How Judges Think; Predicting Success In Personal Injury Cases
The decision of the High Court on 11 March 2021 in the case of Vincent v Walker provides a useful insight into how Judges think and why personal injury claims are won or lost. Here, a pedestrian was knocked down whilst walking across a pedestrian crossing. It was night time, and the Claimant was wearing dark clothing. The crossing was displaying green to oncoming traffic. It was a 50 mph speed zone. The pedestrian did not look properly before crossing the road. The Judge found as a fact (after considering expert collision reconstruction evidence) that the driver did nothing wrong. His speed was well within the limit and his response/reaction time was reasonable.
Here, the Judge was duty bound to follow the evidence and establish the facts, drawing appropriate conclusions from the evidence of the witnesses and experts.
Sadly for the above Claimant, this is one of those rare cases (in my experience) where a pedestrian is knocked down by a driver but fails to recover any compensation.
It is a vital part of what we as personal injury lawyers do to predict, at the outcome of a case/ as quickly as possible, what a Judge is likely to make of the evidence at Trial. Experience tells us that relatively few personal injury cases end up in front of a Judge but we, as lawyers, are taught to “Think Trial from Day 1”. What is likely to determine success or failure?
One of our recently settled cases illustrates this point quite effectively. Our motorcyclist client sustained life changing injuries when he fell off his motorbike after a turning car driver pulled out into his path. The facts were in dispute but, on day one, by our client’s hospital bed, we advised the rider that if he was “there to be seen and was not riding like a bat out of Hell” then he should win the case. Pleasingly, this is exactly what happened, and we were able to settle the case on excellent terms shortly before Trial. The two collision reconstruction experts agreed that our client was most likely “there to be seen” when the driver decided to make her turn and that his approach speed was much lower than originally estimated by the Police (who had got their calculations “egregiously wrong”).
When we are assessing prospects of success, we try to put ourselves in the shoes of the Judge. We try to look objectively at the evidence and what is likely to tip the balance towards winning a case or a key issue. By way of example, we had a case some years ago in which a surgeon said that he gave “grim” advice to our client about the realities of very challenging and risky surgery. Our client’s diary was the key evidence; the “clincher”, one might say. His diary entry for that day was; “Saw Dr X…felt much better about things”. That suggested that the Dr hadn’t advised of the risks and had given a rosy or unrealistic view of prospects of a successful outcome.General, George Ide, News, Personal Injury Blog