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Published : April 18, 2012 | Author : alrowaad
Category : Dubai laws | Total Views : 4744 | Rating :

  
alrowaad
Hassan Mohsen Elhais After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years. Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system. Specialising in the drafting of all statement of claim, memos and consultation with regards to all kind of litigations, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner.
 

Road Traffic Injury & Accidents

Being involved in a road traffic accident can leave you with anything from whiplash and bruising to serious head and spinal injuries. If you are unfortunate enough to be involved in a horrific road accident, which was not your fault, then you may be entitled for a personal injury compensation claim. If you were a party travelling in a taxi, or a bus then you may be entitled for a claim from an insurance company. These kinds of claims are commonly known as personal injury claim. The crux of the issue lies in claiming the compensation amount. One cannot overlook the emotional distress, or psychological harm Victim has gone through; however, it does boil down to the damages claimed and the gravity of harm suffered by victim. In this essay, we provide a brief overview of how courts procedures influence the compensation claimed and factors which may come into play whilst the proceedings.

A brief Analysis
According to the Art 282, 283 and 284 of the Federal Law No. 5 (Civil Transactions of 1985), road accidents causing personal injury will fall under tortuous liability. The damages are calculated based solely on the direct or indirect connection between the doer’s act and injury inflicted. The victim becomes entitled to all the damages/looses borne as a result of the accident which may include any damages to clothing, property, loss of earnings, moral and psychological harm.

The amount of compensation varies from case to case basis and it depends on several factors such as:
- Income of the victim and the amount he/she spent on supporting his family;
- How old was he/she at the time of accident;
- The limit of harm inflicted to the aggrieved person;
- The moral sufferings he/she faced;
- The amount he/she spent on the medical reports and treatment;

The judge will award damages to victim after taking these factors into account. The amount remains solely at his discretion. In order to recover compensation there needs to be an establishment of fault. Tortious liability consists of three elements: fault, damage and a causal link. Causation of event by itself is not sufficient to create legal liability. Proving existence of fault and damage will often held to entail presumption of causation link which may be rebutted if there is an intervention by a foreign element. Another way of establishing causation is through ‘but-for’ test. The ‘but-for’ test inquires ‘But for the defendant’s act, would the harm have occurred’? It asks was it ‘necessary’ for the defendant’s act to have occurred for the harm to have occurred. The causal link may be broken or presumption may be rebutted by an intervention of a foreign element such as a third party’s act, or victim’s contribution.

A question which often arises in claims for compensation based on acts which are also a subject matter of criminal proceedings is the extent of which the findings of the criminal court are binding on the Civil Court entertaining the claim. The position, which seems to have been uniformly held, is that a criminal judgment is binding on a Civil Court in the appropriate situations to the extent to which the Criminal Court has determined the facts as a necessary for the disposal of the Criminal Case. In cassation petition 163 of 1999, it was held that:

The binding effect of a criminal judgment is restricted to matters the determination of which was vital for supporting the judgment, such as the fault of the accused and the causation link between the fault and the damage”.

Conclusion
The concepts like negligence, duty of care and factual causation do not exist in the laws of UAE. However, the do exist in principle and are enforced regularly by the courts. One has to go through the complex court’s proceedings and findings to claim compensation—which of course is based solely at court’s discretion.

***************************
# “Any act which causes damage to another person either directly or indirectly entails obligating the doer to pay compensation. The damage shall be regarded as a direct if there is direct connection between the act and the damage.”

Authors contact info - articles The  author can be reached at: alrowaad@legalserviceindia.com




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