the bottom but nobody showed him where.

The client emphasised all sorts of things but he did not focus upon the key issue which I believe directly caused the accident i.e. his own decision to switch off the lights at the top of the stairs and walk down in total darkness, (which is how he came to fall). The client claimed that the cause of the accident was the shop manager's failure to point out the location of the downstairs light switch. In a sense that was a cause, but only an indirect cause. The direct and immediate cause was his own decision to switch the light off at the top and walk down in darkness. That was a wrong decision, for which he was to blame, not the employer.

Example 2 on Causation

Imagine, for example that a man is driving along in a car that has severely defective tyres, brakes, headlights, rusty bodywork and so forth such that he commits many construction and use offences and on top of that he has no driving licence and no insurance and is also on a drink driving ban. He then gets involved in an accident with you. He is therefore massively in breach of all sorts of rules and regulations. However, there is one major problem - imagine that in this particular accident, he was not actually to blame; it was you who did something wrong, or alternatively someone else did.

Thus, that driver may well be in breach of many laws/duties in all sorts of ways but those breaches did not cause the accident. In other words, even if he had had a driving licence or tax disc or good tyres what difference would it have made? Ironically, if you go out driving on a dry day with bald tyres, that can give you the best road holding; it will actually improve your grip on the road. Bald tyres are only a problem on wet days, but they are illegal anyway because we can't know whether it will be wet or dry so tyres must never be bald. So he commits a crime (whether it is wet or dry) but it does not make him civilly liable for this accident because the bald tyres did not actually have anything to do with causing the accident, despite being illegal.

Example 3 on Causation - Salmonella Poisoning

Imagine you went to a restaurant or function and 12 hours later got salmonella. You might put two and two together and say it must have been due to that restaurant. However, we will need to prove it. Maybe it was some other place or source that caused it. We will have to gather evidence, including circumstantial evidence to show that that restaurant is the likely source. That could mean talking to other customers to see if any of them got it too. If not, and it's just you (as far as you know) who got it, then the court will take some persuading that the restaurant is to blame unless you can get expert scientific evidence, which may not be feasible because it has to be done so quickly.

Alternatively, you could have a situation where the negligence or breach definitely caused the accident, but the accident didn't cause the symptoms, or didn't cause all of them. This comes up quite often in cases, especially for older people, whose bodies may be developing problems anyway, quite apart from the accident.

Example 4 on Causation - Acceleration of Symptoms

Looking at causation in the context of symptoms, imagine a situation where you had an accident on 1 January 2008 and now you have got a variety of symptoms and problems with your back. Yet, when we get your medical evidence it emerges that you had pre-existing back problems which would have worsened or arisen anyway, even if you had never had the accident. Perhaps the best that you are able to show is that you have had those symptoms brought on early because of the accident. So, whereas they were going to happen anyway, you have ended up having the symptoms 4 or 5 years earlier. In that case, you cannot claim compensation for all of your back problems into the future which perhaps prevent you ever going to work again. The most you can do is claim for the pain and suffering for 4 or 5 years, but not after that.

The reason is that the accident would no longer be the cause of those symptoms after 4 or 5 years because the doctor says that they would have arisen by then anyway, even if you had not had an accident. All you could claim for here is "acceleration"� i.e. the fact that the pain and suffering started earlier than they would have otherwise. So, instead of claiming for it for 30 years or more, it may perhaps be for only 4 or 5 years. That can have a major impact on the value of your claim and must not be overlooked.

It is also relevant here to mention acceleration of treatment. If the Defendant's negligence merely accelerates the need for you to undergo a hip replacement operation (i.e. it is established that an operation would have been needed in the future anyway regardless of the accident), then the Defendant can argue that there should be no compensation in respect of that operation, since you would have needed to undergo it even if the accident had not occurred. Of course, in this type of situation, it is necessary to check whether, by accelerating the need for the hip replacement operation, you might now need to have a second hip replacement during the remainder of your life which you would not have needed but for the acceleration. In those circumstances you would be entitled to compensation in respect of the second "extra" operation (but it won't be easy to prove).

