Accidents do happen, and no-one can claim
where nobody is at fault, even when the injuries are severe.
In some cases, however, the injury will be a result of someone else’s negligence. An
is best placed to advise you as to whether you can make a claim for your injury and we would suggest that you discuss your situation in detail with them. In some cases, your actions may have contributed to your injury – this is particularly common in road traffic cases where each driver may be partly responsibile for the collision. In such cases, you may still be able to claim compensation, but your compensation may be reduced.
We believe that where you have been injured due to the fault of another, you deserve to be properly compensated. Under no circumstances, however, will we support fraudulent or spurious claims.
This short guide aims to help people understand the difference between an accident and negligence, and to offer general
on how to identify the former and avoid the latter.
This is not an exhaustive interpretation of the current law, but
an attempt to correct some common misconceptions about
how the law applies when a person has been injured by
In today’s society, many people think that it is possible to
sue for compensation whenever an injury occurs, that windfall damages are dished out automatically by the courts, and
reputations ruined for no good reason. This is not the case.
Litigation can be a difficult and stressful process for all
concerned and injured people often express the view that all
they want to do is wind the clock back to the time before the
injury and to put their lives back on track.
The Association of Personal Injury Lawyers believes that the
best way to avoid litigation is to avoid the negligence which
can lead to lives being ruined.
WHAT IS AN ACCIDENT?
An accident is simply an incident which no-one could have reasonably foreseen and for which no-one should be held
responsible. No-one will win a case against someone who they may
think is responsible for an injury, if that injury has been caused by an
WHAT IS NEGLIGENCE?
The concept of negligence is not new. It goes back to the 1930s, when it
was first defined in the courts in the case of Donoghue versus Stevenson
in the House of Lords. This case has been used to identify negligence
During this case, one of the law lords, Lord Atkin, explained that the law
governing complaints and their remedies is limited. He explained that
you “must take care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour”.
This then leads to the obvious question: who is my neighbour? Lord
Atkin’s view was that your neighbours are people so closely and directly
affected by what you do or don’t do, that you should bear the impact of
your actions on them in mind.
It means everyone you are likely to come into contact with, as a car
driver, as an employer, as an occupier of land and buildings which
people visit – pretty much everyone, in fact.
In short, what defines
is whether you do something which
you can reasonably foresee will injure someone else who is likely to be
affected by your actions, or your lack of action.
Everyone makes risk assessments every day, such as when
crossing a road. In circumstances in which your actions could involve
risk to your ‘neighbour’, however, the law requires a more careful risk
assessment to be made. This does not always have to involve written
records, but whatever risk assessment you undertake, your assessment,
and what you then do afterwards, must be considered ‘reasonable’.
The following are examples of what might be taken into consideration in
three different hypothetical situations.
Often a risk assessment is simply a matter of common sense. If, for
example, you are driving a small group of people in a minibus, you
should consider what could go wrong. This may include running out
of petrol, mechanical breakdown, or involvement in a traffic crash.
should then consider who might be affected if something goes wrong,
and how badly. You then need to consider the likelihood of these risks
The next step is to examine what precautions are already in place and
what more you may reasonably have to do to control the risks. This may
include checking you have enough petrol for the journey, that the
minibus has been regularly and properly serviced and that all the
passengers are wearing seatbelts. This process would be automatic for
most people. There is no need to fill in forms or produce risk assessment
documents in such circumstances.
Scout leaders, leading groups of young people on a hill walk, would
need to conduct a more systematic, written risk assessment, both to
ensure all the risks have been considered and that a rescue can take
place if necessary. Not only would they be expected to consider issues
such as weather conditions and the suitability of the terrain for the age,
experience and capabilities of the group, but they should prepare a
practical assessment of the details of the excursion, such as the type of
clothing the scouts need to wear; details of the route; the type of
communications required; places on the hill where the excursion could
be aborted for safety reasons; expected time of return, and so on.
Someone engaging in such an expedition should also hold the relevant
qualifications, eg the appropriate mountain leader certificate. A leader
of an excursion like this would be negligent if he or she attempted to
lead a party without undertaking proper training, which would include
essential safety precautions.
Again, the risk assessment involved in this example represents, to an
extent, the application of practical common sense, although no-one can
know all about safety in this scenario without training and guidance.
This enables the scouts to undertake the activity as safely as possible
under the circumstances, and is a measure which any reasonable parent
would expect when entrusting a child to the care of another person.
Someone who is responsible for the safety of hundreds of people in a
nuclear facility would need to conduct a very different type of risk
assessment, although the principles remain exactly the same. There will
be a greater number of different risks to consider, some of them highly
complex to understand and manage. This means that more substantial
written risk assessments and procedures are required.
In any circumstances involving risk, it is important to remember that the
key test is that you assess and act in a reasonable manner. The greater
the risk of injury, especially serious injury, the more the law expects you
to plan and guard against danger.
HOW IS REASONABLE DEFINED?
‘Reasonable’ is whatever a person put in your position would
consider to be reasonable in the circumstances.
If, in the context of
the scouting expedition, there is an incident and someone is injured, you are
unlikely to be considered negligent if a right-thinking person considers that
your risk assessment and precautionary measures were reasonable, and had
been adhered to.
There are refinements: for example, the ‘reasonable’ standard is higher if you
are dealing with children, where the test of your actions is to compare them
with what a sensible parent would consider ‘reasonable’. Similarly, if you
have a special skill, such as mountain climbing, the test would be to compare
your actions with another climbing instructor with the same qualifications
It is everyone’s responsibility, both legally and morally, not to injure
people needlessly. Every day, we undertake risk assessments almost
subconsciously and most of these assessments are simply a matter of
Embracing the need for more systematic risk assessments in certain situations does
not have to be particularly difficult or complicated.
Risk assessments are not designed to prevent you from undertaking
activities – they are designed to enable and help you to undertake them without
causing needless injuries to yourself and others.
SOURCES OF GUIDANCE
This leaflet is designed as a tool to help you
understand the difference between an accident
and negligence. The law in this area can, however,
be very complex, and you are always advised to seek
legal advice from a qualified lawyer who knows how the
law applies to your particular circumstances.
There is also a wealth of information and guidance
available about how to conduct risk assessments in
specific fields and industries. The Health and Safety
Executive (HSE) in particular, has a wealth of accessible
information in the form of on-line information, helplines,
books and films. For more information, see the HSE
This guide has been designed by the Association of
Personal Injury Lawyers (APIL) which was established in
1990 to protect the rights of people injured through
negligence. Members abide by a
code of conduct
and have access to a specialised
consumers to find lawyers with appropriate experience