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.
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