Claims for property damage that are contested in court

Contributed by ChristianFoyle and current to 27 July 2018

Court proceedings are quite often complicated and may cause much anxiety. If a person has to go to court to prove a claim, they ought to consider carefully instructing a lawyer who has the experience to handle the case. This is especially so if the other party has a lawyer. If a claimant has carefully followed the steps set out above, they would only need to instruct a lawyer to appear in court for them so the fees would not be so extensive. It is recommended that the lawyer be asked what their costs would be.

Liability and court procedure for property damage claims

Claims for motor vehicle property damage will usually be dealt with in the Magistrates Court. Where the matter in dispute is less than $10,000 they will usually come under the minor cases procedure contained in Part 4 of the Magistrates Court Act 2004 (WA). Disputes under this procedure are dealt with in a private and informal manner.

Agents, including lawyers, may not represent parties unless the Court gives its approval. Only if the matter is not resolved privately by negotiation or mediation will the Court proceed to formally hear and determine the dispute.

Matters over $10,000.00 are dealt with under the general procedure in the Magistrates Court.

In any court proceedings involving a claim for damages as the result of car accident, evidence is given orally at the hearing by those people who are directly involved in the accident or who witnessed the accident. The drivers of each vehicle and their passengers can give evidence of what they saw and what they heard. Courts tend to give more weight to the evidence of independent witnesses to an accident (persons such as drivers of other vehicles in the immediate vicinity or pedestrians who may have been in the area at the time, who were not personally involved).

If any claim is made for damages the onus of proving that the other party was negligent

rests upon the person making the claim – that party must establish to the satisfaction of the court that the other party has been negligent.

The burden of proof is on the balance of probabilities. This means that the plaintiff will have to establish to the satisfaction of the court that it is more probable than not that the other party was negligent.

To make certain that a witness will attend the court, a witness summons (subpoena) should be issued as soon as the hearing date is known. It is best to have that summons served by a Magistrates Court Bailiff, as conduct money must be given to the witness before the summons becomes enforceable. In the witness summons the witness can be asked to bring any relevant documents with him or her to Court.

A very useful witness is often the police officer, if any, who attended the scene. A person can find out who the officer is (and also who the police believe is responsible for the accident) by applying for a police accident report (see above).

Frequently, as a result of a car accident, a police prosecution is commenced against one of the drivers concerned. These proceedings are quite separate from the civil proceedings where a party claims damages. In civil proceedings for damages the court looks at all the circumstances of the accident before deciding which party or parties are at fault, and can decide that both parties are at fault in varying degrees. Police prosecutions, on the other hand, solely concern the criminal liability of one party involved in the accident and the standard of proof is beyond a reasonable doubt, and a conviction, rather than damages, is the potential result.

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