The importance of retaining evidence

legal updates

A Court is entitled to find “on the balance of probability”

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Some time ago we were asked to advise about a problem that had occurred when a car, driven by the firm’s own mechanic on test, had crashed, badly injuring the mechanic and other innocent motorists.

The road became blocked and the police were called as well as the emergency services.

The mechanic had no memory of the accident so was unable to shed light on the possible cause. As this happened in the days before forensic services were cut in the interests of cost saving for all but fatal mishaps, it had been possible to obtain a copy of a police report that gave several clues about the behaviour of the car in the immediate moments leading up to the disaster.

Of particular concern were marks recorded on the road surface at the scene and prior to the scene. In this particular case the matter was so serious that a specialised examination of these marks was warranted and a visit was made to the road in question.

After careful measurement of the remaining road marks (this took place several weeks later) and close examination of the wreck stored in a local garage, we were able to conclude that the most likely cause of loss of control was a rear tyre deflation. However we needed to know why it deflated and when. These answers were relevant to the question of the drivers competence, his input and that of the workshop who had serviced the car.

To take the investigation further, we had to examine the deflated tyre. It was with dismay therefore, that we learned that the potentially offending tyre had been thrown away. This mistake deprived us of the chance to see if the sidewall had collapsed or the tread had been punctured and by what. It might have revealed that the deflation was sudden and complete, a true “Blow-Out”, which would have provided a certain defence to any suggestion that the workshop or mechanic had damaged the tyre beforehand. Without the tyre it was not possible to convince a Court that the deflated tyre did not deflate as a consequence of the accident but was a probable cause of it.

Since in civil liability, a Court is entitled to find “on the balance of probability”, it was open to the Court in the absence of any convincing argument otherwise, to conclude that the driver had caused the accident and the deflation.

This outcome was in our view not merely unjust, but it affected both servicing garage (who’s insurance premiums soared) and the injured mechanic, who thereafter was viewed as a liability. It all could have turned out differently had the evidence been retained.

The lesson here is that ALL material should be retained, whether you are facing a major investigation or just a simple customer complaint about needless replacement of spark plugs. We recommend that ALL parts changed during a service should, were practical to do so, be placed in an oilproof bag or box and placed in the boot for the customer to see and dispose of as they choose. Taking a single digital photograph of it in the boot will also eliminate entirely any argument.

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Philip StricklandLegal AdvisorRead More by this author

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