Imagine returning a library book 50 years late.
Paisley Central Library received a letter enclosing the borrowed book and payment of £20 as a contribution towards the fine.
The letter was anonymous but the honesty of the person was impressive.
They could simply not have bothered to return it. No one would have known. The borrowing records of Paisley Library did not go back that far, so the facts could have remained hidden forever.
With personal injury claims, it’s easy for crucial facts to remain ‘hidden’.
It’s not about what happened to you; it’s about what you can prove happened to you.
As the injured person, the legal onus is generally on you to prove what happened.
It’s not on the other side to prove what did not happen.
With a few exceptions, in most cases of personal injury claims, the law is reasonably clear and straightforward. In most cases, what is in dispute is facts surrounding the accident. For example –
- In a road traffic accident scenario, which of 2 vehicles in a head-on collision was over the centre line of the road at the point of impact?
- In a pavement tripping case, how long has the “dangerous” hole in the pavement been present before injured person’s trip and fall? Was that long enough for local authority’s system of inspection to have detected it and repaired it before it had the chance to cause the accident in question?
- In a moving and handling accident at work, did the object being lifted at the time weigh 5kg or 25 kg?
When you claim for personal injury compensation, your solicitor has to prepare your case on the assumption that it may have to be proved in court.
In fact, only a tiny proportion of cases end up in a final court hearing with witnesses. But your solicitor has to plan for the worst (a court hearing) while always hoping for the best (a fair, agreed settlement).
In this article, we will consider a case study featuring a road traffic accident.
We’ll show how a bit of “self-help” by the injured person can make a massive difference to the prospects of the claim succeeding.
Just about every centre of population in the country has a street which is only wide enough for traffic pass smoothly in both directions if there are no parked vehicles.
But as soon as you’ve got parked vehicles – typically down one side of the street only – you find yourself progressing in fits and starts. You have to weave in and out of clumps of parked vehicles, all the while hoping that oncoming drivers will forgive you if you misjudge the amount of space and time you need for your manoeuvre. In Moray, think of roads such as New Elgin Road or, in Lossiemouth, Stotfield Road, west of the golf clubhouse.
This case study involves an accident on a “parked cars” road of the type described above.
The injured person was driving down the side of the road which did not have the part vehicles on it. In the narrowed road, you could say, she had priority over oncoming traffic.
In any event, it was arguable that, even with the parked cars, the remaining road width was sufficient for two cars to pass in opposite directions, with care.
One oncoming car passed her just as she was getting to the point in the road with the parked cars on the other side. As she drove on, however – keeping as close in to the nearside of the road as she could reasonably go – the next oncoming vehicle hit her head-on, offside front to offside front.
Nothing much was said by the parties in the immediate aftermath of the accident.
They exchanged insurance details. The injured person’s car suffered significant damage to the front offside and it was not driveable. The police attended but considered that matters could be sufficiently sorted out through each side’s insurance.
It was only in the following days that the injured person began to worry whether the accident might have been wholly – or at least partly – their fault.
The other driver had had a passenger in the front seat. There were a couple of potential witnesses who had been standing outside a nearby pub on the nearside pavement but the injured person didn’t have their details. It’s possible that there could have been other witnesses on the opposite (offside) pavement but they were obscured from the injured person’s view by the parked cars on that side of the road.
Her concern was that it would only be her word against the word of the other driver and their passenger. This is not an ideal position to be in from the point of view of making a personal injury compensation claim.
What could the injured person do to prove what happened rather than simply saying what happened?
The accident happened on a main street with shops down both sides.
The injured person went round those businesses within a few days of the accident and was able to identify one which had footage of the accident recorded on CCTV camera.
This business was more or less opposite the accident locus.
Although the camera’s view was partially obscured by the parked cars on its side of the street, the video footage provided a compelling illustration of the accident circumstances.
The CCTV camera was set up to look down the road in the direction from which the third party vehicle was approaching.
In the middle-distance, you could see 2 people standing on a street corner.
As the third party vehicle approached, one of the people on the corner waved at the car. The pedestrian’s body language suggested someone in that car was well known to them.
Presumably, the third party driver waved back. Due to this distraction, their car drifted onto the wrong side of the road and the collision occurred.
CCTV footage is not generally available for a long time after it’s recorded.
Many systems overwrite their recordings no later than every 28 days.
The early investigation by the injured person here uncovered crucial evidence to allow them to prove that the third party driver had been at fault.
The facts now independently provable were that:
- the third-party driver was probably not paying attention to the road but was instead distracted by the pedestrian;
- the likely point of impact – because the CCTV video showed that the debris left by the collision was very close to the nearside kerb on the injured person’s side of the road. In other words, very much on the ‘wrong’ side of the road for the third party to have been driving.
This case is a good illustration of what lawyers mean when they say that “it’s not about what happened but about what you can prove.”
If you have had an accident and been injured through the fault of another, you need to be thinking along these lines as soon as possible after the accident.
As it’s not just about what you say happened, what is the evidence you can gather which will prove that your version of the accident is the correct one?
Are there independent witnesses who will back you up? If so, who are they and can they be found and asked to help?
If it’s a highway tripping case, it’s an “emergency” in the sense that you need to measure the defect. And you need to take photographs of the defect. And you need to take photos of the defect with some form of scale in the image (e.g. a ruler or a 2p coin). All before the defect gets repaired and the evidence vanishes forever.
You also need to find out how long the pavement or roadway has been in that condition before the date of your accident because that will have an effect on whether the local authority can be proved to have been negligent.
The longer you leave it, the more likely it is there will be a problem with getting the evidence you need to prove how the accident happened.
In the worst case, though you will still know what happened, it will not be possible to get the necessary other evidence to prove that you have a valid claim:
- The CCTV footage has been scrubbed or overwritten.
- The pavement has been repaired, or
- That witness you were going to contact has moved away and you can’t trace them.
In general, facts are much more ’problematic’ than the law in personal injury claims.
With a personal injury claim, it’s not enough just to think that, well, you know the facts of what happened so surely that will be good enough to prove the case? In some cases, it will do. In most cases, however, it won’t be good enough.
You need to be thinking about all the different ways you could get back-up for what you say happened. Are there documents – say, an accident book entry? Could you take photographs of the locus (as well as your injuries)? Was the accident captured on CCTV? Are there witnesses (independent witnesses are best but any witness is usually better than no witness)?
Apparently the world record for the longest time taken to return a library book is 288 years. Given that most personal injury claims become time-barred after 3 years, you can’t wait centuries for the “evidence” to turn up. In many cases, much of the best quality evidence will be gone within a month of the accident.
How we can help
We hope you have found this article about the importance of getting evidence to back up your version of events in connection with your accident and injuries to be a help to you.
If you have any questions resulting from the article, please do not hesitate contact us. You can phone us on 01343 544077 or you can send us a Free Online Enquiry via this website. All initial enquiries are free of charge and without obligation.
We are always keen to receive questions because they enable us create further articles for the website or improve the clarity of any that are already here.
Links you might like
These road traffic accident-related posts and podcasts on our Moray Claims website might also be of interest:
- What rights do you have if you have been injured in a road traffic accident that was not your fault? [PODCAST]
- When can you claim for the loss in value of a repaired car? [ARTICLE]
- What are your rights following a road traffic accident that was not your fault? [ARTICLE]
- How is your loss calculated if your vehicle is damaged in an accident? [ARTICLE]
- How to get all the crucial details after a road traffic accident. [ARTICLE]