This is a guest post courtesy of Perry J. Armitage, a Personal Injury Senior Litigator at McQuarrie, a law firm that provides comprehensive legal services throughout BC.
When injured in a car accident, it is always stressful. You try to focus on recovering from your injuries but at the same time are forced into dealing with the cost of treating your injuries, the repair or replacement of your damaged property, and possibly being off work.
In car accident injury cases the burden of proof is always on the injured party to prove the facts of the case before the claim can proceed or any thought can be given to an out-of-court settlement. However, when the other driver is drunk it can take on even more complexity.
#1 — Calling the Police
In general, whenever you are in an accident you should call the police. They will tell you if the incident requires their presence. Don’t make that determination on your own. If they do attend they’ll likely fill out a report, speak to any witnesses and determine if any police action (citations, arrests, roadside testing, warnings, etc) should be taken. The police report is always an important piece of documentation during a personal injury case. However, the importance of the report skyrockets when the other driver was drunk.
If you have any suspicion that the other driver was drunk, you should immediately call the police and look for and collect any and all witness information. Maybe the other driver was observed to be driving erratically, or you could smell alcohol on their breath, or they had open alcohol in the car with them, and so on. Both yourself and any witnesses should talk to the police about your suspicions and observations.
The police will speak with the driver and if they are also suspicious will test their sobriety. If they fail the test, the police report will include that fact and will go a long way in helping to prove they were at fault for the accident. Proof of their impairment doesn’t necessarily guarantee they will be found at fault but it will certainly help.
#2 — Gathering Evidence
The drunk driver could flee the scene of the accident if the police do not respond in a timely manner or you’re too injured to call the police. If the police cannot locate the other driver in a timely manner they may not present as drunk. In this situation try to gather other evidence to help determine that they were driving while intoxicated. Pictures, video and witness information will be invaluable.
Consulting with a lawyer will also be to your advantage. The other driver’s movements can be tracked. You may be able to secure security or traffic camera footage of them driving or behaving erratically before or after the accident. Your lawyer may also be able to compel production of documentation that shows the other driver has a history of drunk driving offenses.
Other examples of strong evidence include things like eyewitness testimony that the other driver was drinking before the accident or driving recklessly, that their eyes were bloodshot or they were slurring their words either before or while at the scene of the accident. What they say at the scene of the accident is also evidence that can be very useful. Making careful notes of the conversations that takes place at the scene is advised. Your lawyer can also obtain an order from the court compelling the police to release their notes, photographs and other information, such as charges laid or tickets issued.
If the drunk driver was at a bar and was continually served alcohol beyond the point of intoxication while those serving knew they would attempt to drive away afterward, the bar may be found partially at fault, if they did nothing to stop them. That will depend a lot on the evidence you can gather, as well as the applicable law in your jurisdiction. A lawyer can help you make that determination.
#3 — The Burden of Proof
If your injuries were caused by a drunk driver and you commence a personal injury civil lawsuit against them, a different standard of proof applies as compared to a criminal trial. A criminal trial requires a burden of proof that is “beyond a reasonable doubt” in order to convict, whereas in a civil matter the court must be satisfied on a “balance of probabilities”, a much easier threshold. In other words, in civil matters circumstantial evidence may be all you need to prove your claim is worthy and deserving of compensation.
Proving that the other party is liable for the accident is much easier if the evidence points to the defendant having been impaired while behind the wheel at the time of the accident. While evidence of impairment doesn’t guarantee liability will be found in your favour, it certainly increases the chances.
About the Author:
Perry Armitage is a Partner and Senior Personal Injury Litigator a McQuarrie, a law firm located in Surrey, British Columbia, but also serving the Greater Vancouver and Lower Mainland area. Perry has represented clients with examinations of discovery, pre-trial court applications, trials, and has defended personal injury matters which appeared before the Supreme Court of British Columbia, where his client was awarded $2 million dollars for personal injuries. He has also successfully assisted clients through negotiated settlements in instances where he was certain a fair settlement could be achieved without trial, and was recently awarded a $2.2 million dollar settlement as a result. Perry enjoys sharing his legal expertise with claimants who are going through the personal injury process in order to educate them and help them reach a fair settlement.