NB What About "Egg Shell Thin Skulls?"

NB This "acceleration" scenario needs to be distinguished from that of a person who has a weakness such as an "egg shell thin skull"�. What I mean is that if a person happens to be frail in some way and when his head hits the pavement it causes a more major injury in him than in the average person because he happens to have a thin skull or something like that, then all of the symptoms are attributable to that accident because it was all caused by the accident. The Defendant has to take his victim as he finds him and if he happens to have a thin skull, which means that his injuries are more severe than you'd expect, then that's hard luck for the Defendant.

Do you see the difference between this scenario and the acceleration case where the client had a pre-existing weakness/tendency/progressive degeneration of the spine which meant the symptoms would all have happened 4 - 5 years later even if there had never been any accident? The man with the egg shell thin skull may well have gone happily on for decades without anyone knocking him over with a car.

So, when you are looking at your own case, even if you have shown a clear duty and a clear breach and a clear loss and injury then always ask yourself, "Yes, but did the various breaches that took place actually cause the accident, and did the accident actually cause all of the injuries and symptoms and financial losses or, did it just cause some of them or even none of them?"�

Example 5 on Causation - Santa Claus

Imagine a person is elderly and retired, but works two months a year as a professional Santa Claus from 1 November to 24 December each year in shops/parties etc but gets injured on 15 November and can't work. Let's say he was getting very good pay for it. So he loses pay from say 15 November to 24 December. He can't claim after that for loss of earnings because after that it's not the injury that is the cause of his loss of earnings. It's the fact that Christmas is over and he therefore wouldn't have been earning anyway.

Often it is not that your claim will completely fail, but rather that you will have to limit it and be realistic about the level of compensation and also about how many different ways that you can show liability. You may have to accept that although you can show that a certain breach caused the accident, certain losses were not caused by that breach.

Let me also give you another example of how say, a financial loss can arise but not be caused by the accident.

Example 6 on Causation - Malingering/Lazy Claimant

There was a case I had to look at some time ago where the Claimant had an accident and he was injured and he was off work for over a year. The medical evidence did not justify him being off work for a year. It justified him being off work for say a month or two at the most. So then you have to ask, why was this client off work for a year? The simple answer (in this case - by no means always) was that he got used to being off work and sitting at home watching daytime TV and lounging in bed and having an easy life. He grew to like it. So, he stayed off work for a very long time rather than going back to work or getting another job. The cause of his first two months loss of earnings was the accident. After that, it was probably his laziness and reluctance to look for work that caused the continuing loss. We had to be clear and direct with that client and tell him that he needed to go back to work and that he would not be able to claim his ongoing losses because they were really "self inflicted"�. I said that based on a doctor's medical report which was quite frank about him.

Example 7 on Causation - case where client tripped on dog on stairs weeks after the accident

Some years ago, a client of ours had injured her neck in a road accident and so had a stiff neck. Some weeks later she tripped on the stairs at home by not noticing the dog asleep on a step. So, she fell and injured herself far worse than she had in the road accident. Our client tried to argue that all the additional injuries should be considered as flowing from the original road accident because her neck was stiff and she felt that if she'd had a neck that wasn't stiff she would have noticed the dog and not tripped over it. This arguments was similar to that in a famous case involving a woman who had to wear a stiff collar after an accident and therefore fell on stairs due to not being able to properly use her bifocal spectacles.

But, although this line of argument is potentially valid, it's not easy to succeed. The facts need to be very clear and solid. However, in this case they weren't. It was by no means clear that she had only failed to see the dog because of her stiff neck. That was her own opinion and argument, but it was felt that a court would be unlikely to accept it. A Court would more likely (in that case) have said she fell due to her own carelessness (or her dog's). That would not always be true but in this case it seemed to be. So, we are ready to argue for additional indirect injuries and losses like that, but you and we have to be realistic and not get carried away by our own arguments.

