Chapters

Need for a Lawyer

 

Court proceedings are quite often complicated and can be stressful. If a person has to go to court to prove their claim, they should consider instructing a lawyer to handle the case. This is especially so if the other party has a lawyer. If they have organised their own letters of demand, their lawyer would not be involved in the first part of the process, and the fees would be reduced.

More than one court appearance is usually involved. There are appearances to arrange procedural matters.

All claims must go to some form of conciliation before there can be a hearing.  Conciliation is a meeting between a mediator and the parties and their lawyers (if they have lawyers).  It is designed to settle the claim by agreement without the expense of a trial by a judicial officer.  More than 80% of claims settle at mediation. 

Proof

 

In any court action for damages as the result of a motor vehicle collision, evidence is given orally by those persons who are directly involved, or who witnessed the accident. The drivers of each vehicle, and their passengers, can give evidence of what they saw and what they heard. Courts tend to give more weight to the evidence of independent witnesses, such as drivers of other vehicles or pedestrians who saw the accident. The onus of proving that the other party was negligent rests upon the person making the claim.

Quite often a very useful witness is the police officer (if any) who was at the scene. A person can find out who the officer was, and also who the police believe was most responsible for the accident, by applying for a traffic accident report (TAR). To get a TAR it is necessary to fill in a form called an ‘Application for Traffic Accident Information’ which can be obtained from a local police station. A fee must be paid.

Frequently, a police prosecution is commenced against one of the drivers concerned. Police (‘criminal’) proceedings are quite separate from civil proceedings for damages, and the fact of a conviction cannot be used as evidence in the civil case. In civil cases the court looks at all the circumstances of the accident before deciding which party or parties are at fault and, as indicated earlier, can decide that both parties are at fault in varying degrees.

However, if the person is aware that a police prosecution is taking place it may be a good idea to attend the court, or have someone attend on their behalf, to see what is said, especially if a large claim is involved. If there is a hearing, then the evidence of the police, the defendant and witnesses can be noted. In case of a plea of guilty, the statement of the police prosecutor can be checked against the TAR and the ‘plea in mitigation’ made by the lawyer or defendant can be noted. Written notes should be made of important evidence, especially an admission of certain key facts. This will help the person (or their lawyer) prepare their case more thoroughly. In certain circumstances this evidence can also be used where the defendant later gives a different account.

Damages

 

It is a general rule of law that any party who has suffered damage must minimise that loss. This is called the duty to ‘mitigate damages’. If a person is claiming damages following an accident, they must prove that the damages were caused by the collision. It is necessary therefore to obtain a detailed quotation for the repairs to their vehicle, and in fact it is advisable to obtain at least two quotations as evidence of the reasonableness of the claim.

Sometimes, of course, the vehicle will be so badly damaged that the repair costs will exceed the market value of the vehicle and it will be uneconomical to repair. It is only possible to claim the value of a vehicle at the time of the accident, and to prove this a certificate of valuation is needed from the repairer. If the claim is a large one, it is wise to engage a loss assessor (or adjustor) who will charge a fee. This can be recovered as part of the legal costs.

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