ROAD TRAFFIC ACCIDENTS

At trial, road traffic accident cases (RTAs) generally involve two or more road users providing opposite accounts of the accident. It is for the court to determine which of the drivers is/are at fault.

To establish liability for a road traffic accident, the basic principles of the tort of negligence apply. That is to say: a road user owes a duty of care to other road users who it is reasonably foreseeable will be affected by his road use, to drive with the care that a reasonably prudent driver would exercise in like circumstances; there must be a breach of that duty; and there must be proof of damage resulting from the breach. Some complete defences remain and damages may be reduced due to contributory negligence on the part of the claimant.

The duty of care owed will depend on the circumstances, but an inexperienced driver is held to the same standard as an experienced one. The Highway Code is highly persuasive as to what amounts to reasonable care and skill in particular circumstances, but is not determinative.

The usual causation principles and defences apply.

Where the claimant is partly responsible for the accident, damages will be reduced to reflect any such contribution to the accident, to a degree that the court thinks is just and equitable. Contributory negligence will not defeat the claim altogether.

Duty of care: The duty of care for road users is to drive with ordinary care or skill.

There is no lower standard for the inexperienced driver. In Nettleship v Weston [1971] 2 Q.B. 691, the defendant was a learner driver. It was held on appeal that the standard of care owed by any driver, whether a learner or not, is that of a driver of skill, experience and care, who is sound in mind and limb, eyesight and hearing and makes no errors of judgment and is free from infirmity.

It is of note, however, that in Mansfield v Weetabix Ltd [1998] 1 W.L.R. 1263, where the driver was suffering from a condition that impaired his ability to drive but which he was not aware of, the standard of care was held to be “what is expected of a reasonably competent driver in those particular circumstances”. Per Leggatt L.J., to apply an objective standard would have been to impose strict liability, which was not the law.

The Court of Appeal did not clearly explain how the case could be distinguished from Nettleship v Weston [1971] 2 Q.B. 691, except to say that the latter did not apply to cases where the driver is unaware he is subject to a disability.

The duty is not to be judged to the standard of the ideal, nor with liberal hindsight (see e.g. Stewart v Glaze [2009] EWHC 704 (QB); (2009) 153(16) S.J.L.B. 28 and Ahanonu v South East London and Kent Bus Co Ltd [2008] EWCA Civ 274; (2008) 105(5) L.S.G. 25.

Standard of care: The Highway Code provides a good starting point in determining what amounts to “ordinary care or skill” and therefore whether there has been a breach of duty of care. Indeed it is essential reading for all road users. That said the Code is more persuasive than determinative in proceedings.

Hence under s.38(7) Road Traffic Act 1988:

” A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts), be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings. “

This principle was confirmed in Wakeling v McDonagh [2007] EWHC 1201 (QB) where Judge Mackie QC held, “Any breach of the Highway Code is relevant but not determinative”, and in Goad v Butcher [2011] EWCA Civ 158 where, per Moore-Bick L.J., it was held that:

” A failure to observe the Highway Code might be evidence of negligence causing or contributing to a road traffic accident, but whether it was would depend very much on the circumstances in which the question was committed and who the claimant was. “

Breach Of Duty/Causes Of Accidents:

Motorists: Common causes of accidents include:

” You MUST NOT exceed the maximum speed limits for the road and your vehicle. The presence of street lights generally means that there is a 30 mph (48 km/h) speed limit unless otherwise specified. ” Rule 125 of the Highway Code goes on to state:

” The speed limit is the absolute maximum and does not mean it is safe to drive at that speed irrespective of conditions. Driving at speed too fast for the road and traffic conditions is dangerous. You should always reduce your speed when

  • the road layout or condition presents hazards, such as bends,
  • sharing the road with pedestrians, cyclists and horse riders, particularly children, and motorcyclists,
  • weather conditions make it safer to do so, and
  • driving at night as it is more difficult to see other road users. “

Again, however, speeding is relevant but not necessarily determinative (see Quinn v Scott [1965] 1 W.L.R. 1004 and Lamoon v Fry [2004] EWCA Civ 591)).

It is possible to be held liable for driving too slowly, although this is rare. In Ellis v Lokat & Doseley Motors Ltd [2006] Central London County Court, it was held that a driver was liable for a fatal accident because he had turned too slowly at the traffic lights.

A driver of a stationary vehicle can also be held liable for an accident (Houghton v Stannard [2003] EWHC 2666 (QB); Hughes v Guise Motors Ltd [2007] EWHC 2529 (QB); West v Wilkinson [2008] EWCA Civ 1005).

