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Running down actions

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Running down actions occupy a considerable amount of the court’s time. These are actions by persons who have suffered injuries or property losses due to the negligence of a motorist in a vehicular accident. In 1938, Wyndham White made a compelling comment in the “Burden of Proof of Negligence in Running-down cases”, Cambridge Journal Volume 6, Issue 3, about the “appalling wastage of human life and the suffering caused by road accidents.” The incidence of negligence has necessitated legislation for “the protection and safeguard of all road users and especially pedestrian”.

Persons do not always take responsibility for their actions and very often the victim has to seek a judicial decision. In some cases there have been out-of-court settlements. In fact, if there were no out-of-court settlement, the civil court would be overwhelmed by the sheer number of matters. Madam Justice C. Gobin, in a Trinidad and Tobago case, Gulf Insurance Ltd v Naseem Ali et al (HCA) 701 of 2011), notes, “as it stands, running down actions, including third party claims for property and personal injuries, constitute a high proportion of cases in our dockets. If all of them proceeded to a trial then the administration of civil justice will collapse. The system relies on settlement before they reach trial and on the established practice of settlement before trial of the majority of them even before proceedings are filed”. In this matter, the defendants claimed that there was no judicial determination in the matter, so the insurance company which had paid others who had suffered losses, had no right to claim against them.

When a vehicular accident occurs, it is important to have a record of all information pertaining to the incident, but sometimes the accident happens so fast that no one is able to give an accurate account. Police reports could provide vital information in fitting the pieces together, so it is important to call the police to take measurements relating to the position of the vehicles and other related matters. Eyewitnesses who could give detailed evidence could play an important role as the case depends on accurate evidence. Accidents occur because of the negligence of one person or perhaps both parties and the person or persons who were negligent would be liable for the accident.

There are persons who believe that because it is an accident no one is liable. The word accident implies that there was a chance collision and someone is always responsible for a chance collision. The matter is a two-tiered one and the first appearance in court is to prove liability, that is, which person caused the accident, while the second part of the case is to assess damages, that is to say how much money the guilty party must pay.

On the issue of liability, it is possible for the court to hear the matter and not able to determine which party is liable. The matter of Baker v Market Harborough Corperative Society (1953 1 W.L.R 1492) is instructive. It held the parties equally blameworthy. The principle is summarized in the case of Howard v Bemrose RTR 32 at p. 38 by Burkley LJ who noted that “when all of the available evidence is heard and it is clear on a balance of probabilities that there is negligence by someone, but when on that evidence and on a balance of probabilities the court is unable to say whether the evidence is that of one party or the other or both parties, then it is open to the court once again on the balance of probabilities to say that the negligence was of both parties.”

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com

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