The Courts: Procedure and damages for negligence cases

1. The Courts: Procedure and damages for negligence cases Outline of civil courts and appeal system for a negligence case

2. Lesson Objectives • I will be able to draw a diagram of the civil court structure showing appeal routes • I will be able to state the jurisdiction of each court • I will be able to distinguish between different classifications of cases in negligence • I will be able to state the burden of proof and standard of care in a civil case

3. The civil courts • The majority of negligence cases are heard in the 218 County Courts – the manner in which each case is dealt with depends on the nature and size of the claim • The largest claims are heard in the High Court, QBD – usually appeals go to the CoA (Civ D) • For most legal cases in England and Wales, the HoL is the final point of appeal

5. The courts of first instance • A court of first instance is the court where a case is first tried – this will be either the County Court or the High Court • These courts have different jurisdictions so will hear different cases – the courts hope most cases will be settled out of court or by ADR • Lord Justice Thomas quote

6. The reality is that the cases are heard dependant on the track into which they fit • The courts are responsible for case management, with all cases allocated to one of three ‘tracks’ (small claims, fast track, multi-track) according to their value and complexity • If a negligence case is to be heard in the HC, it is heard in the QBD

7. Appeals • Either side of a civil case can appeal against the judge’s decision based on supposed errors of law or fact • If the appeal is from the decision of a District Judge, the first appeal will normally be to a Circuit Judge • Such appeals are usually on procedural matters or smaller claims in the County Court • Thereafter, appeals go to the CoA with a further appeal to the HoL

8. The leapfrog procedure, which bypasses the CoA, is only used where the case is of great legal importance, and will take the appeal directly to the HoL • The appeals do not take the form of a complete rehearing, but a consideration of the documentary evidence in the case and the judge’s notes of witness evidence • Appeal judges rarely change the trial judge’s finding of fact, as the trial judge will have seen the way the witnesses behaved whilst on oath in the witness box

9. The appeal court has 3 options: it may affirm the original judge’s decision (result it totally unchanged) • It may vary the decision (usually by changing the amount of damages awarded) • It may reverse the judgement in the first hearing by finding in favour of the other party (usually the party making the appeal) • Claims involving small sums and appeals to the HoL require leave of the court, either from the court where the appeal is coming from or the court it is going to – leave to appeal just means permission to appeal

10. The burden and standard of proof • In civil law cases the burden of proof is on the claimant to prove his claim on a balance of probabilities • There is a lower standard than in most criminal cases – this means the party bearing the burden of proof, the claimant, must demonstrate that it is ‘more likely than not’ that the defendant has been negligent • The burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case • In a civil trial the burden is upon the claimant to prove the liability of the defendant – the standard of proof is on a balance of probabilities

11. There are, however, two exceptions to the rule that the claimant must prove his case • The first is that, if the defendant has been convicted of a crime based on the same event, the claimant’s case in negligence will be satisfied as a court has already been satisfied that the defendant caused the wrongful act beyond reasonable doubt which is a higher standard • This comes from the Civil Evidence Act 1968 – thus a claim for personal injuries arising from a car crash where the driver has been convicted of dangerous driving will not require proof of the driver’s negligence • The driver would then have to proof that he was not negligent (impossible, given the conviction) – the only issue before the court is the amount of damages to be awarded

12. A more important exception is res ipsa loquitar – this literally means ‘the thing speaks for itself’ • The idea is that the accident causing the damage complained of would not have happened unless someone had been negligent and the thing that caused the accident was wholly under the control of the defendant – this can be seen in a 3-part test

13. The thing that caused the harm was wholly under the control of the defendant • The accident that caused the damage complained of would not have happened unless someone had been negligent • There is no other explanation of the injury caused to the claimant • The classic example is Scott v London and St Katherine's Docks (1865) – the claimant was walking along the dock when he was hit on the head by a sack of sugar. Res ipsaloquitar applied to the situation

14. If the conditions are fulfilled, the claimant does not have to prove his case – the burden of proof shifts to the defendant who has the opportunity to prove that he was not in fact negligent • The modern explanation of res ipsa loquitur was summarised in Bergin v David Wickes Television Ltd (1994) as simply a convenient label for a group of situations in which an unexplained accident is, as a matter of common sense, the basis for an inference of negligence • A clear case is Mahon v Osborne (1938)

15. There are occasions where the defendant can show that he was not negligent and so the claimant does not succeed despite using res ipsa loquitur • Pearson v North Western Gas Board (1968)

16. Res ipsa loquitur activity