Onus of Proof on Pursuer
We all know that it is for the Pursuer to prove his or her case. Most cases involve an assessment of the strengths and weaknesses of both parties’ positions in order to reach a view on whether or not a case should be defended to Proof or settled on whatever basis.
A straightforward road traffic accident demonstrated graphically that a Court simply not disbelieving a Pursuer isn’t necessarily sufficient for the Pursuer to succeed.
We acted for a van driver who was in collision with a car driver. The car collided with the rear of the van at a roundabout.
The Pursuer, the car driver, claimed that the Defender (the van driver) had approached the roundabout and partially crossed the give way lines when another vehicle came round the roundabout resulting in the Defender reversing back into the Pursuer’s vehicle. The Defender maintained that he had simply been sitting stationary waiting to enter the roundabout when the Pursuer drove into the rear of his van.
The only two witnesses were the two drivers. Vehicle damage was obviously neutral, consistent with either version of events.
The case went to Proof and the Sheriff held that both drivers appeared to him to be credible and reliable having maintained their respective versions of events despite thorough cross-examination.
On that basis he said he was therefore unable to choose between the two competing versions. The onus to prove fault lay on the Pursuer who had failed to discharge that onus and the Pursuer’s claim therefore failed. The Defender was absolved from any liability.
It is sometimes forgotten that a Court may simply be unable to distinguish between two competing versions and finds (in this case) both witnesses to be credible and reliable. The Pursuer’s case must therefore fail.