Guide to RTA Liability. apii

Transcription

1 Guide to RTA Liability apii

2 CONTENTS Foreword Preface Association of Personal Injury Lawyers Table of Cases Table of Statutes Table of Statutory Instruments Table of European Materials v vii ix xxi xxxv xxxix xli Chapter 1 The Inddence of Road Traffic Accidents in Great Britain 1 How many accidents per year do we suffer? 1 Fatalities 1 Fatalities during the week 1 What time of day do accidents occur? 6 Drink and drugs 6 Recent statistics for Chapter 2 RTA Liability - General Principles 9 Introduction 9 Liability generally in RTA Claims 10 Factors when assessing liability 11 The Highway Code 11 Criminal convictions 12 The usual failings 13 Causation 13 Defences 14 Contributory negligence 14 Seatbelts 15 Alcohol/drugs 17 Drivers 17 Passengers who know the driver is drunk 17 Medical emergency 20 Ex turpi causa 21

3 xü APIL Guide to RTA Liability Chapter 3 Low Velocity Collisions 25 Introduction ZJ What is a low velocity collision (LVC)? 25 What is the LVC defence? 25 What is delta velocity? 26 Use of experts 26 Relevance of expert evidence in LVC cases 26 Applications for permission to rely on expert evidence 28 Forensic engineer/accident reconstruction experts 29 Factors affecting the likelihood of injury 30 Medical experts 31 The appropriate medical expert and his instruction 31 Semi-medical factors affecting the likelihood of injury 32 Preparation of lay witness evidence 33 No need to plead fraud 33 Chapter 4 Liability for Learner Drivers 35 Introduction 35 Learner driver requirements and prohibitions 35 Learner driver driving without a Supervisor 36 What duties are owed by a Supervisor? 36 What duties are owed by driving instructors? 39 What duties are owed by test examiners? 40 Chapter 5 Owners' Liability 43 Introduction 43 The owner as driver - the rebuttable presumption 43 Owner as a passenger - retention of control 45 Owner is not a passenger - driver a servant or agent 46 Owner not a passenger - driver on his own business 48 Owner not a passenger - taking the vehicle without the owner's consent 49 Owner not a passenger - family situations 49 Owner permitting driving and aware that the driver is uninsured 51 Occupiers' liability 52 Chapter 6 Passengers' Liability 53 Introduction 53 Duty owed to passengers 53 Passenger contributory negligence 54 Vehicle defects 54 Passenger allows himself to be carried in a dangerous way 55 Travelling with drunk drivers 55

4 Contents xiii Chapter 7 Driver's Liability: Speed and Braking 61 Introduction 61 Speed 61 Braking 64 Sudden braking 65 Skidding 67 Chapter 8 Driver's Liability: Overtaking 69 Introduction 69 Absolute prohibitions on overtaking 69 Overtaking a vehicle at a pedestrian crossing 70 Warnmgs about overtaking 70 Overtaking when passing side roads in urban areas 71 Overtaking where view of road hampered by dips in the road 72 General guidance on overtaking 72 Overtaking cyclists and horses 75 Cyclists 75 Horses 75 Overtaking large vehicles 76 Overtaking a line of stationary traffic and related situations 77 Being overtaken 80 Chapter 9 Driver's Liability: Turning and Side Roads 83 Introduction 83 The Highway Code 83 Emerging from a side road - the 'side road' rule 84 Impact with overtaking vehicles: 84 Impact with speeding vehicles on the main road 88 Anticipating side road drivers emerging 90 Turning off a main road 93 Chapter 10 Driver's Liability: Lighting Vehicles 95 Introduction 95 General Obligation to light a vehicle 95 Obligation to light a moving vehicle 95 Obligation to light a parked or stationary vehicle 98 Failure to use headlights 99 Malfunctioning lights or defect in vehicle 99 Dipped headlights 102 Fog lights 102 Driving within the limit of vision 104 Use of warning lamps 104 Use of lights as signals 107 Side lights and lighting of large vehicles 110

