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

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1 LEVEL 4 - UNIT 3 THE LAW AND PRACTICE RELATING TO ROAD TRAFFIC ACCIDENTS SUGGESTED ANSWERS JUNE 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 June 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. Section 41 of the Highways Act 1980 imposes a non-delegable statutory duty on the Highway Authority to maintain highways maintainable at the public expense. 2. A road traffic accident claim with an estimated value below 25,000 will have started in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol), but the claim will only remain in the RTA Protocol if the defendant s representative admits liability. Where liability is denied, the claim will leave stage 1 of the RTA Protocol and proceed under the provisions of the Pre-Action Protocol for Personal Injury Claims. The claim should continue as at the conclusion of the defendant s three-month investigation into liability. 3. (a) Qualified one-way costs shifting (QOCS) applies to personal injury claims. If the claim fails, the claimant may not be obliged to pay the successful defendant s costs because the costs order is only enforceable by the defendant to the extent of the claimant s damages awarded, which amount to nothing in a failed claim. There are several disadvantages to QOCS from the claimants perspective. The QOCS rule does not cover the costs risk created for the claimant by a defendant s Part 36 offer. This means that if a claimant is awarded damages but fails to beat a defendant Part 36 offer, the defendant can enforce its costs order against the award of damages leaving the claimant with nothing. As the vast majority of cases involve defendant Part 36 offers, this tends to diminish the advantage to the claimant afforded by the QOCS rule. Therefore, claimants may need to take out after-the-event insurance to cover Page 1 of 6

2 the risk of not beating a defendant s Part 36 offer. There are also a number of exceptions where the QOCS rule does not apply. 4. The standard of care expected of a car driver when driving on the highway is that of an experienced, skilled and careful driver. The test to determine the standard of driving is objective and no allowance is made for the personal characteristics of the driver such as lack of experience in the case of a learner driver: Nettleship v Weston (1971). 5. When an allegation is made that a defect in a motor vehicle caused a road traffic accident, the vehicle s maintenance records e.g. MOT and/or service records should be obtained. These may indicate the condition of the vehicle at the time of the accident and thereby assist in corroborating or refuting the allegation. 6. Section 38(7) of the Road Traffic Act 1988 renders the Highway Code admissible in evidence in a court of law in relation to the issue of breach of duty of care in negligence. 7. (a) The doctrine of utmost good faith applies to certain contracts including an insurance policy/agreement. The applicant for an insurance policy must provide full and frank disclosure of relevant information (e.g. convictions, medical history). This may affect the insurer s risk assessment when determining whether or not to provide insurance to the individual. If it subsequently transpires that an individual failed to disclose relevant information on the application/proposal form, the insurer has the right to cancel the insurance policy or may refuse to indemnify any claim made against the policy. This would leave the individual uninsured. A claim against the individual may need to be pursued under the Motor Insurers Bureau (MIB) Uninsured Drivers Agreement. The MIB has the right to pursue the individual for repayment of damages it has paid in respect of the claim. 8. A novus actus interveniens is a (legal causation) defence comprising a negligent act, or omission to act, by a third party, which breaks the chain of causation between a defendant s original breach of duty of care (i.e. negligent act) and a claimant s subsequent harm. Generally, from the time of the break in the chain of causation, the original wrong-doer ceases to be liable for the claimant s injury and the third party may be held responsible for the claimant s suffering from that point onwards: Rouse v Squires (1973). 9. As the claim settles at stage 2 of the RTA Protocol for a sum in excess of 10,000, the higher tier fixed costs will apply comprising: Stage 1-200; Stage 2-600; plus VAT and permitted disbursements. Page 2 of 6