These are just a few examples. I could go on all day giving you other examples but the main point is that you sometimes need to look at the facts of your own claim very assertively and be realistic with yourself

D. FOURTH INGREDIENT - LOSS This is the fourth major ingredient of a successful personal injury claim.

Having put a tick in the boxes for duty, breach and causation, we now have to show that there is a loss and we have to show what that loss is. Then, linking this to Section C above, on causation, we have already seen we need to show that the accident was caused by the breach of duty and the symptoms were caused by the accident, as opposed to something else in either case. (We will also need to show that it was a foreseeable loss ie not too remote - see below). But what I will address here is the need to show there really was a loss, i.e. to prove it really existed/arose and is not bogus, exaggerated, invalid, imaginary or otherwise not able to be claimed. In other words, the loss must be real and valid.

Moreover, if we are dealing with say a loss of earnings or other financial losses, we have to prove them. It is not enough just to claim them. We have to prove everything and we will need your help to do that. Example 1 on Loss - Exaggerated Loss of Earnings

One client long ago had a job where he said that he was on a very high income and he alleged that he was unable to go to work for some 6 - 8 weeks because of whiplash. (He worked from home). I forget what the man was earning but it was very high and therefore for him to have say 6 - 8 weeks off work from his computer business where he was self-employed doing programming, would have lost him tens of thousands of pounds. He asked us to claim for all of that. The man's injuries did not seem to justify him being unable to work at all for eight weeks, even from home, so it fell to me to address this.

I asked the file handler to go back to him and get proof from him that he had not been working at all during those eight weeks and had not generated any invoices or been on-line or on the phone all day. The client could not do so and then just instructed us to abandon that 8 week loss of earnings. He was right to do so, and we were right to raise this with him, because he cannot claim losses he never suffered and if we didn't raise it the Defendant would certainly do so. At least we did it much more gently and politely.

So, in addition to addressing whether the loss was caused by the accident, you also have to address whether the loss actually really happened at all or is it exaggerated or unsustainable.

Example 2 on Loss - Taxi Driver - Distinction between Revenue and Profit

Sometimes it works the other way round and we can justify claiming at a higher level than the client expects. Take, for example, a taxi driver. He may, for example, earn let's say £24,000 per annum in revenue from passengers but if he is off work for say 3 months he will not take in any fees so he would have lost say, £6,000 in revenue. Yet, if you imagine that as well as having a usual income or revenue of £24,000 a year in charges and tips, he has expenditure of say £12,000 a year in running and insuring and fuelling his taxi etc, then his loss of profit in those 3 months was only £3,000. His tax returns will show the profit that he made in the year as say, £12,000 but his loss here will not be just one quarter of that profit, i.e. £3,000. His loss is the £6,000 in revenue or income that he did not earn whilst his car was off the road. All the other expenses (except the petrol), would still carry on even if he was off the road e.g. car tax, insurance, rental cost of the car etc. So what we would claim for is the lost earnings or revenue, (minus the variable things like petrol), not just the lost profit.

Having said that, if this particular taxi driver instructs us and wants us to claim on the basis of expecting an increased annual income this year of £50,000, then he will not be able to do it unless he can bring forward for us credible evidence to show that this current year his earnings have gone through the roof and now are twice or more what they were last year. Clearly that can happen, but it will be necessary to prove it.

Similar considerations arise for all types of loss, no matter what they are. They must actually have happened. They must be due to the accident, and have been foreseeable and they must be able to be proved. It's our job to help you do all that, but those are the things we need to prove. Furthermore, the loss you are claiming for has to be legal. If not, it cannot be recovered from the Defendant.

Example 3 re Loss - Illegal Earnings - What if the client is a prostitute?

