The word liability is a legal term. It describes that part of a TAC common law claim that deals with how the accident occurred. It is best characterised by the expression – “Is the defendant liable to pay damages?” The defendant will only be liable to pay common law damages if it was the defendant’s negligence that caused the accident victim’s/plaintiff’s injuries. In other words, it is necessary for the plaintiff to prove that the defendant was negligent. When lawyers talk about liability in the context of a TAC common law claim, this is what is being referred to.
A TAC common law claim is a “civil” claim for damages. It is not a criminal claim. Criminal actions are brought by the police on behalf of the community. The purpose of the criminal law is to punish an offender on behalf of the community. A civil claim is brought by the plaintiff in a personal capacity against the defendant to seek compensation for the results of the defendant’s negligence or careless conduct.
In TAC claims, the defendant is nearly always covered by TAC compulsory third party insurance. This means that the TAC, in its capacity as Victoria’s compulsory third party insurer, pays the common law damages rather than the defendant personally. There is a different standard of proof required in a civil claim compared to a criminal action. In a criminal action, the police or the Office of Public Prosecutions must prove beyond a reasonable doubt that the accused person committed the offence. In a civil action, the plaintiff must prove on the balance of probabilities that the defendant’s conduct was negligent.
It is not hard to be negligent. Simply getting into your motor car and driving slightly faster than the posted speed limit would be regarded as negligent conduct. At some time or another nearly every motorist has driven negligently. The only reason claims aren’t brought against them is because their conduct has not resulted in a person being injured as a consequence of the negligence.
As accredited specialists in TAC law we carry out thorough investigations into the circumstances of an accident to try to secure evidence that will help in proving, on the balance of probabilities, that the defendant’s driving was negligent. We try to get evidence to show that a reasonably prudent motorist would either have not done what the defendant did or would have done something other than what the defendant did.
This initially involves obtaining a police report and also ambulance records. We always try to identify witnesses to the accident so that we can obtain statements describing what occurred. We often visit the scene of the accident to get a better feel for what might have occurred. Sometimes we engage an expert engineer to look at the circumstances of the accident in order to come up with an expert opinion to assist the plaintiff to prove that the defendant was negligent.
In some accidents it is easy to prove negligence. If someone goes through a Give Way or Stop sign and hits another vehicle, liability is usually fairly easy. However, if the plaintiff wasn’t wearing a seat belt at the time of the accident or alcohol had been consumed, a question of contributory negligence can arise. Accidents involving the consumption of alcohol by the plaintiff can raise particular difficulties because of the community attitude that exists about drink driving. The liability question in TAC common law claims is often fairly straightforward, however, in a significant proportion of cases it requires a good deal of investigation. Sometimes the plaintiff might have suffered a concussive brain injury in the transport accident. In such cases it is normal for the plaintiff to have no memory of the accident or for the events leading up to the accident. In such cases it is vitally important to carry out a detailed investigation into how the transport accident occurred and, if possible, to locate witnesses to the accident. In this way the circumstances can be ascertained and an informed judgment can be made about the liability question.
It is important in very serious accidents to retain the services of a specialist TAC lawyer as quickly as possible. This can sometimes mean the difference between having a claim and being left without compensation or damages.