The Significance of Evidence in Personal Injury Claims
Written by Michaela Christie
Introduction
The success of a personal injury claim heavily relies on the quality and strength of the evidence presented. It is not merely about conveying a persuasive argument but ensuring it aligns with tangible proof, substantiating the claimant's position. This blog explores the critical role of evidence in personal injury claims and emphasises its impact on establishing liability, obtaining necessary proof, utilising expert opinions, incorporating witness testimonies, and addressing the consequences of weak evidence.
Establishing Liability
If the Pursuer has trouble proving that the Defender is responsible for their injuries it is vital to ensure that whilst seeking reparation, their solicitor exhausts every avenue available to them whilst ingathering the evidence. As such, this may include obtaining medical records, expert reports, witness statements, photographs, dashcam footage, police precognitions and/or police reports etc which are subsequently acknowledged as corroborative. Expert opinions can be deemed necessary to establish liability and in assessing the extent of a Pursuer’s injuries, some of which may include those provided by medical experts within a specified field and specialists in accident reconstruction etc. Liability is also established by proving that the harm suffered has been directly caused by the accident. This harm sustained may include but not limited to - physical injury, psychological injury, emotional distress and financial loss.
Obtaining the Evidence
Initial documentation of the accident scene is imperative, with clients encouraged to capture photographs and measurements. Law firms routinely request medical records to verify post-accident GP or hospital visits, providing essential proof of the severity of injuries. This also aids in uncovering any pre-existing conditions undisclosed by the claimant, ensuring transparency in the claims process.
Expert Evidence
Referring to the case of Kennedy v Cordia (Services) LLP [2016] UKSC 6, the importance of expert evidence is underscored. Independent medical experts play a crucial role in assessing injuries and their impact, even in cases of seemingly minor incidents. Adhering to the Scottish Pre-Action Protocol timelines ensures a smooth progression of personal injury claims, especially in significant accidents involving insurance companies.
The Role of Witnesses
Credible witnesses significantly contribute to building a robust case. Collecting contact details promptly and securing supportive statements from witnesses is vital. The urgency in gathering witness evidence stems from the natural deterioration of recollections over time. The Anderson v Jas B Fraser & Co Ltd 1992 S.L.T 1129 case highlights the competence of witness statements obtained during precognition in supporting a claim.
Disadvantages of Weak Evidence
Claims supported by indisputable evidence are more likely to secure successful outcomes. Conversely, weak or insufficient evidence may lead to contention, resulting in reduced settlement offers or unsuccessful claims. The clear establishment of the link between the accident and injury is crucial to avoid complications and additional costs associated with updated reports.
Conclusion
Compelling evidence is essential when establishing liability. This provides justification as to who was at fault for an accident and forms the basis of any victorious personal injury case.
Concrete evidence enables Defenders and/or the courts to measure the severity and impact of the harm sustained by the Pursuer. Furthermore, the strength of the evidence can positively influence negotiations and encourage the other side to settle the claim for a much greater monetary value.
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [February 2024].If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.
Pothole injury claims
Written by Stella Kankaanpaa
Introduction to pothole injury claims
The majority of roads in Scotland are public and governed by the local authority or council for the area, with section 1 of the Roads (Scotland) Act 1984 imposing a statutory duty upon them to inspect and maintain these roads. This therefore means that it is the local councils that are responsible for carrying out regular inspections and arranging for necessary repairs to be made. A failure to fulfil this duty through neglecting a pothole can therefore lead to the local council being subject to a personal injury claim.
However, while any individual who has suffered an accident due to a pothole can make pothole injury claims against the local council, not everyone will be successful. As the majority of roads in Scotland are owned and operated by the local councils, the court acknowledges that the burden upon them is vast with them being unable to immediately become aware of each pothole and repair it. For example, figures obtained by the Scottish Conservatives under the Freedom of Information legislation showed that less than 20% of pothole claims were successful in 2021/2022.
It is, in other words, not enough to simply show that a pothole had developed on a public road and that an injury had occurred as a result of it.
Requirements for a successful claim
To successfully claim against a local council for a pothole injury, the following must be proven:
- Duty of Care
Firstly, for a local council to be held liable, it must be proven that the local authority owed a duty of care and that they had breached their duty.
As set out by Lord Drummond Young in MacDonald v Aberdeenshire Council [2014] SC 114 at para 64, the local council must be at fault for failing to deal with the defect by it being proven that had they exercised reasonable care, they would have identified the hazard and taken steps to correct it. It must therefore be proven that the local council had (1) either been aware of the pothole or that they should have been aware of it and (2) that they had had sufficient time to repair it, but failed to do so.