Emergency Service Drivers: The same standard and duty of care applies to emergency service drivers as any other road user. However, police drivers are not held liable for exceeding the speed limit (S (A Child) v Keyse [2001] EWCA Civ 715; [2001] Po. L.R. 169), although they must still drive at a speed that allows them to maintain reasonable control (Macleod v Receiver of the Metropolitan Police [1971] Crim. L.R. 364). Where an emergency service driver uses a siren, other road users are unlikely to succeed in any claim against them, as the siren should act as a warning.

Motorcyclists: The Motorcycling Manual provides guidance for motorcyclists. This states that motorcyclists must “always leave enough time and space to cope with what is ahead”, bearing in mind the road and traffic conditions at all times. It is generally accepted that motorcyclists require a greater stopping distance than cars (r.126 Highway Code).

Cyclists: Cyclists are frequently injured as a result of being struck by a car door opened without warning. It is a criminal offence under the Road Vehicles (Construction and Use) Regulations 1986/1078 reg.106 for any person “to open or cause or permit to be opened any door of a motor vehicle or trailer on a road so as to cause injury or danger to any person.” Such action will also usually give rise to liability in negligence. See also Clenshaw v Tanner [2002] EWHC 184 (QB) and Richards v Quinton.

Both motorcyclists and cyclists should be aware of the body of case law on overtaking queues of stationary traffic. There is a series of cases including Ringe v Eden Springs (see above) which deals with apportionment of blame in those situations and the high degree of care that is required from motorcyclists and cyclists who proceed to overtake stationary traffic (see also: Worsfold v Howe [1980] 1 W.L.R. 1175; Smith v Kempson [2011] EWHC 2680 (QB); [2012] R.T.R. 12; and Burton v Evitt [2011] EWCA Civ 1378).

Pedestrians: The Highway Code applies to pedestrians as well as motorists, and includes advice on how to use pavements, cross the road and make oneself visible by wearing bright, reflective clothing. Breach of these rules may be relevant but the courts generally regard vehicles as much more dangerous than pedestrians (Baker v Willoughby [1970] A.C. 467).

For an example of a driver not held negligent for a collision with a pedestrian, see Ahanonu v South East London and Kent Bus Co Ltd [2008] EWCA Civ 274; (2008) 105(5) L.S.G. 25. For a liable driver, see Osei-Antwi v South East London & Kent Bus Co Ltd [2010] EWCA Civ 132.

Contributory Negligence: Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

” Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the persons suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable, having regard to the Claimant’s share of the responsibility for the damage. “

This principle applies to all types of road traffic accidents. However, it is for the defendant to plead contributory negligence (Fookes v Slaytor [1978] 1 W.L.R. 1293). Equally, the burden of proof lies with the defendant where such allegations are made.

Common allegations include:

“Failure to wear a seatbelt” – See Froom v Butcher [1976] Q.B. 286 where it was held that no reduction was to be made if wearing a seatbelt would have made no difference to the injury occurring or its extent. See also Stanton v Collinson [2010] EWCA Civ 81; [2010] C.P. Rep. 27.

“Failure to wear a helmet” – All motorcyclists, moped and scooter riders, quad and trike riders, and their passengers, must wear helmets. Said helmets must conform to regulations and be fastened (Capps v Miller [1989] 1 W.L.R. 839). Cyclists are not legally obliged to wear helmets but not doing so may amount to contributory negligence.

“Failure to provide adequate restraint for a child” – Same principles apply as above (Hughes v Williams (Deceased) [2012] EWHC 1078 (QB); [2013] R.T.R. 3).

Notably, very young children cannot be contributorily negligent (Gough v Thorne [1966] 1 W.L.R. 1387) but their actions can be used to show that the defendant acted reasonably in the circumstances and thus should not be liable (Saleem v Drake [1993] P.I.Q.R. P129). Older children can be contributorily negligent (Phethean-Hubble v Coles [2012] EWCA Civ 349; [2012] R.T.R. 31).

