Basic principles
In our legal system, a claimant must prove his or her case by producing appropriate evidence before the court to substantiate each fact and matter alleged. Although most personal injury claims are settled before court proceedings are even commenced, it is always wise to work on the basis that you may have to proceed to a trial. At a trial you will be expected to produce evidence to support each and every fact that you want the court to find in support of your claim.The task of preparing your evidence is best tackled right at the outset of your claim. The earlier you start preparing your evidence, the better: whilst your own memory and those of your witnesses recollections are still vivid. A court is likely to give greater weight to a witness statement made close to the events it concerns than one prepared months or even years later.
It is necessary to prove your case “on the balance of probabilities” (in other words, to show that what you allege is more likely to be the case than not).
The stages
There are 3 main stages in preparing a routine personal injury claim.Firstly, there is the initial fact gathering. We will ask you to complete some questionnaires; we then interview you to clarify your instructions and to ascertain the basic case facts and issues concerning your claim.
The second stage is to collect all the evidence needed to support the facts that we want the court to find in your favour, to prove your case. This usually includes interviewing witnesses; preparing statements; obtaining treatment, medical, employment and police records; and instructing medical consultants and other experts whose specialist opinion we need to support your claim.
Eventually it will be necessary to exchange our evidence to your opponent if we are to encourage a settlement or to pursue your claim to a hearing. This can either involve single exchange of all relevant evidence with your opponent, or a series of mutual exchanges of different categories of evidence. If proceedings have been commenced then this stage is usually regulated by a timetable of directions that the court imposes on the parties.
Under the Civil Procedure Rules 1998, we are required to open a dialogue with your opponents much earlier, in order to encourage negotiations to settle your claim and to ensure that both parties are better prepared, should it become necessary to commence proceedings. A pre action protocol has been set which includes a requirement to attempt to agree to the appointment of jointly instructed single experts between the parties.
Preparing the evidence on liability (fault)
Generally speaking, if you wish to succeed in recovering compensation for personal injury and/or loss arising out of an accident, it is necessary to establish the following:- that a common law or statutory duty of care was owed to you at the material time, and
- that your opponent, or someone for whom they are responsible, failed in that duty to you, and
- that this breach of duty caused your injury and loss
- that your injury or loss was of a kind that which the ordinary man would consider to be the reasonably foreseeable result of such a breach of duty.
- The evidence of witnesses
This involves preparing a detailed statement by you and any other witnesses who can support your case. These could include independent witnesses such as ordinary members of the public, work colleagues or the Police. It is necessary to prepare written statements of this evidence, since this will eventually be disclosed to your opponents and read by the Judge should your case proceed to a trial. It is important that these statements should be prepared as quickly as possible since they tend to carry greater weight if prepared closer to the events that they concern. - Documentary evidence
In an accident at work, this will include the accident report book, risk assessment records, correspondence with your employer and your contract of employment etc.In a road accident claim this can include the police accident report, if available, possibly an accident damage repair invoice or a selection of 2 or 3 alternative quotations for the accident damage repairs etc., - Expert evidence
All personal injury claims must be supported by a medical report to prove that the accident has caused the injury or symptoms complained of. Most road accident claims do not require the evidence of a non-medical expert; only rarely will a court allow a party to rely upon an accident reconstruction report. It is for the court to decide what happened at the time of the accident by hearing the parties involved and considering the other material evidence before it. - Topographical evidence
It is often necessary to obtain a rough sketch plan and a set of photographs of an accident scene.
Preparing evidence on quantum (the value of your claim)
It is very easy to lose track of expenditure you have incurred following an injury and accordingly it is important to keep scrupulous records of all these expenses. It is just as easy to forget how long it took you to recover and the exact sequence of events following the accident. Such details are vitally important in litigation, inaccuracies can effect not only the amount of your claim but also your credibility as a reliable witness.1. The injury
You should keep a chronological record of your symptoms: their nature, duration and extent. You should log the effect of your injuries on your social, domestic, work and recreational activities and on your enjoyment of life generally.You should be very careful to ensure that you log any significant time spent by your family and friends helping you to do things that you would otherwise have coped with yourself but for the injury.
We will need to obtain copies of your general practitioner/clinical notes as well as your hospital treatment notes and records.
The claim will need to be supported by a medical report, usually from a consultant, identifying your injury and its consequences and giving an opinion on the outlook for your recovery. Obtaining a final report can delay settlement of your claim. This is because it is often necessary to wait to see whether, and if so when, an injury is likely to resolve, before valuing your claim; this may take several months, even years.
2. Your losses
It is important that you should obtain receipts for all items of expenditure incurred in order to prove your out of pocket expenses.We will need to obtain a detailed statement from you summarising the effect the injury has had on you. We may also need to interview family and friends and in particular anybody who has been providing you with paid or unpaid help or care during your recovery.
It is sometimes necessary to obtain other expert reports, such as a rehabilitation/care needs assessment as some injuries involve an element of psychiatrist overlay and so it is sometimes necessary to fund a report from a psychologist or psychiatrist in order to prove this aspect of the injury.
