litigation support services

Introduction

The Concise Oxford Dictionary defines an ‘Accident’ as an event that is without apparent cause or is unexpected. Although throughout the following text I refer to these ‘unexpected events’ as accidents, in most cases the word is incorrectly used. When a vehicle is in collision with another object, although usually called an accident, it is the case that almost all are neither without cause or indeed should they be unexpected. Collisions are brought about by the inability of a person to control a given situation or are as a result of human error.

It is the aim of this text, not to teach the art/science of reconstructing road traffic accidents and the manner in which investigations can play a part, but to give some insight into the techniques used to determine the error factor and thus liability when such techniques have a use. Approximately 95% of road traffic accidents are caused or contributed to in some major way by human failing. Rarely can the cause of an accident be attributed to a mechanical failure of a vehicle or failure on the part of road design or other inanimate feature.

Accident reconstruction is probably the best known technical method of gathering evidence detailing how an accident happened. The raw data from the accident is gathered together and then the expert forms an opinion as to the sequence of events based on personal knowledge of how these things work and the fundamental scientific principles involved. That experience is gained not only by examination of previous accidents but also with an understanding of mathematics and physics, hence such people are considered experts in the field.

The titles given to these procedures are sometimes confusing as people refer to this form of inquisition as accident investigation, accident reconstruction and a simple engineers report. To avoid any such confusion here I will define my understanding of each term as applied within this text:

Accident investigation is an inquisition into the circumstances of an incident encompassing every aspect of investigation from reading the claims forms of those involved through interviewing witnesses to engaging the services of experts in reconstruction or engineering. Accident reconstruction is a specialist and scientific process that applies both physics and mathematics to raw factual data from which an expert in such matters can determine an opinion as to a given sequence of events. An engineers report may be supplied by an expert in mechanical engineering, detailing the reason for a mechanical failure on a motor vehicle, a highway engineers report detailing the condition, failure or other feature of a road or its furniture or an assessors report detailing the damage to a vehicle.

Courts have for a long time taken the view that the use of experts is to inform the Court about matters outside the knowledge of the Court and the average person, something a few experts seemed to have forgotten and as a result expert reports tended for sometime to do no more than detail an evaluation of the witness evidence. Civil Reforms restored this balance and again placed upon the experts a duty to the Court to present the relevant information in a case impartially taking at the same time a new step forward in using single expert evidence and seeking comment from experts on only certain technical aspects when necessary.

This fundamental principle of seeking the knowledge of someone who knows more about a subject than the Court might reasonably be expected to know has stood the test of time, all be it fallen into misuse for many years and its reintroduction is welcomed by many of the more discerning experts. Much of the flowering of reports that took place during the bad years was in fairness in part instigated by some solicitor’s who required an expert to produce evidence only in support of their client ignoring the facts in the hope that the other side would not discover them.

The way forward and indeed the way of a good majority of experts these days and now a requirement under the Civil Reforms, is to give an over view of the forensic side of an accident and leave a Judge to do his job and come to a meaningful and fully informed decision on the matter before him. It should therefore follow that if all the available evidence is presented at the negotiation stage there should be little or no need to issue proceedings on the matter of liability as that should be resolved. An ideal world we do not live in unfortunately and it is certain that responsibility for the handling of a case will remain with the fee earner or claims handler and therefore these individuals will, if they do not already, need to increase their personal knowledge of such matters if only to compete on a level playing field with their opponents.

Most personal injury fee earners and claims handlers do not need to know much about the detail of accident reconstruction or investigation as they can rely on an expert or agent to do the work for them when necessary. The difficulty is not then completing the reconstruction or investigations oneself but knowing when to ask, who to ask, what to ask and what to expect. A basic knowledge of the subject is clearly therefore a distinct advantage at all stages of the investigation into your clients claim.

These days experts are often asked to comment only on a specific aspect of an accident or a particular scientific principle and how it may relate to the particular accident concerned. You will need to know enough to identify the questions and equate the answers you receive to your file thus making the right decision and offer of settlement to the given claim. This information is often obtained under a ‘Single expert witness’ requirement, a knowledge of the subject is even more necessary for the fee earner or claims handler in these circumstances as the cost of your own expert will not be met at any subsequent Hearing.

The object of this text is to show in a practical way some of the principles used in accident reconstruction, to assist you in your understanding of the process and help you to identify when to ask, who to ask, what to ask and what to expect. The over-riding principle in any evaluation of accident circumstances is the assessment of the available evidence, accident reconstruction can be used when there is little or no other witness evidence available and can be used to back up one account or another when such evidence is available but contradictory

Reconstruction techniques should not however be considered a substitute for good old fashioned investigation into the circumstances of an accident and the evidence from witnesses such investigations can reveal. It should be considered only as a tool to compliment such evidence or as a last resort when such evidence does not exist.

Road traffic accidents are called accidents although this description is not entirely correct as I have shown above and the actual collision is usually the last thing to happen, or almost the last, the sequence of events leading to the collision being the most important part of the story and that part that will decide liability. There is almost always a chain of events, single factor causation is rare and this sequence will include several of the following factors:

The reactions of those involved will vary and the most common causes of these variations are:

There will be a reduction in the time available to the parties involved in which to react as speeds increase, road surface condition and road layout change and the weather conditions.

Much reliance is placed on witnesses to give a correct account of the sequence of events in accident circumstances but they can often be unreliable. Witnesses tend to rationalize seeing parts of a sequence of events and then allowing, often sub-consciously, the brain to re-construct the accident thereby explaining to their satisfaction what they have seen. As such reliance is placed on witnesses it is even more important to ensure that the evidence they give is correct, to this end careful questioning is essential, (see Statement taking and cognitive interviews).

The following points must therefore be considered:

Interviewing your client is pretty much the same, detailing everything they have to say and checking it against any other evidence. Once you are happy with the results or indeed have questions to ask of a technical nature that is the time to seek the help of a expert or investigators.

Locus reports may well be a good start as they will certainly be needed throughout the following processes. Many experts will want to visit the locus although if you are only asking limited questions to clear up the need for a more detailed report, photographs should suffice and are often enough for the expert to use to produce a detailed expert report.

It has been my experience that in the vast majority of disputed claims a locus report and application of the Highway Code coupled with common sense is the best way forward in resolving disputes. Good quality statements and a locus report is often all that is needed and the need for costly reconstruction work has limited application. Good solid investigation is therefore the first port of call in any incident after which a sound assessment of the need for expert evidence and in what discipline, should be obvious.

When it is needed however it may be that you only wish to ask a limited question, or you may feel the need to ask for a full reconstruction, in either case you should ensure that your chosen expert is furnished with all the available evidence and certainly when asking for a limited area to be considered, you should specify the area you wish considered.