Imagine a client is a prostitute and gets injured in some way that stops her working. What about the claim for loss of earnings? She will have to waive them because the earnings were illegal. It would be contrary to the public interest/public policy for the Courts to help her to recover them. So, she'll just have to claim for her injuries themselves. We could argue that she's unable to do any work, even legal work and claim for that ie at a lower level, but not at the higher level of her usual earnings.

Example 4 on Loss - Commercial Litigation - client many years ago who asked my former firm to sue for a debt which was illegal

When I was a young assistant solicitor in another firm, I had to face a difficult test of diplomacy. A very large commercial client had been running a commercial litigation claim for quite a while. Then we were asked to take it over. I read the file with alarm and surprise, because his claim was clearly illegal.

The situation in brief was that this man was very wealthy. A former friend of his worked in the City as a stockbroker and had inside knowledge of what was happening in certain companies such that he knew ahead of time when certain shares were going to rise in value, e.g. because good news or discoveries etc were about to be announced. In those cases he would ring this client, Mr X, who would then invest very quickly in those shares and they would share the illegal profits equally, i.e. they would sell the shares again maybe a week or two later. The snag was that although it worked well for them in most cases, they got into a problem when some shares actually fell heavily instead of rising. So, our client lost tens of thousands of pounds overnight. He said that they'd agreed to share profits and losses equally. The Stockbroker was cagey in his Defence and statements, but basically said that only profits were to be shared. So, the client sued him.

The problem was that our client had been committing a crime, i.e. "insider dealing" and could have gone to prison for it. So, I had to go to tell him, that the claim was illegal and that he risked going to prison as soon as this became public, as it would if he continued to trial (because the Judge would see the point if nobody else did).

So, I got given the job of going to break this bad news to the client. He accepted it calmly.

The moral is that:

a) the Court won't enforce illegal contracts or debts or claims involving unlawful conduct so there's no point suing and

b) even if they would enforce them, you risk getting prosecuted and

c) we wouldn't be willing to pursue it anyway and

d) wouldn't be allowed to even if we were willing.

Therefore we can't pursue illegal claims or elements of claims. You need to recognise that.

A good case giving an example of the inability of a Claimant to recover losses resulting from his own unlawful conduct is the old case of Hewison -v- Meridian Shipping. In this case the Court refused to award to a merchant seaman his loss of earnings following a work related accident, on the basis that he had deliberately concealed from his employer his pre-existing and unrelated epilepsy. He could only have continued working for the employer by continuing to deliberately conceal that epilepsy. The Claimant could not rely on his own unlawful act i.e. obtaining the job in the first place by deception, in order to sue for losses when he got injured.

E. FIFTH INGREDIENT - FORESEEABILITY

You could call this an ingredient in itself, or you could say it is a part of the ingredients called "causation"� and "loss". Basically, we need to be able to show that the breach of duty was such that it was reasonably foreseeable that it might cause an accident and/or might result in a loss of that type/level/nature. We also need to prove it was not too “remote�, which means too far removed from the original act of negligence which caused the accident.

Example 1 on Foreseeability - Claimant with an Allergy

So, if there is a defective staircase you can easily foresee somebody falling down it, not necessarily you, but somebody. Thus an accident is a foreseeable consequence. But imagine the Defendant provided a works buffet and without him knowing it a member of his staff was or had become very allergic to say, lettuce or carrots and got ill. Then, even if there is a general duty of care, it was not foreseeable that anybody would be allergic to such things or would fall ill. (It could be different if there was knowledge of it - either actual or constructive and it could also be different if it was a something that more people are allergic to, especially nowadays when allergies are getting more common and thus more easily foreseeable.)

