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PRELIMINARY POINTS – (I) THE BURDEN OF PROOF

252. When you bring a claim, you have to demonstrate that the person you are suing was responsible for the accident, and was responsible for your injuries and financial losses. Put into legal jargon, you have the ‘burden of proof ’. 253. In some situations, that ‘burden’ switches to the defendant. So, for example,

if the defendant alleges that you were in part to blame for an accident, or (as explained below) that your conduct at some time after the accident caused some of your losses, it has the burden of proving those allegations. 254. In many cases, these issues are straightforward, and you will not have to

think about them. However, it is always worth remembering in general terms who has to prove what.

PRELIMINARY POINTS – (II) THE STANDARD OF PROOF

255. Where a party has the ‘burden’ of proving something in a claim, such as the defendant’s driving, or an employer’s failure to provide equipment, caused the accident, he only has to prove that ‘it was more likely than not’ to be the case. Lawyers refer to it as proving something on ‘a balance of probability’. Some people think of the test in very simple terms as proving something was 51% likely to happen (ie just over the 50% balance).

256. You can see that it is a much lower level of ‘proof ’ than is required in a criminal case, where the prosecution has to prove its case against a criminal defendant ‘beyond a reasonable doubt’.

CAUSATION – WHAT CAUSED THAT TO HAPPEN?

257. As I discussed in section 2, you are entitled to recover damages for the injuries and losses which were caused by the accident you suffered. That sounds very simple, and in the vast majority of cases, it is simple. So, in a typical minor road accident claim, when one person (the defendant) drives his car into the rear of a car in front of him, injuring the driver (the claimant) the losses may be:

(a) Neck pain for 4 weeks; (b) Modest vehicle damage; (c) A few days off work;

(d) Three sessions of physiotherapy; (e) Travel/parking costs for physiotherapy.

258. It ought to be quick and straightforward to ‘prove’ that it was ‘more likely than not’ that the defendant ‘caused’ the accident, the injury, and the financial losses.

259. Of course, many cases concern more complicated events, both relating to the accident and to the losses. Take, for example, a situation in which a man is unable to return to work for six months because of his injuries. He claims six months earnings loss, which on the face of it seems a very easy claim to prove. But what if he was likely to be sacked or made redundant anyway (for reasons unrelated to the accident), or if his employer went into liquidation during that period?

260. If he was not going to be able to earn his wages for some of that period regardless of the accident, then the accident did not cause that loss. 261. Given that you need to ‘prove’ that it is ‘more likely than not’ that each

of the losses you are claiming was ‘caused’ by the defendant, it is always important to keep your eye on ‘cause and effect’. Lawyers have another way of asking the same question about each of elements of a claim: “what, but for (meaning ‘in the absence of ’) the accident, was likely to have happened in the future?”

262. As you can see, because the claims (e.g. lost earnings) concern events (going to work and being paid) which would have happened after the date of the accident if the accident had not happened, there is very often scope to argue that the future may have been different (sacking, liquidation, etc).

263. Lawyers and their clients in injury claims have to focus upon proving, ‘on a balance of probability’, what the future would have been if the injury had not happened, and what the future now holds (given the impact of the

264. At every stage of the claim, from establishing fault for your accident, to proving the losses which you have suffered, your lawyers, and you, will keep coming back to the issue of causation. In fact, lawyers have another phrase which reflects what they are trying to achieve: ‘the chain of causation’. This really does mean a ‘chain’ - with the ‘accident’ at one end, and the losses caused by the accident all connected together.

265. You might like to think of a ‘chain’ for each element of your claim, so that you can keep thinking of how to establish the ‘links’ between the accident and the losses which are said to have resulted.

266. In what follows, I am only intending to provide some examples of the issues you may encounter because each person’s circumstances and claims are unique. You will see that the chain of causation can be broken, and that even if it is not broken, there are circumstances in which claims can still be reduced.

EXAMPLES OF CAUSATION - (I) LIABILITY

267. In one old case, a man was sent home by an A&E doctor who had failed to diagnose that he was suffering from arsenic poisoning. The man died and his widow sued the hospital. The hospital admitted that the doctor was negligent for failing to diagnose arsenic poisoning, but successfully argued that his negligence had caused no loss. By the time he saw the doctor, it was too late to administer the antidote for the poisoning so that the man would have died anyway.

268. Using the chain of causation analogy, the fact that he could not be cured anyway, broke the chain between the negligent diagnosis and the losses suffered by his widow. She would have suffered those same losses even if the correct diagnosis had been made and the best possible treatment given to her husband. In a nutshell, the negligence did not cause any loss.

EXAMPLES OF CAUSATION - (II) BREAKING THE CHAIN OF CAUSATION

269. In relation to valuation, there are many examples of claims which are cut short by a completely unrelated event. In one case, a Mr McKew (who had been caused a knee injury by the admitted negligence of the defendant) visited a property with his family. He knew that as a result of his earlier

accident his knee was likely to give way suddenly and without warning. Nevertheless, when he left the property, Mr McKew chose to use a very steep stairway, which did not have a handrail, and to walk close to his child instead of other adult family members (who might have been able to help him if his leg gave way). His leg did give way and he suffered serious injuries. In that case the Court decided that Mr McKew’s conduct was so unreasonable that it broke the chain of causation. That meant that he could not recover the losses caused by his fall from the person who had originally injured his knee.

EXAMPLES OF CAUSATION - (III) CONTRIBUTORY FAULT

270. As you have just seen, the law sometimes judges that a person’s actions are so unreasonable that they break the chain of causation. That is not the only outcome where an injured person has suffered a second accident or injury in his day to day life. In a recent case, a Mr Spencer suffered an amputation as a result of a negligently caused injury. As a result, he wore a prosthetic leg, and had walking sticks to help him. Mr Spencer was able to drive an automatic car when his leg was not attached, and usually placed it on the rear seat behind him. One day, at a petrol station, he left his car without his leg or his sticks. He filled his car, then hopped back towards the driver’s door to hoot for the attendant to come and take his payment. Unfortunately, as he returned, Mr Spencer tripped on an uneven manhole cover, fell and suffered further injuries which confined him permanently to a wheelchair.

271. The Court decided that Mr Spencer’s actions, unlike those of Mr McKew, were not so unreasonable as to break the chain of causation, linking his original injury (and amputation) to his fall. However, it decided that he had not acted with reasonable care, so that he bore some contributory fault (assessed at one third or 33%) for the additional injuries.

PART FOUR