THE NEED FOR A CLAIMANT TO PROVE INJURY: WITHOUT EVIDENCE THE ACTION SHOULD NOT HAVE BEEN BROUGHT

The earlier post on proving causation  highlights the matters that claimants need to prove when bringing a claim for damages.  One essential element is that a claimant needs to prove damages.   One case that shows a clear illustration of this is  Kavak v FMC – HHJ Pearce Manchester CC 24.04.18)

 The case provides a clear illustration of a failure to prove a basic element of a claim. In this case failing to prove that a claimant had suffered any injury at all.  A series of three observations from the judge makes it clear that the claimant could not state that he had suffered injury.

 

“The Claimant’s evidence in court amounted to an acceptance that he could not say whether he had suffered injury or not. In those circumstances, I do not see that he could ever properly have brought a claim for such injury.”

WEBINAR ON PROVING DAMAGES

On the 25th November I am giving a webinar on Proving Damages, in the  context of personal injury litigation.  Booking details are available here. 

The webinar looks at the challenges facing practitioners having to prove damages at trial. It looks at those cases where claimants have failed to establish damage, or key heads of loss and the practical steps that can be taken to ensure that losses are established at trial.It also looks at the dangers of claiming damages that can not, in fact, be proven. These include the risk of an allegation of fundamental dishonesty.

THE FACTS OF KAVAK

The claimant brought an action for damages for personal injury. He had been involved in two other accidents in the previous six months.  The judge found that the claimant had not established that he had suffered any additional injury over and above that he was already suffering as a result of the previous accidents.  The claimant, the judge found, was not dishonest, but unable to prove his case.

THE JUDGE’S OBSERVATIONS ON CAUSATION AND EVIDENCE

“The decision as to whether to pursue a personal injury claim was that of the Claimant (and his lawyers). Such a claim could not or at least should not have been pursued unless both the Claimant believed that he had suffered personal injury and the lawyers acting on his behalf consider that he had a reasonable prospect of showing that.”

“The Claimant’s evidence in court amounted to an acceptance that he could not say whether he had suffered injury or not. In those circumstances, I do not see that he could ever properly have brought a claim for such injury.”

“The Claimant would only have been exposed to the risk of a finding that he had lied about suffering personal injury if he had asserted that he had suffered injury. For the reasons set out above, I do not see that he had the material upon which to assert that he had suffered injury.”