Intoxication can result in contributory negligence but each case will turn on its own facts. In Lightfoot v Go-Ahead Group Plc [2011] EWHC 89 (QB); [2011] R.T.R. 27 McCombe J. held:

” It is necessary to look at what the Claimant did rather than at the explanation for what he did. That is, it is the Claimant’s act of walking onto the carriageway and into the path of the bus, rather than the drunken state in which the act was undertaken, that is relevant. “

Similarly passengers in a vehicle driven by a drunk driver can be held contributorily negligent if they were aware that the driver had consumed alcohol to such an extent that it was likely to impair his capacity to drive carefully (Owens v Brimmell [1977] Q.B. 859 and Malone v Rowan [1984] 3 All E.R. 402). Nonetheless, a passenger will not necessarily be negligent for failing to make enquiries of a driver as to his alcohol consumption (Booth v White [2003] EWCA Civ 1708; (2003) 147 S.J.L.B. 1367).

Causation And Defences: In RTA cases it is for the defendant to raise and show that despite his negligence, the accident would have happened in any event and there is therefore a compete defence to the claim.

A defendant may argue:

  • “The accident was inevitable” – that there was nothing that he could reasonably have done in circumstances to avoid the accident (Barry v Pugh [2005] EWHC 2555 (QB)).
  • “Agony of the moment” – that he acted as can reasonably be expected of someone in the agony of the moment of a difficult or dangerous situation (British School of Motoring Ltd v Simms [1971] 1 All E.R. 317).
  • “Act of God or medical emergency” – that there was a sudden and unforeseeable event or medical condition, which caused the accident. See Ryan v Youngs [1938] 1 All E.R. 522 where the defendant was not aware of any illness and a medical examination would not have disclosed a defect in comparison to Roberts v Ramsbottom [1980] 1 W.L.R. 823. Falling asleep on the other hand is no defence.
  • “Ex turpi causa” – that the claim is founded upon an immoral or illegal act, for example joy riding or driving under the influence of alcohol (Pitts v Hunt [1991] 1 Q.B. 24).

Low Velocity Claims: The courts are also seeing an increase in RTAs defended not on the basis that there was no breach of duty but on the basis that the breach could not have caused the injuries for which damages are claimed. This is particularly common in cases involving low velocity collisions (LVCs), for example where a vehicle travelling at a negligible speed collides with a stationary vehicle. Here a defendant may allege that the velocity of the collision was too low to have caused the injury (normally whiplash). In LVC cases, it is normally asserted that the speed of the colliding vehicle was less than 5mph.

Where a defendant in a LVC case seeks permission to rely on expert evidence as to causation, he must follow the procedure set out by the Court of Appeal in Casey v Cartwright [2006] EWCA Civ 1280; [2007] 2 All E.R. 78 per Dyson L.J.:

Within 3 months of receipt of the letter of claim, he must notify all other parties in writing that he considers this to be a LVC case and he intends to raise causation as an issue;

The issue should be expressly identified in the defence, supported in the usual way with a statement of truth; and

Within 21 days of serving that defence he should serve on the court and all other parties a witness statement which clearly identifies the grounds on which the issue is raised. This statement should deal with the defendant’s evidence relating to the issue, including the circumstances of the impact and any resultant damage.

If the court is satisfied that the issue has been properly identified and pleaded, it will usually give permission to the defendant for the claimant to be examined by a medical expert. If the court receives that report and is satisfied that the causation issue has a real prospect of success, then the court will generally give the defendant permission to rely on such evidence at trial.

LVC cases have assumed particular importance in the context of the new Qualified One-Way Costs Shifting scheme and s.57 of the Criminal Justice and Courts Act 2015, which provides that there will be an exception to the application of QOCS where, on the balance of probabilities, the claim was fundamentally dishonest. This puts extra emphasis on Claimant lawyers properly probing their clients’ claims. However, Defendant solicitors should of course remember that fraud must be specifically pleaded and it is not sufficient merely to put the Claimant to proof (see Hussain v Amin [2012] EWCA Civ 1456).

Insurance: Under s.143 of the Road Traffic Act 1988, a driver is compulsorily required to have insurance. The minimum level of cover is third party risk insurance. Where a negligent driver is uninsured and the accident took place after 1 October 1999, the Uninsured Drivers’ Agreement 1999 applies, enabling the Motor Insurers’ Bureau (MIB) to provide cover for the victim of the accident in the absence of insurance.

Where the owner or driver of a vehicle cannot be identified and the accident took place after 1 July 1996 but before 14 February 2003 an application can be made under the Untraced Drivers’ Agreement 1996. This provides cover for victims of hit and run or otherwise untraced drivers, subject to specified conditions, for a payment of compensation for personal injury only. For accidents after 14 February 2003 the Untraced Drivers’ Agreement 2003 applies.