What Defences Could Be Used Against Your Personal Injury Claim
If the accident that caused your injury is caused by someone else, it is fair that that person or business be legally responsible for the losses you incurred because of the injury. However, the law also allows at-fault individuals to avoid liability – partly or entirely – when certain defences are available to them.
Here are the most common personal injury defences that insurances companies and at-fault individuals will try to employ to lessen or avoid liability for an accident or injury.
You were aware of the danger
Under the legal doctrine called the “assumption of risk”, you are said to have assumed the risk of a particular activity because of certain behaviour or the activity’s nature.
If this assumption of risk defence is applied, you cannot recover any compensation for the damages - even if the other party is at fault. Typically, this legal doctrine applies to those engaged in sporting activities. For example, if you broke your leg because of a skiing accident, you would likely have no recourse against the ski resort operator considering that it is a risky activity and injuries are expected.
So, when the activity is considered dangerous, and the defendant has not done anything to make it more dangerous than normal, you cannot recover any damages.
It’s also your fault
In some states, if you are partly to blame for your injuries, the other party may give a defence known as “contributory negligence”. Under this doctrine, your own share of the blame does not relieve the defendant entirely of the liability. Rather, your own negligence will reduce the amount of damages that they will subsequently cover. If there’s a trial, the Judge will assign percentage of fault to each person’s actions, and your damage award will then be reduced by that percentage.
Bear in mind there are some states that recognise the defence of “contributory negligence" as a complete defence, which means that if there is proven negligence on your part, even if minor, you may be barred from any damages claim.
You were already hurt
Another commonly used defence to minimise the amount of damage that you can recover is to allege and prove that your injury is not actually a result of the accident. This is usually done by proving that your injury existed before the accident. Such pre-existing conditions are used to limit the other party’s liability to you.
In order to prove that your injures are in fact pre-existing, defendants will rely on medical records and testimonies from medical providers. It is for this reason that defence lawyers and insurance companies ask for medical records regarding the injured person spanning back several years before an accident. The defendant’s representatives will thoroughly sort through these records and look for evidence that you previously sought treatment for the same injury.
Establishing that you have had a pre-existing injury does not mean that the other party is not required to compensate you in aggravating your injury. For example, you may be able to provide medical evidence that after the accident you were required to have additional treatment.
Contractual defences – limitations on liability and release
The defendant in your personal injury case may also seek to limit their liability by presenting evidence that you contracted away the right to sue them for the accident.
Unfortunately, in most cases you are not aware that you are signing away this right because the liability release may be hidden in the contract’s terms. For example, there are many equipment rental contracts, such as ski equipment rental hire, that contain a clause stating that renters acknowledge that the equipment is being rented “as is”. This means that the shop will not be held liable if the equipment is defective. In many states, these types of releases are held valid. However, you can still void these clauses under certain circumstances.
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