LEVEL 4 - UNIT 3 THE LAW AND PRACTICE RELATING TO ROAD TRAFFIC ACCIDENTS SUGGESTED ANSWERS JANUARY 2015

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1 LEVEL 4 - UNIT 3 THE LAW AND PRACTICE RELATING TO ROAD TRAFFIC ACCIDENTS SUGGESTED ANSWERS JANUARY 2015 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2015 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. SECTION A 1. Although driving within the relevant speed limit is a legal requirement, driving in excess of the speed limit is not automatically deemed to be negligence. Instead, the court will take the allegation and supporting evidence into account when considering the issue of negligence and related issues such as contributory negligence. 2. There are several approaches to obtaining insurance details. A request for the details could be made to the police if they attended the accident scene, or a request made for the police accident report which should contain insurance details. A search of the Motor Insurers Database (by the Motor Insurers Bureau, if necessary) could be carried out against the driver s vehicle registration number. 3. A driver might be uninsured in a number of different situations, for example, where the vehicle has no type of insurance cover at all. If the vehicle is insured but the driver is not included on the policy as a named driver, s/he will be driving without insurance. The driver may have paperwork which appears to be valid insurance but the agreement will be void if the driver breached its terms such as driving under the influence of drugs, or omitting to declare required information or making a false statement on his/her application for insurance. The vehicle may be insured, but if the driver is driving without the policy holder s permission, for example because the vehicle is stolen, then the driver will not be insured. 4. Where an uninsured driver is driving an insured stolen vehicle, under s.151 of the Road Traffic Act 1988, the insurance company effectively provides cover to the extent that it is obliged to pay compensation awarded by a court judgment to someone injured by the driver s negligent driving, subject to receiving notice of proceedings being issued. Page 1 of 5

2 5. A car driver has a legal duty to a pedal cyclist as another road user and as someone whom the driver could reasonably expect to be affected by his/her driving. 6. There is no legal obligation to wear a cycle helmet. If wearing a helmet may have reduced or avoided the cyclist s injuries, Smith v Finch (2009) suggests that the cyclist may be contributorily negligent. 7. The Highway Code is a set of rules and guidance for road users. The Highway Code can be used as permissible evidence in court in relation to establishing liability, contributory negligence, a contribution or an indemnity. 8. (a) A success fee is a provision in a conditional fee agreement and represents the percentage increase on a solicitor s base costs (under the terms of the agreement). The success fee only becomes payable if the claim is successful. The success fee is paid from the client s damages/compensation on conclusion of a successful claim, but in personal injury claims the amount deductible is capped at 25% of the client s damages. 9. An oral hearing may be requested under the RTA Protocol where the parties have been unable to negotiate quantum by the conclusion of stage 2 of the protocol, and there are issues on which one or both parties wish to make representations before a judge. If a child s claim reaches a negotiated settlement at the conclusion of stage 2 of the protocol, it must still proceed to a stage 3 hearing before a judge to approve the settlement. 10. As the defendant has not beaten/bettered the claimant s final offer, the defendant will be penalised in costs for not accepting the offer, not bringing the claim to an earlier conclusion, and avoiding stage 3 costs. The costs penalties ordered will be interest on the claimant s damages awarded at a rate not to exceed 10% above the base rate (for some or all of the period from the first business day after the offer was sent as part of the court proceedings pack form), fixed costs of stage 3, interest on those fixed costs, again at a rate not to exceed 10% above the base rate, and an additional 10% of the claimant s damages. Page 2 of 5

3 Scenario 1 Questions SECTION B 1. (a) David Braithwaite owed Dominika Malena a duty of care as another road user; or because he could reasonably expect her to be affected by his driving. His driving will be measured against that of a reasonable person. A reasonable driver would not have jumped a red traffic light. David Braithwaite appears to have breached that duty of care by driving through red traffic lights when they were green for Dominika s direction of travel and gave her the right of way across the junction. 2. (a) Further evidence required in relation to Dominika s claim would include the police accident report as it may contain valuable information such as witness statements taken by the investigating police officer shortly after the incident. The report may also contain a diagram and/or photographs of the accident scene, which we also need, and measurements of relevant distances (such as the width of the junction). If there is insufficient information in the police accident report we should consider making a site inspection and preparing a locus report, or requesting that Dominika take photographs of the accident scene. Dominika needs to mark on photographs of the accident locus the direction of travel of each vehicle and the position of each vehicle immediately before impact. This should assist in supporting Dominika s written account of the incident. Independent witness statements may confirm her version of events. We will need to know the weather conditions at the time of the accident and the visibility of both vehicles as the accident occurred on a winter s evening when it was probably already dark. An engineer s report may corroborate the damage to Dominika s car as a result of the accident. The hospital/ambulance triage notes usually contain the patient s account of the accident. This, together with the police accident report should provide the nearest contemporaneous liability evidence. However, Dominika was unconscious before the ambulance arrived at the accident scene and when she arrived at the hospital, so it is not known if she recounted her experience of the accident to medical staff and if she did, how close in time to the accident this was. 3. (a) Where the Claimant contributes to his/her own misfortune through his/her partial negligence, the court will reduce compensation proportionate to the Claimant s blame. A court may find that Dominika was contributorily negligent in not wearing a seatbelt. If wearing a seatbelt would have reduced the severity of her injuries, her damages may be reduced by 15 percent. Alternatively, a reduction of 25 percent may apply if wearing a seatbelt would have avoided the injuries entirely: Froom v Butcher (1976). There will be no deduction if wearing a seatbelt would have made no difference to the nature and extent of her injuries. Page 3 of 5

