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Glossary—Latin legal terms

Glossary—Latin legal terms Despite attempts in recent years to simplify the language used in legal cases, there are still a number of Latin phrases commonly used in personal injury claims. The following Latin phrases are listed in alphabetical order: Latin term Definition Meaning Acta iure imperii Legal acts of public nature Liability of the state for actions or omissions in the exercise of state authority Bona Fide In good faith A Bona Fide agreement is one entered into without intent to deceive Caveat Take care/caution A legal notice to the court to prevent another party taking action without informing the person who gave the notice Compos Mentis Of sound mind Legally fit to conduct the claim De Facto In fact As a matter of fact Ex Gratia As a matter of favour An ex gratia payment is made without any legal or contractual obligation to do so Ex Parte By a party An ex parte application is made to the court by one party in the absence or without...

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Proving negligence in road traffic claims

NOTE: Major changes to the Highway Code came into force on 29 January 2022. The concept of a 'hierarchy of road users' was introduced to give vulnerable road users a greater degree of clarity over who has right of way at junctions. For further details, see News Analysis: A Highway Code for the future—visionary changes or increased risks? and The Highway Code—8 key changes from 29th January 2022.Practitioners may be assisted by reference to case law which can give an indication of the likely liability apportionment in certain circumstances. However, the question of whether a road user has failed to drive with reasonable care is fact sensitive.The most common allegations of negligence in road traffic accidents are failing to keep a proper look out and/or driving too fast.Evidence of negligence may be gleaned from the following sources:•the Highway Code•statutory duties, eg in relation to traffic signs•relevant motoring convictions•police records•accident reconstruction expert evidence•Driving Standards Agency (DSA) driving manuals and other specialist publicationsPractitioners should regularly review claims particularly as new evidence emerges....

Burden of proof in personal injury claims

Balance of probabilitiesThe claimant must prove that, on the balance of probabilities, the defendant has been negligent or has breached their statutory duties. Proof on the balance of probabilities means proof that it is more likely than not. If the claimant’s evidence is equally consistent with the presence or absence of negligence or breach of the duty then the claim will fail.If the defendant has been convicted of an offence arising out of the alleged negligent act, this will create a rebuttable presumption that they committed that offence. In these circumstances the burden of proof is reversed. It is then for the defendant to prove that, on the balance of probabilities, there was no negligence. Convictions such as this arise with particular frequency in relation to road traffic accidents. See: Proving negligence—Relevant motoring convictions.Inference of carelessnessThe court is able to draw reasonable inferences from the known facts. This is achieved by assessing the evidence in order to determine whether it amounts to evidence of negligence against the defendant.Important points to...

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Particulars of claim for an accident which occurred while on a boating excursion abroad

Particulars of claim for an accident which occurred while on a boating excursion abroad In the County Court at [insert] Claim No. [insert number] Between A        Claimant and B        Defendant _____________________ Particulars of claim _____________________ 1 At all material times the Defendant carried on business as a tour operator supplying package holidays and excursions to consumers. 2 On a date now unknown to him the Claimant booked a package holiday in Bulgaria with the Defendant. 3 At a welcome meeting held shortly after they arrived at the hotel the Defendant’s representative offered holidaymakers the option of booking a number of excursions, including a boat party, which was to take place on 3 August 2014. 4 The party duly booked four excursions, including the boat trip, and paid the Defendant’s representative for them. 5 At no point did any person suggest to the Claimant that the said excursion was to be provided by any entity other than the Defendant. 6 As a result of the matters pleaded...

Claim against an uninsured driver joining the Motor Insurance Bureau as second defendant

Claim against an uninsured driver joining the Motor Insurance Bureau as second defendant IN THE [INSERT NAME OF COURT] Claim no.                   Parties AB        Claimant and (1) C D First Defendant (2) MOTOR INSURERS’ BUREAU (acting through its agent X Y INSURANCE PLC)        Second Defendants ______________________________ PARTICULARS OF CLAIM ______________________________ 1 At all material times the First Defendant was the driver of a vehicle [description], [registration] (“the vehicle”), and the Claimant was a passenger therein. 2 The Second Defendant (hereinafter “MIB”) is a company limited by guarantee under the Companies’ Acts. Pursuant to an Agreement with the Secretary of State dated 3 July 2015 (hereinafter “the Agreement”), MIB provides compensation in certain circumstances to persons suffering injury or damage as a result of the negligence of the uninsured motorist. 3 The Claimant has used all reasonable endeavours to ascertain the identity and liability of an insurer for the First Defendant and, at the time of commencement of these proceedings, believes that the First Defendant...

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A sub-contractor carrying out piling works damaged underground utilities at the site. The main contractor thought it had located the utilities before starting the works, but had not. The employer commenced proceedings against the contractor, but has since learned of the sub-contractor’s involvement. Should the employer continue its claim against the contractor? Further, do you have any guidance on the principle res ipsa loquitur?

A sub-contractor carrying out piling works damaged underground utilities at the site. The main contractor thought it had located the utilities before starting the works, but had not. The employer commenced proceedings against the contractor, but has since learned of the sub-contractor’s involvement. Should the employer continue its claim against the contractor? Further, do you have any guidance on the principle res ipsa loquitur? For the purposes of this Q&A it is assumed that: • the employer owns, or has a proprietary interest in, the utilities that were damaged • the employer’s claim is for loss resulting from the physical damage to the utilities • the sub-contractor has not provided the employer with a collateral warranty, or entered into any contract with the employer Liability for the damage Two related issues arise from the potential claims against the contractor and/or sub-contractor. The first concerns what course of action the employer may adopt. The second concerns the matter of substantive liability for the damage—ie which party is...

In tort claims, what is the burden of proof and what is the test of causation? Is the burden satisfied where damage is very unlikely to have been caused by the defendant’s actions, but it is a less unlikely cause of the damage than defendant’s alternative suggested cause?

In tort claims, what is the burden of proof and what is the test of causation? Is the burden satisfied where damage is very unlikely to have been caused by the defendant’s actions, but it is a less unlikely cause of the damage than defendant’s alternative suggested cause? Burden of proof The claimant must prove that, on the balance of probabilities, the defendant has been negligent or has breached their statutory duties. Proof on the balance of probabilities means proof that it is more likely than not. If the claimant’s evidence is equally consistent with the presence or absence of negligence or breach of the duty then the claim will fail. If the defendant has been convicted of an offence arising out of the alleged negligent act, this will create a rebuttable presumption that they committed that offence. In these circumstances, the burden of proof is reversed. It is then for the defendant to prove that, on the balance of probabilities, there was no negligence. The court is...

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PI & Clinical Negligence weekly highlights—23 June 2022

This week’s edition of PI & Clinical Negligence weekly highlights includes a news analysis on a gas explosion and the engagement of res ipsa loquitur. We also have an analysis on actionable damage in a mesothelioma case. In addition, we have our usual round-up of other key cases and news and New Law Journal articles of interest.

Explosions and res ipsa loquitur—when does it apply? (Shepherd v Northern Gas Networks Ltd)

PI & Clinical Negligence analysis: This case concerned a gas explosion in Sunderland in 2017, which destroyed two residential properties and caused significant personal injury. The claimant was, the court observed, ‘truly fortunate to survive this horrific incident’. It was agreed between the parties that the direct cause was corrosion damage to the one-inch diameter steel service pipe situated below the soil surface. The service pipe ran from the iron mains pipe to the internal installations. This allowed gas to escape and to accumulate within the property, eventually being ignited by the unwitting claimant. Written by Harry Lambert at Crown Office Chambers.