In the third of our series of blog posts explaining the steps we have guided our clients through in the claims process, we discuss how the facts need to establish that a wrongful harm has occurred.
The process of gathering evidence that we have outlined in our first two blog posts forms the first stage.
The second stage is proving that the facts show that a breach of duty owed to the claimant by the defendant has occurred and that this led to the claimant’s injuries.
The test to establish a breach of duty is whether a claimant was exposed to a foreseeable risk of injury that could have reasonably been avoided. The court will examine all the circumstances of the accident in order to evaluate whether the defendant should have taken reasonable steps to reduce these risks.
For example, in a road traffic accident, the court will examine whether the defendant driver failed to exercise the level of skill and care that can, and should, be expected of a competent driver.
In Mr Q’s case, the detailed reports that we commissioned established that the family member breached a duty of care they owed to Mr Q and that this had led to the injuries he sustained. The facts outlined that the defendant had been driving with old tyres that should have been replaced long before the accident; there were likely warning signs from the tyres that should have prompted the driver to slow down or stop; and the driver should have been able to retain control of the vehicle despite the tyre blow out. This demonstrated on the balance of probabilities that the failure to address the foreseeable risk that the old tyres posed was a breach of duty that caused the accident and the claimant’s injuries.
Ms I, who suffered spinal cord injuries when she lost control of the quad bike she was riding, established breach of duty through extensive witness statements gathered from Iceland, Denmark, France and Italy. These supported the detailed evidence reports from quad biking safety experts that reported that the tyres were in bad condition and found that she had not received an appropriate level of instruction on how to operate the bike in the event of an emergency. The factors had led to the accident and the injuries of Ms I.
Although a court may find that the defendant was primarily responsible for an accident and injuries suffered by the claimant, it may also find that the claimant was also partly to blame. In such circumstances, the amount of compensation the clamant receives is reduced by a certain percentage to reflect the claimant’s own contribution to the accident or his injuries.
In the case of Mr N, he sustained severe injuries as a result of a road traffic accident. Proving that these injuries were not a result of Mr N failing to wear a seatbelt was a difficult hurdle to overcome without accident reconstruction evidence.
If it had been established that by not wearing a seatbelt, he had contributed to the severity of his injuries, his damages could have been reduced by 15 – 25%. The accident reconstruction evidence in Mr N’s claim established that the failure to wear a seatbelt was not causative of the type of injuries Mr N sustained. The damage to the vehicle was so severe; wearing a seatbelt would not have made any difference to the nature of his injuries. Therefore 100% liability was conceded.
Establishing the chain of events and building up an evidential picture is critical to establish whether a breach of duty occurred and whether this led to the type of injuries someone sustained. These two conditions need to be met in every claim for compensation.
Read more about our work with SIA here.
More information about our Personal Injury department at Stewarts Law, jointly headed by Paul Paxton and Daniel Herman, can be found here.