Example 2 on Foreseeability - Fall on Staircase - losses which are too remote

Turning back to the example of a defective staircase, if as a result of the fall a Claimant had time off work, then loss of earnings is easily a foreseeable loss. Moving outwards a little, if he also had to cancel his wedding but still pay the costs of it, those expenses would probably be recoverable. But, what if he then finds that because he has his wedding on a different day, six months later, he is then away from work on the day when his colleagues win the lottery, without him being involved? That "loss"� of a lottery win would be considered too remote as well as not foreseeable. That is it can not be expected to be foreseen by the Defendant who caused the accident. Also, for public policy reasons, if losses are too remote, i.e. too far removed from the original breach that caused the accident, our Court system doesn't want to award compensation. That is because otherwise overall damages could become too high for society to accept. It is a purely practical policy because otherwise there would be no end to civil litigation because if you were allowed to you could show that all sorts of things were indirectly caused by the accident. Therefore the Courts have limited this by drawing a line at a certain point.

CONCLUSIONS

Bringing all of this together, if you look at your own case, keep those five points in mind. Ask yourself is there a duty, is there a breach, is there Causation and is there loss? And, is the loss foreseeable/not too remote?

EVIDENCE

As I said, evidence is the sixth ingredient that you need and it affects the whole case. The five things above; duty, breach, causation, loss and foreseeability, are things that we need to be able to prove. Evidence is the means by which we prove them. Therefore, at all stages in the file we need to be addressing our minds to whether there is any adequate evidence to prove that there is a duty, breach, causation, loss and foreseeability. It is never enough just to allege these things. Indeed it is not enough even if you and we believe these things to be true. They can actually be true, but unless we can get evidence to prove that they are true then we may not be able to recover the loss.

The Burden of Proof in Civil Cases

The standard of proof needed in civil cases is "the balance of probabilities". This is quite different from criminal cases, where the prosecution has to prove guilt beyond all reasonable doubt. Thus, even if the man in a criminal trial is very probably guilty, he gets acquitted. In civil cases such as personal injury, we only need to show that your opponent is liable on the balance of probabilities. That means that even if it is only slightly more likely that you are right, even 50.1% to 49.9%, then your case wins completely.

Few things can be proved to the criminal standard of evidence i.e. beyond all reasonable doubt. To achieve that one would have to throw thousands of pounds at it, even if it was possible at all. But one can much more easily prove a thing on the balance of probabilities test by providing some direct witness evidence and supporting it with indirect circumstantial evidence in the form of statements, documents or other things that support what you and your witnesses say.

Therefore you and we need to be lateral thinking and diligent in looking for those kinds of evidence. We ask clients to bring in all sorts of things that might be relevant and might support them. This requires us to think ahead. For example, if you were saying that there is a tripping hazard on a pavement or near a shopping centre etc, then you need to anticipate that the other side are possibly going to say that that tripping hazard only arose very recently i.e. within a matter of days or weeks before the accident. So, it will help us greatly if at an early stage you can go back to the area and ask householders nearby or shopkeepers etc, how long that tripping hazard has been there. Evidence like that, gathered early on is very helpful.

If these questions are asked right at the beginning i.e. just after the accident, then local people's memories will be fresh and they will say for example, "Oh that's been there for over 12 months�". If a shopkeeper or householder is able to say that, then that is very strong supportive evidence that the Council have not noticed the defect or have not done anything about it for an excessively long period. So, the sooner such evidence is gathered the better, while memories are fresh.

Another point is photographs of the defect. Often these are sent to us by clients and are poor or unclear so that the tripping hazard or whatever it is, is hard to see clearly. It will really help your case if at an early stage you can get good digital photographs of the hole in the pavement or the raised paving slab or the defective machine etc. Take lots of photographs and from lots of angles and distances (some close up with a tape measure in the picture) so that you can capture the whole scene. That is needed with road accidents too. I ask clients to revisit the scene and take photographs from all angles so that we can carefully weigh up who did what and seek to prove the Defendant's liability.

I hope this general guide is helpful to you, but if you want us to clarify any part of it, of if some part of it is relevant to your case, our staff will be glad to advise you further. Also, don't be put off if I have said there was no case for a certain client. It may be that your case will be slightly different. Our job is to find a way forward if there is one, so call us and see what our staff can do.

Sean Kehoe, Senior Partner

Advance Legal

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