Tag: #cylcists

BURDEN AND STANDARD OF PROOF IN INJURY CLAIMS – DO I STILL HAVE A CIVIL CLAIM IF THE POLICE OR WORKSAFE DO NOT TAKE FORMAL ACTION IN AN ACCIDENT?

 

As personal injury lawyers providing advice to clients, we find that people are often surprised to hear that not only are they burdened with carrying the consequences of their injuries, but at law, they also carry the burden of proof in their claim for compensation for those injuries.

What does burden of proof mean?

What is meant by “the burden of proof” is essentially who has the task of proving a certain fact (the standard of proof against which a claim and evidence is measured before that fact is considered proven is dealt with next). The burden of proof in different issues and aspects in personal injuries claims can depend on the law surrounding a particular type of claim.

As a broad proposition, it is the case that the burden of proving that a particular injury, loss and damage has been suffered, and that the particular injury, loss and damage was caused by a Defendant (the person or entity against whom a claim is proposed to be brought against) will rest with the injured Plaintiff.

Therefore, if you are unfortunate enough to suffer personal injuries in an incident which may give rise to compensation, it is vitally important that you take steps to protect yourself early by preserving evidence. Our role will be to handle this for you and/or to advise you on how to do so.

To prove that a particular incident occurred, necessary evidence to preserve and obtain may include the following:

  • Photographs;
  • CCTV footage;
  • Witness details and accounts;
  • First responder notes and reports (such as from Police, paramedics, SES, CFA, and 000 call takers);
  • Physical items (vehicle and bicycle wrecks, pieces of vehicles or machinery such as debris, items of clothing or footwear, blood spatters, damaged safety gear and the like);
  • Contemporaneous records entered into medical notes (such as in hospitals and medical clinics).

As to the nature and extent of particular injuries and losses, we will obtain the following:

  • Medical notes from hospitals and your treating medical practitioners, including radiological scans;
  • Medical reports from your treating medical practitioners;
  • Medico-legal reports from independent medical examiners;
  • Financial materials such as income tax returns and payslips;
  • Statements from co-workers and family members.

Great care and attention needs to be given in the wording of requests for medical opinions.

There are some instances where the burden of proof may shift to a Defendant. For example, where a Defendant alleges that a Plaintiff was contributorily negligence as to the occurrence, nature and/or extent of their own damage, the Defendant will have the burden of proving such an allegation. Also, it is common for Defendants to allege that a Plaintiff has failed to mitigate their own loss (that is, take steps to rehabilitate, retrain etc) – they must produce evidence to satisfactorily establish that.

Do not think simply because you are the one who has had injury inflicted upon you due to no fault of your own that you can sit back and compensation will materialise – you must prove your entitlement.

To what standard must I prove my case?

In civil cases based on negligence dealing with personal injuries and compensation/damages, all issues must be established “on the balance of probabilities”. This does not require absolute scientific certainty, but rather requires proving something on a more probable than not basis.

We often get questions from clients who are concerned as to what it means for their case if officials such as Police, WorkSafe or other statutory bodies elect not to press charges and prosecute a person or entity for what has occurred. Whilst it can obviously be helpful for a subsequent civil claim if this occurs and a conviction is secured against a Defendant, this generally will not be fatal to a Plaintiff’s proposed claim. In fact, it is commonplace.

That is because with, for example, Police looking into investigating a certain type of wrong doing in a motor vehicle accident, they are required to consider whether they can make out a charge to the criminal standard, which is “beyond reasonable doubt”, measured against the specific elements of a defined crime. This is a higher and more difficult standard than the civil standard. Also, although the consequences of an accident are highly relevant for the Police, the focus is often more so on the actions (including intent or otherwise) of someone who caused the accident in terms of assessing culpability. Things are more nuanced from a civil negligence perspective, in that a simple failure by a Defendant (such as a positive action or inaction) can lead to catastrophic consequences for an injured Plaintiff; it is common in road accidents to see one driver only issued with a fine for failing to give-way while the outcome of the failure to give-way may be fatal injuries or severe and permanent disability to the injured Plaintiff who was on the wrong end of the Defendant’s action/inaction. The same can apply with workplace accidents or incidents in public or private places where not even a fine can be issued. Provided you can nonetheless discharge the burden of proof to the requisite standard of proof, very substantial damages (pain and suffering, economic loss and in some cases, medical expenses and care) will be achieved regardless of the position the authorities have taken.

Although the standard of proof in a civil claim for damages based on negligence is a lesser standard to which a prosecution must make out a charge in a criminal matter, this does not mean a lawyer acting for an injured Plaintiff can be lazy or take less care in going about proving a client’s case: we at Fortitude Legal do the opposite (noting the burden you carry) and we will always undertake a forensic analysis and approach to our clients’ claims to give you the best prospects of success.

As a cyclist, you may have entitlements under the transport accident scheme if you were injured as a result of a collision that was directly caused by the driving of a vehicle (including cars, buses, motorcycles, trains and trams).

It is important to note however that you may be covered as a cyclist in a number of additional scenarios including:

NEAR MISS – if the driving of a vehicle directly caused a need for you to take evasive action to avoid a collision and you ultimately suffer injury;
CAR-DOORING – an incident involving a collision between you as a cyclist and an open or opening door of a vehicle;
TRAVELLING TO OR FROM WORK – an incident involving a collision between you as a cyclist and a motor vehicle while you were travelling to or from your place of employment (the vehicle can be a parked or stationary vehicle);
COLLISION WITH A STATIONARY VEHICLE – an accident involving you as a cyclist and a stationary vehicle for accidents on or after 9 July 2014.

Furthermore, following ‘test case’ litigation in which Fortitude Legal’s Tom Burgoyne acted for the injured cyclist, the law with regard to collisions with stationary vehicles has changed for the better for cyclists across Victoria.

On 7 June 2018 a Bill was introduced into Victoria’s Parliament https://www.premier.vic.gov.au/cyclists-and-all-victorians-to-benefit-from-tac-changes/ to amend the transport accident legislation such that a collision between a cyclist and a parked or stationary vehicle will constitute a “transport accident” and not be confined to a situation where a cyclist is riding to or from work. After passing both Houses of Victoria’s Parliament on 20 September 2018, the Bill received Royal Assent on 25 September 2018 such that changes commenced on 26 September 2018.  The amendment has retrospective effect to 9 July 2014 and any cyclists injured in collisions with parked or stationary vehicles from that date will also be covered. This is referred to as “Rory’s Law”.

As a cyclist, you may be interested to read Tom’s article professionally published in the Law Institute Journal which called for a change to the law after Tom ran Rory’s test case https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/Jan-Feb-2018/Cyclists-beware

The scheme surrounding transport accidents and your entitlements is complex and there are strict time limits that apply.  It is important that you get appropriate legal advice from the outset to ensure that your rights are protected.

We can help you navigate the scheme, maximise your entitlements and make the decisions that are right for your future.

If you have a query, please do not hesitate to contact our expert Transport Accident Team for a no obligation chat..