DEFENDING A PERSONAL INJURY CLAIM

Personal injury compensation claims are often brought in areas that include sexual abuse, motor vehicle accidents, and worker’s compensation.

The plaintiff in such actions bears the burden of proof in demonstrating the elements of negligence, namely that a duty of care was owed, that this duty was breached, and that this breach resulted in injury.

It is only once these factors are established that the defendant then bears burden of proving a defence to deny liability.

Personal Injury Defences

The defences available include actions brought past time limits, assumption of risk, contributary negligence, obvious risk and existing injury.

The “limitation period” is 3 years dating from when injury was suffered or the person became aware of it. If a claim is made after the 3 years, and there is no reasonable excuse for the delay, the claim must fail. There are execptions for injuries arising from sexual abuse however.

The legal doctrine of voluntary assumption of risk, often applied to injuries occuring due to sport, applies where the plaintiff is said to have assumed the risk of injury either by behaving in a particular way or due to the nature of the activity.

Under the legal doctrine of “contributory negligence”, both parties are deemed responsible for the injury as the plaintiff is said to have contributed to the injury by failing to take reasonable care for their own safety. This can reduce the amount of damages awarded.

Liability can be avoided for “obvious risks”. An obvious risk is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. A defendant does not have duty to warn a person of an obvious risk.

Where the plaintiff’s injuries existed before the incident in question, liability can be avoided. The incident could, however, have aggravated an existing injury. Expert evidence can be provided by a range of parties, depending on the claim. This can lead to parts of a claim being dismissed or a reduction in classification of the degree of injury claimed and the amount of damages sought.