Every year, in varying degrees of severity, it is an unfortunate reality that British citizens travel to Europe for holiday or work and have the bad luck to have an accident, whilst abroad, which causes an injury. In many cases the impact of the injury can be long lasting, often requiring lengthy hospitalisation and preventing the individual from working. The worst case is when a person is unable to resume their normal life and may need others to care for them. In the vast majority of incidents, the injured party bears no responsibility for their own accident. It is therefore only reasonable for a person who is injured through no fault of their own should be adequately compensated for the accident.
Liability for an accident is sometimes considerably more complicated than it first appears to be, what seems to be a straightforward matter can sometimes turn into a convoluted muddle of blame, negligence and vicarious liability.
Piero Mastrosimone, head of personal injury and insurance commented "it is expected that both individuals and organisations must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure another person" he further commented, "the concept of "reasonable" is judged on the basis that you are unlikely to be considered unreasonable if your risk assessment in any given situation if a right-thinking person considers that your risk assessment and precautionary measures were reasonable, and had been adhered to. There are certain adjustments, for example, when dealing or assuming responsibility for young children the standard would be higher. Also, when specialist expertise is involved - training sea cadets or leading a mountaineering expedition- in the event of an accident the leader's skills and actions would be weighed against an instructor with similar qualifications. "
In the law covering the UK and Europe there are two broad concepts of law, common law and civil law historically deriving from England where common law arose from and code law from Corpus Juris Civilis of Roman law. Common law is, predictably, mostly seen in the countries of the former British Empire whereas Civil law prevails throughout Europe. The law of tort (a civil wrong as opposed to a criminal wrong) is enshrined in both systems. Negligence and liability have three main principles:
- there was a duty of care owed;
- the duty was breached;
- and a loss was caused to the injured party as a result of the breach.
This is known as the "but for" test meaning – but for the other party's conduct the accident would not have happened.
A further consideration is whether the victim themselves contributed to their own accident, for example, insurers will often attempt to introduce a factor such as reckless behaviour or consumption of alcohol in the event of a fall. In one particular case a lady had a bad fall whilst on the terrace of a hotel, during the course of her holiday. The hotel went to considerable lengths to suggest and attempt to prove, with bogus evidence, that the lady had consumed too much alcohol and was wearing very high heels. The victim was able to prove that she did not drink ever drink alcohol and could produce a photograph taken just prior to the accident which showed her wearing flat sandals. Personal injury claims are also particularly prone to tactics from the opposing side such as procrastination, closing down the opportunity for a considered reply to a challenge. This makes it imperative to instruct an experienced personal injury lawyer at the earliest opportunity, to assess your individual circumstances and the likelihood of bringing a successful claim.
In addition to assessing where the liability lies there is the question of the time limitations within which you can bring a claim for compensation. Time limitations are governed by the country in which you had your accident and cannot be overridden, which is another compelling reason to instruct an expert personal injury lawyer as soon as possible.
The final factor to be considered is the shrinking Brexit deadline, The automatic right all EU Member States are entitled to, bringing proceedings against an EU-based defendant in matters of personal injury will fall away once the transition period ends on 31 December 2020, after which the whole process, including enforcement of judgments for the courts of England and Wales, will take once the automatic recognition and enforcement under EU law is lost. Any matters commenced before the end of the transmission period will still be heard under the EU law we currently enjoy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.