#10454 - Road Traffic Accidents - Personal Injury and Clinical Negligence

ROAD TRAFFIC ACCIDENTS

CASE ANALYSIS

Common law negligence: the claimant will need to show:

• Duty of care – one road user to another (Donoghue v Stevenson)

  • Legal and factual basis

  • Standard of care – that of the reasonable careful driver (Nettleship v Weston)

• Breach of duty such as

  • Driving too fast

  • Driving without paying attention

  • Driving whilst tired

  • Failure to maintain the vehicle

  • Relevant criminal convictions? See p. 27

    • Vehicle maintenance

    • Poor driving – speeding, dangerous driving, careless driving

    • Influence of alcohol or drugs

    • Use of mobile phones

    • Wearing of seat belts and child restraints

    • Wearing of safety helmets

  • Breaches of Highway Code?

  • Res ipsa loquitur – burden of proof remains on the claimant throughout but applies where

    • Incident would not have occurred without negligence AND

    • Whatever inflicted or caused the damage was under the sole management and control of the defendant

• Causation

• Reasonable foreseeability

• Consider contributory negligence – p. 30

Possible parties

• Drivers

• Passengers

• Pedestrians

• Driver’s insurer

• Driver’s employer (vicarious liability)

• Motor Insurers’ Bureau (if defendant is uninsured/unidentified)

• Highway Authority (where poor road surface/inadequate)

Early action – liability

• Proof of evidence covering all basic facts from driver and other witnesses

• Request documents from Defendant and Client (including vehicle’s MOT certificate, photographs of crash site, damaged vehicle etc. and Police Accident Report)

• Other witnesses

• Advise client on law, procedure and timescales

• Case analysis

• Visit site – carry out damage assessment by mechanic

• Highway Code

• Relevant previous convictions?

• Is the insurance policy valid?

• Strategy for bringing/defending claim and estimate cost (provisioning)

POLICE ACCIDENT REPORTS

See reports in file. BE SPECIFIC ENOUGH about the details in the police accident report.

MOTOR INSURERS’ BUREAU, SS. 151 AND 152 ROAD TRAFFIC ACT 1988

Insurer’s grounds to avoid paying out insurance claims

• Insurers normally insert a clause in the insurance contract allowing them to initiate/defend proceedings in the name of the insured – this is called subrogation

• Sometimes the defendant will have insurance, but the insurer has grounds to avoid it if:

  • Defendant has breached the terms, such as

    • Driving drunk

    • Failure to disclose previous driving offences OR

  • The driver of the vehicle was not insured to drive it, such as

    • Family/friend of policy holder drove, with/without permission

• BUT the claimant should NOT be dissuaded from issuing a claim as s, 151 RTA 1998 will oblige the insurance company to pay out on the judgment to the claimant if

  • notice of the proceedings is given to the insurer before or within 7 days of commencement of the proceedings AND

  • the driver is identifiable

• Under s. 151(4) there is an exception in relation to third parties who were

  • willing passengers in a vehicle they knew or

  • had reason to believe had been stolen

• Under s. 154, where an accident has resulted in personal injury, all drivers involved must supply details of their insurance to others involved in the accident

  • It is a criminal offence to refuse or to give false information

The Untraced Drivers Agreement 2003

• This applies where:

  • The death of, or bodily injury to, a person or damage to property of a person has been caused by, or arisen out of, the use of a motor vehicle on a road or other public place in Great Britain AND

  • The event giving rise to the death, bodily injury or damage to property occurred on or after 14 February 2003 AND

  • The death, bodily injury or damage to property occurred in circumstances giving rise to liability of a kind which is required to be covered by a policy of insurance

• Claimant must make an application in writing to the MIB signed by applicant/solicitor

  • Must be within 2 years

  • Must prove negligence

  • Must have reported event to the police

  • If he/she/solicitor does not sign, the MIB can refuse to accept it – clause 4(2)