3 Scenario 1 SECTION B 1. The defendant driver owed a duty of care in law not to cause harm to other road users including motorcyclists such as Petra: Nettleship v Weston (1971). The defendant driver also owed Petra a duty of care on the facts of the case, as they indicate that Petra was sufficiently close to the defendant driver to have been affected by the driver s conduct, and to be in the zone of foreseeable physical harm. In other words, it was foreseeable that Petra was likely to be harmed by the defendant s action in failing to give way. 2. The court will not view a failure to comply with the Highway Code as automatic proof of negligence: Powell v Phillips (1972) or Goad v Butcher (2011). The court can consider the non-compliance as relevant evidence in relation to breach of duty of care but will weigh this evidence in the context of other evidence and facts in the case. 3. (a) Several facts may assist Petra in establishing a breach of duty of care on the part of the defendant driver. Petra was overtaking stationary traffic. This manoeuvre, also known as filtering, is permissible on a motorcycle (see the Highway Code, Rule 88). Petra was on the main road and, ostensibly, had the right of way over vehicles joining the road from side roads. The defendant car driver was emerging from a side road and, therefore, was under a duty to give way to vehicles already established on the dual carriageway. The driver did not do this and drove into collision with Petra s motorcycle. The driver, therefore, breached the duty of care owed to Petra. The defendant driver may seek to rely on several facts to dispute Petra s claim. By overtaking stationary traffic, rather than waiting in the queue of traffic, Petra effectively created an additional line of moving traffic which may not have been obvious to a driver seeking to emerge from a side road on the left. This difficulty was compounded by Petra driving on the wrong side of the road. Petra should have been alert to the risk of cars emerging from the side road. She did not appear to have been aware of this risk despite observing that both lanes of stationary traffic had left a gap at the junction of the A53 with the side road, Bank View. Petra s conduct created an additional hazard and, arguably, imposed an increased duty of care on her not to cause harm to other road users, particularly those emerging from the side road. In view of these facts Petra may be found to be contributorily negligent and a court may reduce her damages, perhaps by as much as 80%, to reflect her blame for the accident: Powell v Moody (1966). Section 1(1) of the Law Reform (Contributory Negligence) Act 1945, provides that if the claimant s conduct has contributed to his/her accident and injuries, a deduction can be made from any damages awarded to reflect the degree of the claimant s blame for the accident and injuries. 4. If it becomes necessary to issue court proceedings, the car driver can be named as a defendant on the claim form and particulars of claim, as he/she allegedly breached the duty of care owed to Petra by driving into her motorcycle while emerging from a side road. As Petra has a cause of action in the law of tort against the car driver, she also has a cause of Page 3 of 6

4 action against the driver s motor insurance company which can be named as an additional or alternative defendant under Regulation 3 of the European Communities (Right against Insurers) Regulations (a) In a hit and run incident where it proves impossible to identify either the driver or the car, there would be no named driver and no motor insurance company to sue. It would, therefore, be impossible to issue court proceedings, and it would not be possible or appropriate to pursue the claim through the RTA Protocol, which requires an identified defendant. In the absence of an identified driver, we would make an application, on behalf of Petra, under the Motor Insurers Bureau s Untraced Drivers Agreement This requires the MIB to consider applications for compensation from hit and run accident victims. For the application to be considered by the MIB, Petra must meet several conditions including the following: she must have reported the incident to the police within 5 days in respect of property damaged in the accident, such as her motorcycle which was written off, and personal injuries must be reported to the police within 14 days of the incident. Petra must have co-operated with the police in their investigation of the incident and provide a police incident/log number on the MIB application form. Petra would have three years from the date of the incident to make an application to the MIB for a personal injuries claim (and six years for a property damage claim). In reality, it is unlikely that Petra would be able to claim damages for her motorcycle if she received reimbursement for this loss from her insurance company. Reimbursement would be likely as she had taken out comprehensive insurance cover for the motorcycle. Scenario 2 1. (a) Section 154 of the Road Traffic Act 1988 provides that a driver involved in a road traffic accident resulting in personal injuries must provide current motor insurance details to the other people involved in the accident. Therefore, Samantha Smith is obliged to provide her insurance details. We could phone her, on the mobile number she provided, to request these details. If this approach is not successful, as we have the registration number of Samantha Smith s car, we can carry out a search of the Motor Insurers Database (a MID search) against the vehicle s registration number. The database comprises a central record of current motor insurance policies. As the database is administered by the MIB, we could ask the MIB to carry out the search. 2. To assess liability evidence we should carry out a site inspection, if possible, and prepare a locus report or obtain photographs of the locus, and ask Leonora to mark the position of the vehicles on the road immediately before impact. An engineer s inspection report of Leonora s car should indicate the damage to the vehicle and initial point of impact, which may corroborate her account of a rear-end shunt. We should also obtain a witness statement from Denzel Mktabe, the driver in front of Leonora Rudin, who may report hearing two impacts - the first from the car behind Leonora Rudin and the second when her car was shunted into the back of his car - but only feeling one impact. He may also have seen Page 4 of 6