The first step to take is therefore to find out whether the local council had already been made aware of the pothole by someone having reported it.
If no one has, or you cannot find out if anyone has, the local council’s code of practices and cycle of inspections may instead be relied upon. These, amongst other, set out the timescales for the inspection and maintenance of different categories of roads and pavements. However, at the outset, it can be noted that while motorways and other main roads should be frequently inspected, minor or local roads are often only required to be inspected every 12 months. As such, it may be acceptable for a local council to be unaware of an unreported pothole for up to a year.
Furthermore, as clarified in Syme v Scottish Borders Council [2002] and Pocock v The Highland Council [2017] CSOH 40, a failure by a local council to follow their own policies or plans is not by itself sufficient as a policy cannot dictate the content of the duty of reasonable care. This, therefore, allows the local council to escape liability in some cases if it can only be shown that they had exercised reasonable care in the maintenance and repair of the road in question.
Obtaining evidence in the form of records of previous complaints, maintenance schedules, and eyewitness accounts is therefore of crucial importance.
- Causation - that the injury was caused by the local council's negligence
Secondly, the chances of success are further dependent on the size of the defect in question.
Previous judgments have generally required potholes to be at least 40mm deep if an accident took place on the road and 20mm deep if it took place on a pavement. Measuring and recording the depth of the pothole as soon as possible after an accident has taken place is therefore recommended.
However, a pothole does not always have to meet the above measurements. In areas where there is a higher footfall or more vulnerable road users, such as in car parks, schools, hospitals, and care homes, a higher standard of maintenance can be expected.
How much compensation can you expect?
The amount of compensation that can be awarded if making a successful claim will naturally depend on the nature and duration of the injuries but can further be limited by the extent to which the local council is found liable.
For example, if the injured party had paid inadequate attention to the road in question, they may have been contributorily negligent and be deemed partially liable for their own injuries (Hutchison v North Lanarkshire Council [2007] CSOH 23, para 8 and 22).
Conclusion
To conclude, while successfully claiming against a local council for a pothole injury claims is not impossible, it can be a challenging task. This is because in order to succeed, it must be proven that the local council owed and breached their duty of care and that this breach directly caused the accident.
Many claims fail at the first stage as the court has acknowledged that the burden placed upon the local councils is vast, with it being impossible for them to inspect and repair each road as often as may be required.
However, steps can be taken at the outset by a client to increase their chances of succeeding by, amongst other:
- Measuring the depth of the pothole/defect as soon as possible after the accident and taking photos of this to prove that the pothole was sufficiently large. Ensure the photos show the wider area and nearby landmarks, as well as close up images.
- Checking the scene of the accident for possible CCTV cameras and speaking to any witnesses at the scene. It may be helpful to speak to any locals who may know how long the pothole has existed
- Reporting the pothole to the local council so that you can prove when the accident took place
- It may also help someone else later if you see a pothole or defect opening up and report it. Once the council has been notified that there is a defect, they’ll be expected to check it, monitor it or repair it. If they don’t and an accident happens later, that person will have a higher chance of succeeding because someone before them reported it.
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [February 2024]. If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.
A Landmark Medical Negligence Case
Montgomery v Lanarkshire Health Board [2015] UKSC11
Reviewed by Michaela Christie
Background and Complications
This landmark medical negligence case highlighted the circumstances pertaining to a diabetic mother who had not been forewarned of the complications likely to arise during her future labour. Following the discovery that she was carrying an above average sized baby which subsequently resulted in her newborn baby suffering from shoulder dystocia, the notion of informed consent to medical treatment was notably taken into further consideration by the Court. Sadly, the pursuer’s baby was born with cerebral palsy consequent to an obstruction of the umbilical cord caused by shoulder dystocia, a particular form of complication experienced by women during childbirth.
Allegations and Choices
The pursuer affirmed that she should have been made aware of the potential risk of shoulder dystocia, further stating that she had never been presented with the choice of a caesarean section before giving birth, which would have ultimately prevented these risks from manifesting, similarly protecting her baby from suffering permanent injury.
Accordingly, the expert evidence which was heard confirmed a 9-10% risk of the pursuer’s child suffering from shoulder dystocia if she delivered her baby without receiving a caesarean section. Additionally, the pursuer should have been made aware that generally, there is an expectation of diabetic mothers giving birth to larger than average babies in comparison to non-diabetic mothers.