• MIB must only make an award if satisfied, on the balance of probabilities, that the damage was caused in such circumstances that the unidentified person would (if he had been identified) have been held liable to pay damages

• Where MIB decides to make an award, it shall pay it within 14 days of written confirmation from the claimant that he accepts the award

• MIB shall award a sum equivalent to the amount which would have been awarded to the claimant for general and special damages if the claimant had brought successful proceedings against the unidentified person

• MIB adopts the same method of calculation of damages as the court – clause 8

• Exclusions apply where:

  • The person suffering death, injury or damage was voluntarily allowing himself to be carried in the vehicle and before the commencement of his journey in the vehicle (or after such commencement if he could reasonably be expected to have alighted from the vehicle) he knew or ought to have known that the vehicle:

    • Had been stolen or unlawfully taken OR

    • Was being used without insurance OR

    • Was being used in the course or furtherance of crime OR

    • Was being used as a means of escape from or avoidance of lawful apprehension

  • The property which has been damaged was insured and the applicant has recovered the full amount of his loss from the insurer

  • The claim is for damages to a vehicle and at the time that vehicle was uninsured

    • This prevents an applicant benefiting from the 2003 Agreement when his own vehicle was being driven unlawfully

• Requirements

  • Normal limitation periods in the limitation Act 1980 apply

  • The claimant must have reported event to the police no later than – clause 4.3(c):

    • Claims for death or bodily injury alone – 14 days after the event occurred

    • Claims for property damage – 5 days after the event occurred

Car stolen at the time of the incident

• If driver was arrested and charge - sue the thief

• S. 151 and 152 still apply even though this driver is not covered at all – must give notice

• Insurer liable regarding compulsory risks – p. 31

Claims against a third party e.g. mechanics

• Contribution/indemnity – fail to service with reasonable care and skill – s. 13 SGSA 1982

• Further disclosure? CPR 31.16 allows us to make these sorts of requests

  • Original invoice and receipts, reminders for payment

  • Police Accident Report

  • Service checklist, entry in daybook

  • Any evidence relating to ‘congestion’

If the driver is uninsured – The Uninsured Drivers Agreement 1999

• The MIB is obliged to satisfy any judgment obtained against the defendant which remains unsatisfied, provided that the claimant complies with the Agreement

• MIB does not have to wait until judgment is obtained to make an application, so it makes sense to apply to MIB prior to commencement of proceedings

• Application is made by MIB’s standard form (must be signed by the claimant or his solicitor) together with the supporting documentation

• If MIB does not accept the defendant was negligent, the claimant can commence proceedings against the defendant, naming MIB as the second defendant

• The Claimant must:

  • Take all reasonable steps to obtain judgment against every person who may be liable (including vicariously liable) – clause 14.1(a) – sue the defendant

  • Obtain insurance details – clause 13 - as soon as reasonably practicable:

    • Demand the insurance particulars of the Defendant as specified in s. 154

    • Where defendant refuses, claimant must have complained to police officer

    • Use all reasonable endeavours to obtain name, address and registered keeper of the vehicle

  • Notice – where claimant issues proceedings, must give MIB notice of this in writing, by fax/recorded post (registered or recorded delivery only), to be received by MIB no later than 14 days after commencement – clause 9.1 – with the following:

    • Completed application form and other documents required by clause 7.1

    • A copy of the sealed claim form

    • A copy of any relevant insurance policy covering the claimant

    • Copies of all relevant correspondence in possession of claimant/solicitor

    • A copy of the particulars of claim

    • A copy of all other documents required by the rules of procedure to be served on the defendant (although not necessary to enclos response pack)

    • Such other information relevant as the MIB may reasonably require

  • MIB must also be notified under clause 10 and 11 within 7 days of:

    • Service of proceedings

    • Filing of a defence

    • Amendment of particulars of claim

    • Setting down for trial

    • Notification of trial date received

  • If the...