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Rules for proving fault in accidents

The rules for proving fault in accidents come from the law of negligence. As explained in the negligence law overview a court may find a person negligent if: (i) he did something that a reasonable person would not do, or (ii) he failed to do something that a reasonable and prudent person would do.

Hypothetical example to show how the rules work

Using a hypothetical situation to look at how the rules for proving fault work, let's say two drivers are involved in a road traffic accident. After hearing the evidence, the court will determine the question of liability. In some cases, the court may find that one of the drivers was entirely at fault -- for example, the offending driver may have caused the accident by driving too fast, whilst the other driver did nothing wrong.

In other cases, the court may rule the drivers were equally at fault -- for instance, one driver may have been speeding, but the other took his eyes off the road.

And in other cases, the court may apportion fault unequally between the parties (e.g., 60:40 or 80:20) so that one driver bears most, but not all, of the blame -- for example, the court could find one driver 90% responsible for causing an accident by failing to check his mirrors before taking a turn off the motorway and another driver 10% responsible for speeding.

Where an injured person is held wholly or partly responsible for his own injury, this is known as contributory negligence.

Proving negligence

There are several ways to prove negligence. Continuing the traffic accident scenario used above, a claimant may have witnesses who can testify that the defendant was in the car and was driving carelessly.

In addition, the defendant may have been convicted of a driving offence after the accident. Although the conviction would not be conclusive of negligence, it would strongly support the claimant's case that the defendant was negligent. The same would be true of evidence showing the defendant operated his vehicle in violation of the Highway Code.

The law may also infer negligence based on the defendant's conduct, under the rule that "the thing speaks for itself" -- for example, driving on the wrong side of the road or driving without lights after dark.

Presenting the evidence

You must present solid evidence to prove your claim of negligence. This may include a police report and photographs and diagrams of the accident scene. In a road traffic accident, evidence of the weather and lighting conditions may also be helpful. Additionally, in some cases appointing an accident reconstruction expert may be good idea too.

Apportioning liability

As explained above, a person making a claim of negligence will bear some of the responsibility for an accident if he was contributively negligent. For example, a pedestrian who ventures into a busy road from between two parked cars in foggy weather will almost certainly be assigned a substantial share of the fault if a driver hits him.

Although published cases may provide some useful guidelines, an injured person who brings a claim to court should not assume that the court will allocate liability in the same proportion that a court may have done in another, similar case. In fact, law reports are full of examples where appellate courts have significantly changed the allocation of fault set by a lower court.

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