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Personal Injury Claims: Key Differences Between The English And US Legal Systems
From Mooneerams offices in beautiful South Wales, UK, our expert personal injury solicitors take countless telephone calls from individuals injured in an accident that wasn?t their fault and are keen to understand their rights. Most callers are from Cardiff, Wales or London, England. Once we have established their claim has merit, and assuming receive instructions to act, we pursue it on their behalf, in most cases using a No Win No Fee arrangement, and ultimately obtain the compensation our clients deserve from the negligent party?s insurers.
However, we increasingly receive calls from individuals outside the UK, particularly from the US, who have stumbled upon our site when searching Google for personal injury specialists. Whilst we love helping anyone who has suffered injury due to another person?s negligence, sometimes, we simply can?t.
As US personal injury attorneys know, if a US citizen has an accident in the US caused by a US-based defendant, our solicitors can?t assist them (other than by recommending them to an American Attorney!). Personal injury laws in the UK and the US are significantly different, as are the relevant procedures and Court systems.
So, how does personal injury litigation differ between England and the USA?
Below, we discuss some of the more notable differences between the two jurisdictions and explain how they can impact the outcome of a case. (As an aside, England and Wales share a legal system, so when we refer to England, the same principles apply to Wales.)
The Law
The law of negligence is the bedrock of personal injury litigation in the US and England. English law, along with that of each US state, recognises that certain individuals owe a ?duty of care? to others and can be liable for negligence if they breach that duty by failing to act with the level of care expected of a reasonable person operating under the same circumstances as the defendant. However, the nuances of negligence law and how it is interpreted can differ.
Take, for example, the principles of contributory and comparative negligence. In England, if the victim of negligence contributed to the accident, they can still succeed in a negligence claim, but the damages awarded will be reduced to reflect the extent of their negligence. English legal practitioners refer to this as ?contributory negligence?.
US law recognises the principles of contributory negligence, comparative negligence and modified comparative negligence. Some states, including California and New York, apply a similar rule to that followed in England and reduce the damages awarded according to the extent of the victim?s perceived fault. The principle is known as ?comparative negligence?.
Other states like Illinois operate a ?modified comparative negligence? rule. Under this rule, if a victim is apportioned less than 50% of the blame, damages are assessed in accordance with the percentage for which they are deemed responsible. If the victim is apportioned over 50% of responsibility, they receive nothing.
The rule known in the US as ?contributory negligence? is applied only in Washington DC, Maryland, Alabama, North Carolina and Virginia. Under this rule, if a victim is adjudged to have played any part in the negligence, their claim is barred; it is, in essence, an all-or-nothing approach. Contributory negligence does not apply where the defendant is in violation of a statute or where strict liability applies, nor is it a defence to a claim based on the defendant?s ?wanton conduct? or ?gross negligence?.
Pre-Action Protocols
Negligence cases in England are subject to strict pre-action protocols designed to encourage the parties to share all relevant evidence before proceedings are issued, with a view to facilitating an early settlement. If a party refuses to follow the pre-action protocol procedure, the Court can penalise them.
In the US, on the other hand, no formal pre-action protocol applies to negligence proceedings. Whilst the parties may choose to enter into informal pre-action correspondence and exchange evidence, most of the details relating to the case often do not become known by a defendant until sometime after the complaint has been filed.
Procedure
Some of the starkest differences between personal injury litigation in England and the US arise in the context of procedure.
For example, an essential aspect of US proceedings is the deposition process, which allows the parties to take testimony under oath from the other side?s witnesses before trial. The parties and their legal representatives are afforded a ?sneak preview? of the witness?s demeanour. They are better prepared for what the witness will likely say at trial and can tailor their preparation accordingly.
Neither the deposition process nor any equivalent exists in English law. Whilst the parties must exchange witness statements before trial, there is no opportunity to cross-examine the witnesses until they are in the box.
Judge Or Jury?
A notable difference between negligence cases in the US and England is how a case is decided. In England, civil trials, other than those for defamation, are presided over by a single Judge. In the US, personal injury litigation trials are heard by either a judge or a jury.
This difference between a trial being decided by a judge or jury can significantly impact the outcome of a case. Judges are experts in the relevant field, often having practised it for many years before being appointed. As a result, their decisions are usually well-reasoned, easier to predict and somewhat less emotive than those reached by juries.
Common to both jurisdictions is that only small percentage of all personal injury claims filed each year, end in a court trial, most cases having been settled by the parties beforehand.
Level Of Damages
A further significant difference between personal injury litigation in England and the US is the level of damages a successful party can expect to recover. Compensation can vary substantially between the two nations. Overall, damages awards in the US are higher than those made by the English Courts.
In both England and the US, personal injury compensation is intended to put the injured party back in the position they would have been in had the accident not occurred. To do so, the Court will award two types of damages ? ?special? and ?general?. Special damages compensate for actual financial losses, such as loss of earnings and medical expenses. General damages compensate for pain, suffering and loss of amenity.
In the US, however, a third category of damages can be awarded: punitive damages. Punitive damages are intended to punish a defendant who has caused intentional harm or exhibited a reckless disregard for safety and can significantly increase a damages award. The concept of punitive damages is not recognised under English law.
Many US states have imposed caps on specific types of damages awarded in negligence cases. In Alabama, for example, punitive damages are limited to three times the compensatory damages award.
Whilst Judges in England can refer to guidelines indicating the level of general damages considered appropriate for specific injuries, there is no cap on damages; Judges can exercise their discretion as they see fit.
Legal Fees
In England, the general rule is that costs follow the event, meaning that the unsuccessful party must pay the successful party?s legal fees. By contrast, the default position in the US is the aptly named ?American Rule? under which each party bears its own legal costs, regardless of the outcome.
Conclusion
Whilst English and US negligence law shares many common principles, there are marked differences in how personal injury litigation operates across the two jurisdictions, most notably in terms of procedure and damages awards.
However, whichever jurisdiction applies, the key to success for the innocent victim of another person?s negligence is ensuring they get the right lawyer, a niche personal injury solicitor or attorney, as the case may be.
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