4 Aldright s Insurers plc does not have legal standing to sue David Braithwaite for repayment of this sum; there is no contractual relationship between them and David Braithwaite does not owe the insurance company a duty of care. The insurance company can rely on a clause in the insurance contract which obliges Dominika to claim the sum from David Braithwaite on behalf of the insurance company. When Dominika s solicitors receive the sum claimed they must account to the insurance company. This is known as the doctrine of subrogation. It needs to be ensured that all heads of claim are included in the full and final settlement. 4. (a) The value of the claim and the fact that it relates to a road traffic accident means that it must be pursued under the RTA Protocol. Dominika s solicitors should send a claim notification form, electronically through the RTA portal, to David Braithwaite s insurers, setting out the accident circumstances and allegations of negligence. David Braithwaite should be sent a copy by first class post. David Braithwaite s insurance company must send an acknowledgement electronically the day after receiving the form, and it then has 15 business days to complete and return the Insurer Response section of the form. If the defendant insurer disputes liability, which includes alleging contributory negligence (but does not include alleging contributory negligence for not wearing a seatbelt), the claim will exit the RTA Protocol. We can (subject to compliance with other procedural rules) issue court proceedings on behalf of Dominika. When a claim exits the Protocol it will be subject to different fixed costs provisions depending on when and how it concludes (as indicated by Table 6B in Part III of CPR (Rule 45.29C)). 5. The facts indicate that the claim concluded in the RTA Protocol at the end of stage 2. For a settlement sum above 10,000 but below 25,000, the second (higher) tier of fixed costs applies (CPR Rule 45.18, Table 6). The applicable fixed costs are 200 for stage 1 and 600 for stage 2. Scenario 2 Questions 1. Terrence, as a pedestrian, is a road user and, therefore, owes duty of care to other road users. This includes Kash as a car driver. 2. (a) Kash should have been driving carefully as there was a risk of pedestrians, especially children, stepping unexpectedly into the road. This may be relevant if the teenagers are young teenagers. He did reduce his speed by braking a little because he recognised that the group of teenagers was quite large and the pavement was narrow. However, the fact that he was approaching a cinema and a zebra crossing suggests he should have reduced his speed further. Although he braked, the fact that the car skidded and the brakes squealed suggests that he was driving too fast at the approach to the zebra crossing. A court may find Kash primarily responsible for the accident. Page 4 of 5

5 Kash s account indicates that Terrence stepped onto the zebra crossing without first looking/checking/waiting for traffic to stop. Terrence did not give Kash the opportunity to stop before stepping onto the crossing. A court may find Terrence to be partly to blame for the accident, and reduce any damages/compensation awarded to him, proportionate to his degree of blame. However, much will depend on Terrence s age and whether the court considers he was mature enough to exercise this degree of care when crossing the road. 3. (a) Section 11 of the Civil Evidence Act 1968 provides that a relevant conviction can be used in evidence in a civil claim: Stupple v Royal London Insurance (1970). The burden of proof is on Kash to refute the relevance of the conviction. A conviction for driving without insurance is unlikely to assist Terrence s civil claim as it has no bearing on the standard of Kash s driving, and therefore does not provide evidence of negligent driving. 4. Section 38(7) of the Road Traffic Act 1988 provides that a breach of the Highway Code can be relied upon in court as evidence of a breach of duty of care. However, failure to observe the Highway Code is relevant but not conclusive evidence of negligence on the part of Kash. Relevant case e.g. Goad v Butcher (2011). 5. (a) Kash did not have a valid insurance policy at the time of the accident, therefore Terrence s solicitors are likely to pursue his claim through the Motor Insurers Bureau, a not-for-profit organisation, under its uninsured drivers scheme/agreement. They can make a paper application or forward notification through the RTA portal. If Terrence s claim succeeds and the court makes an order awarding him damages, the MIB will pay damages to Terrence. (c) Initially Kash would not have to pay Terrence any damages as the MIB will meet Terrence s claim. However, the MIB has the legal right to pursue an uninsured driver for recovery of its outlay. This means that the MIB may require Kash to refund its outlay. Kash will be named as first defendant on the court issue documents as the driver whose alleged negligence caused the accident. It is a requirement of the uninsured agreement/scheme that The Motor Insurers Bureau is joined to the proceedings as second defendant. Page 5 of 5

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