5 (in the rear view mirror) Leonora s car stationary behind his car before the incident. We should check the weather conditions and visibility on the relevant date and at the relevant time. All this would assist in establishing a claim against Samantha Smith. Although liability for rear-end shunts is usually straightforward to prove, we should check if Charlie was travelling in a child car seat appropriate for his age/height. If he was not then this may give rise to an allegation of negligence against Leonora, as she had responsibility to ensure Charlie was travelling in an appropriate child restraint. 3. The significance of Charlie s fractured ribs relates to factual causation in negligence. Charlie s medical evidence must prove that his injuries were caused by Samantha Smith s negligent driving. This is known as the but for test: Barnett v Chelsea and Kensington Management Hospital Committee (1969) / Whittle v Bennett (2006). The test can be applied by asking, would Charlie have suffered fractured ribs but for Samantha Smith s negligent driving? The answer is probably yes he probably would (as his medical records indicate he sustained this injury a week before the road traffic accident). Therefore, Charlie is unlikely to recover damages for pain and suffering from the fractured ribs unless the medical evidence establishes that Charlie suffered additional fractured ribs in the road traffic accident, or that the road traffic accident made the original rib fractures worse. 4. (a) To progress Charlie s claim we will send the medical report to his grandmother, as his litigation friend, requesting authority to disclose it to Aldrite Insurance. We will also send updated details of special damages to the litigation friend and request authority to make a quantum offer to seek to settle the claim. Subject to instructions, we will disclose the medical report and updated specials details to the defendant insurers as part of the completed Stage 2 Settlement Pack, under the RTA Protocol. In the pack we will indicate a suggested settlement sum. Aldrite Insurance will have 15 days to respond to the Settlement Pack by either accepting the settlement offer or by making a counter offer. If the latter, both parties have a further 20 days to negotiate settlement and this period can be extended by agreement. This question relates to legal causation in negligence, otherwise known as remoteness of damage/loss. For Leonora to establish a claim for missing the audition and, in her view, the offer of the lead character, she must prove that this loss is of a type which is a reasonable foreseeable result of Samantha Smith s breach of duty in negligence: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound (No 1) (1961). The courts may apply a wide or narrow interpretation of type of damage. Even on a wide interpretation, these are not the types of damage which are reasonably foreseeable from Samantha Smith s negligent driving. 5. A claim on behalf of a child must proceed to a court hearing for determination of quantum, if not agreed, or for an agreed settlement to be approved. Therefore the claim will progress to Stage 3 of the RTA Protocol. If the sum awarded by the court or agreed between parties is at or below 10,000, the lower tier of the RTA Protocol fixed costs will apply and Aldrite Insurance will have paid the following sums: Stage 1-200; Stage 2-300; Stage (hearing - plus advocate s fee - 250). Page 5 of 6

6 Alternatively, if the claim settles for a sum above 10,000, the higher tier of RTA Protocol fixed costs will apply as follows: Stage 1-200; Stage 2 600; Stage3 500 (hearing plus advocate s fee 250). Additionally, the insurers will have paid counsel s fee for written advice on quantum - 150; VAT and disbursements e.g. cost of medical report/court issue fee. Page 6 of 6

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