Understanding the Law
February 15, 2013

Running down actions

Running down actions occupy a considerable amount of the court’s time. These are actions by persons who have suffered injuries or property loss due to the negligence of a motorist in a vehicular accident. Way back 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,” which has necessitated legislation for “the protection and safeguard of all road users and especially pedestrians.”{{more}}

Persons do not always take responsibility for their actions and very often they have to seek a judicial determination. In some cases, there have been out of court settlements. In fact, if there were no out of court settlements, the civil court will be overwhelmed by the sheer number of matters. Madam Justice C. Gobin in 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, has 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 suddenly 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 who was negligent would be liable for the accident.

There are persons who believe that because it is an accident, no one is liable. But 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, while the second appearance is to assess damages.

On the issue of liability, it is possible for the court to hear the matter and not be able to determine who was liable. The matter of Baker v Market Harborough Corporative Society (1953 1 W.LR 1492) is instructive. It held the parties equally to blame. 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 on the part of somebody, 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, and then, being of further information enabling the court to apportion the blame, the court will conclude that the parties contributed equally to the accident.”

Ada Johnson is a solicitor and

arrister-at-law. E-mail address is:

exploringthelaw@yahoo.com