Legal Proceedings
Unfortunately, legal proceedings in this case were rather extensive as the case progressed to appeal. Initially, application of the Bolam test was upheld, and the claim was dismissed. This test referred to the premise that the actions of medical professionals are proportionate to the actions of others in the same situation. Furthermore, this decision continued to be upheld on appeal to the Inner House of the Court of Session. However, Mrs Montgomery then appealed to the Supreme Court who then meticulously reviewed the law on informed consent and upheld the appeal.
Evolution of Doctor-Patient Relationship
Interestingly, the Court reasoned that the previously accepted concept of the doctor-patient relationship no longer reflected reality, thus citing that patients were competent enough to form a clear understanding of medical issues on their own terms. It was held that doctors have a duty to take reasonable care to ensure that a patient exhibiting clarity of mind is made fully aware of any material risks which may be anticipated during treatment. Moreover, patients should always be informed of reasonable alternatives to standard forms of practice. Evidently in this case, it appears that there had been a clear failure to provide the patient with the choice of an alternative recommended procedure. The Court also found that the assessment of risk to a patient should be based on the relevancy to the circumstances of each of their own personal situations. It was further held that a doctor must engage in clear communication with their patient thus enabling them to make an informed decision about whether to undergo a proposed procedure, despite this being contrary to their best interests in the eyes of the physician
Personalised Risk Assessment
The Court highlighted the importance of assessing risks based on individual circumstances. Clear communication and the provision of alternative procedures were deemed essential, even if against the physician's perceived best interests.
Collaborative Decision-Making
The ruling in Montgomery successfully emphasised the importance of doctors and patients reaching their decisions collaboratively, as well as the requirement for doctors to consider when risks may potentially pose a critical outcome to an individual patient’s position. On this merit, it is formerly what a “reasonable doctor” would consider important that is held to be paramount when the issue of informed consent is addressed by the Courts.
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.
We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.
Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [February 2024].
How to secure compensation against untraced or uninsured drivers
What is the Motor Insurer’s Bureau (MIB)?
The Motor Insurers Bureau (MIB) is an organisation that exists to compensate innocent victims of road traffic accidents who have been injured or had their property damaged by an uninsured or untraced driver. The MIB is a non-profit organisation that is funded by the insurance premiums of UK drivers and is intended to be a “fund of last resort”. Therefore, if any other policy of insurance covers the claim or any part of it, it must be directed to the relevant insurer.
In short, this means that if you have been injured in an accident caused by an uninsured driver or untraced (i.e. a “hit and run” type situation) you will still be able to claim compensation for your pain, suffering and other financial losses.
When dealing with the MIB, it is always better to consult with a personal injury solicitor in order to get the correct guidance and maximise the level of compensation awarded, particularly as the MIB have their own policies and procedures which must be adhered to in order for the claim to be successful.
What do the MIB do?
The MIB carry out a number of schemes:
- Claims against untraced drivers
- Claims against uninsured drivers
- Claims against a foreign registered vehicle
- Claims from an accident abroad
What can be claimed for through the MIB?
- Personal Injury
- Vehicle damage
- Property damage
- Wrongful death
- Uninsured loss (e.g loss of earnings/ policy excess)
Making a claim against an uninsured driver
It is illegal to drive a vehicle in the UK without being insured and could result in a £300 fixed penalty notice and 6 points on your license. In more serious cases, it could result in prosecution and/ or a complete driving ban. Despite this, many people knowingly drive without valid insurance and it can cause serious issues for people who are involved in an accident with them. The MIB reported in December 2023 that every 20 minutes someone in the UK is hit by an uninsured or hit-and-run driver and, tragically, each day at least once person suffers such severe injuries that they require lifelong care. According to the figures published by the MIB last year, uninsured driving increases the annual premium for each UK driver by approximately £53 per year.
Uninsured Drivers’ Agreement
Claims involving uninsured drivers are governed by the 2015 Uninsured Drivers’ Agreement which applies to any accidents occurring on or after 1 August 2015. In situations where no insurer can be traced, the MIB will effectively step in and take their place.
Making a claim against an untraced/ Hit-and-Run driver
In Scotland, if you are a victim of a hit and run accident, you may be eligible for compensation through the MIB. To make a claim, you must meet certain criteria, for instance, you must have reported the incident to the police within a specified time frame, usually 14 days, and provide the MIB with all of the necessary information and evidence to investigate the claim. It would also be useful to make your own investigations and ingather as much evidence as possible before submitting the claim, for instance, requesting CCTV and dash cam footage from the locus. This can make it easier for the Police to trace the third party driver/ vehicle.
