In such a situation the court may require to weigh up the circumstantial evidence and decide whether, taking all of that evidence into account, it can draw an inference or conclusion as to what happened and whether, on balance of probabilities the defender was at fault. This was seen some years ago in an accident where a delivery driver in the highlands skidded on black ice, lost control of his van and collided with a tree, suffering fatal injuries.
The driver had been returning after an early morning delivery to a remote town in the West Highlands at about 6.30am. A passing driver some time later noticed his van in a wooded area off the road where it had hit a tree. The section of road leading up to the accident scene had a sweeping bend and was covered in thick black ice.
The previous evening electronic ice sensors close to the scene showed a "red alert" for a high risk of black ice and the local authority command centre received and passed on the alert. It was however shown that the local site gritting crew although alerted to go out on call had not responded.
The surviving relatives of the driver were represented at a Fatal Accident Inquiry and later raised a personal injury action for damages.
Who has to prove the case?
There was no witness evidence available of how the van was being driven, its approach speed or why it crashed. It was accepted by the defender however that in the absence of any contrary explanation for the skidding which did not suggest failure by the van driver (such as excessive speed) it was for the defender to show that despite the presence of untreated black ice they were not at fault. The bereaved relatives received substantial damages awards.
Accident lawyers and their clients, whether pursuer or defender should not be discouraged by the absence of direct eye witness evidence supporting their version of events, since the Court will readily consider the surrounding circumstances in an effort to determine issues in personal injury cases.