We are often approached by injured people who are unable to remember how their accident occurred with a reasonable level of specificity. This might be the result of brain injury, shock, or simply because people were more interested in the injury they sustained, than the mechanics behind the accident.

These cases offer particular difficulties for lawyers who are trying to establish an entitlement to damages.

In common law cases, when determining liability for an accident and whether to award you damages the Court will need to consider whether a defendant knew or ought to have known that whatever caused your accident gave rise to a foreseeable risk of harm, about which the defendant ought to have taken precautions.

In particular the Court must apply section 5B of the Civil Liability Act2002 (CLA) which provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant, and in the circumstances a reasonable person in the defendant’s position would have taken those precautions.

Section 5B further provides in determining whether a reasonable person would have taken precautions against a risk of harm the Court is to consider the probability that the harm would have occurred if care was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that created the risk of harm.

It is very difficult to persuade a Court that a defendant ought to have done something to prevent an accident, in circumstances where the injured party is unable to say what caused it!

It is therefore of critical importance that your lawyers investigate your case thoroughly and confirm the cause of your accident. This includes locating and talking to witnesses and, if necessary, obtaining orders from the Court for discovery of materials (including CCTV and incident reports etc.) that will shed light on the circumstances of your accident.

If you or somebody you care about has been injured in an accident, then you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry,

Written by Iain Miller.

Iain Miller is a Senior Solicitor in Julie Mahony’s Practice Group. Iain has experience representing people in a range of areas, including public liability, motor vehicle accidents and medical negligence.