What will the compensation cover?
The compensation can cover a range of damages, such as medical expenses, property damage, loss of earnings and pain and suffering. The amount of compensation which you will receive will depend on the circumstances of the accident and the extent of your injuries.
Untraced Drivers’ Agreement
Untraced claims are dealt with through the 2017 Untraced Drivers’ Agreement and applies to all accidents occurring after 1 March 2017.
Typical scenarios
- Driver may think that it was a minor accident and fail to stop at the scene.
- In some cases, people drive off unintentionally without realising they have been involved in an accident, e.g. larger vehicles such as HGVs.
- A pedestrian may be struck by a vehicle and the driver may leave the scene without checking if the person is ok.
- A vehicle may have been cloned.
- False or incorrect details may be exchanged at the scene.
Written by Kyanna White
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.
We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.
Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [January 2024].
If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.
Biker seriously injured in a road traffic accident because of negligent driver
Overview of the case
Our client was injured when a car driver who was not looking pulled out into her path while she was on her motorbike in North-East Scotland. Despite the fact the police suggested our client should have paid more attention to the car coming on the major city road and the police not saying the car driver was entirely to blame we argued the car driver was fully at fault. The insurers of the car also tried to suggest some of the blame for the accident should be shouldered by our client but again this was knocked back by Gildeas.
Injuries sustained by the client
Our client had been travelling below the applicable speed limit when the car pulled out into her path, she collided with the car and fell to the ground. Despite her wearing full protective kit she sustained life changing injuries.
Her head hit the ground and she sustained a traumatic brain injury, she also bit through her tongue and suffered injuries to her hands. Our was a trained chef who taught at a local college. How could she demonstrate how to use a knife to her students with hand and wrist injuries? How could she taste their food when she had bitten through her tongue and cause permanent damage to it?
The outcome of the case
Fortunately for our client, her insurers suggested Gildeas could assist her in putting her life back together after the road traffic accident. Gildeas investigated all of her injuries, both physical and mental.
After attending for various examinations Gildeas were in a position to provide tailored advice to her in terms of what her losses were and what we had to recover on her behalf to allow her to move on. A court action was raised and following lengthy discussions and negotiations with the other side an offer of more than £250,000 was secured. Given the initial offer made was £100.000 this is a significant increase on what was initially offered by the other side before a court action was raised and was almost double the offer made initially by the solicitors for her insurers.
Our client is very grateful to Gildeas for the advice you received and guidance. Whenever she was worried about something she knew she could call and receive an explanation as to why something was happening or not as the case may be.
Comment from the client:
Stephen Hay, thank you so much for representing me after life-changing injuries in a bike crash due to other’s negligence. Thorough professionalism, patience, toleration & understanding was received on every level, keeping me fully informed throughout. Everything explained accurately, briefly & clearly simplifying it for me to understand on many occasions. You knocked it out of the park! I wish yourself Stephen, Fergus Thomson (advocate) & everyone at team Gildeas all the very best, as first class solicitors to professionally deal with from start to finish.
Director Stephen Hay says:
“This case was complex, she was injured just before lockdown, her treatment options on the NHS were limited given the stresses experienced by the NHS from March 2020 onwards. There was also the issue of considering but for the accident what would our client have done? There was a significant mental injury element to the claim. She loved to be on her motorbike. She used it daily to get to and from work. Her confidence was severely knocked because she lost her independence, her ability to do things and with lockdown she felt unable to leave her home. We worked with her and with our partners to arrange for treatment, both physical and mental. When we were ready, we were able to discuss what the future would hold for our client, what she would need and what she would be able to do before approaching the other side to discuss what they would need to pay. At all times our client was engaged and part of the process and I am delighted that she is now able to put this accident behind her and move on with her life.”
Gildeas Solicitors have offices in Glasgow and Edinburgh and specialise in personal injury cases, including road traffic accidents.
We go the extra mile for our clients by providing services such as roadside assistance, vehicle repairs, and hire vehicles.
Customer satisfaction is our top priority. According to customer reviews , among civil law firms with over 200 reviews, we proudly hold the second highest rating in Glasgow. We currently have a stellar rating of 4.9 on Reviews Io and 4.7 on Google [January 2024].
If you require any assistance, please don’t hesitate to reach out to our dedicated New Claims team at 0141 331 6070.