5 xiv APIL Guide to RTA Liability Street lighting 11' Chapter 11 Driver's Liability: Traffic Lights U3 Significance of traffic lights ' 13 Crossing against a red light H4 Crossing when lights are amber/changing 116 Crossing a green light 1' 6 Operation of traffic lights 118 Chapter 12 Driver's Liability: Road Signs 121 Introduction 121 The law on traffic signs 121 The case law 122 Failure to erect road signs 123 Wrongly positioned signs 127 Badly designed road signs 128 Faulty road signs 129 Failure to obey road signs 130 Chapter 13 Driver's Liability: Roundabouts 133 Introduction 133 The Highway Code (2007), rules Case law 135 Chapter 14 Pedal Cyclist's Liability 137 Introduction 137 The cyclist's vulnerability in relation to other road users 137 The Highway Code 137 Impact with car doors 138 Impacts with vehicles turning across his path 139 Impacts with vehicles emerging from a side road 139 Impacts with parked vehicles 140 Failure to wear a helmet 141 Grates and obstructions in the road 142 Chapter 15 Motorcyclist's Liability 143 Introduction 143 The usual failings 143 The Highway Code 145 Crash helmets 145 Speed 146 Overtaking 147 Passing slow or stationary vehicles or 'filtering' 147

6 Contents Overtaking on the lett U-turns Overall conclusion Chapter 16 Emergency Vehicles' Liability Introduction Statutes and regulations Cases involving emergency vehicles Standard of care Emergency vehicles and criminals Speed Duty of motorists to emergency vehicles Chapter 17 Pedestrians' Liability Introduction Rights and duties of pedestrians The Highway Code Crossing the road Traffic light crossings Pedestrian crossings Zebra crossings Pelican crossings Puffin crossings Toucan crossings School crossings Not using crossings Walking along the road Standing on the pavement Drunken pedestrians Children Apportionment of liability Pedestrian liability to motorists Chapter 18 Liability of Children and Schools Introduction The three main rules The Highway Code (2007) Children not found negligent Children found to have been negligent Contributory negligence Driver not at fault Can a parent be liable for a child running across the road? Children 'larking around' School's liability

7 xvi APIL Guide to RTA Liability Chapter 19 Local Authority Liability 191 Introduction 191 Public authorities and breach of duty 191 Highway maintenance and repair 193 Definitions 194 Highway 194 Highway authority 195 Failure to maintain 195 Section 41 - scope of the duty 196 Ice and snow 196 Flooding and mud 197 Reasonable foreseeability of danger 198 The 'one-inch' rule for pavements 198 Section 41 and road traffic accidents 199 The section 58 defence 200 Statutory undertakers: water, electricity, gas etc 201 Road layout and signs 202 Negligence 204 Nuisance 204 Contributory negligence of motorists 206 Chapter 20 Roadside Neighbours' Liability 207 Introduction 207 Basis of liability 207 Nuisance 207 Conduct 209 Whois liable? 210 Trees and natural growths 212 Snow and birds 214 Artificial structures 214 Dangers on premises 219 Dangerous activities on premises 220 Conclusion 222 Chapter 21 Liability for Injuries Caused by Animals in Road Traffic Accidents 223 Introduction 223 Common law liability 223 Negligence 223 Nuisance 224 The Animals Act Straying animals: sections 4 and Section 2 - keepers 226 Dangerous animals 226 Non dangerous animals 227 Section 2(2)(a) - 'the likelihood test' 227

8 Contents xvii The first limb 228 The second limb 228 Section 2(2)(b) - 'the characteristic test' 229 The link 230 Section 2(2)(c) - 'the knowledge test' 230 Statutory defences 231 Conclusion 231 Chapter 22 Liability for Spillages and Obstructions on the Highway 233 Introduction 233 Nuisance or negligence 234 Vehicles causing obstruction 235 Vehicles which have broken down 237 Whether the stationary vehicle was appropriately lit 237 Use of hazard lights 238 Whether the break-down in the carriageway was foreseeable 238 Combined factors 238 Parked vehicles 238 Manoeuvring vehicles 240 Other obstructions 241 Highway authority liability - spillages 241 The owner or Controller of the obstruction 242 Road works 242 Builder's skips 243 Chapter 23 Public Service Vehicle Liability 245 Introduction 245 No exclusion of liability allowed 245 The duty of the driver 246 Emergency braking 246 Pulling away precipitously 247 The Public Service Vehicles (Conduct of Drivers, Inspectors, Conductors and Passengers) Regulations Chapter 24 Road Traffic Accidents Abroad 251 Introduction 251 General rules on jurisdiction and forum 251 Accidents in Europe (EU states) 252 Domicile 252 The Fourth Motor Insurance Directive 253 The Fifth Motor Insurance Directive 254 Accidents outside the EU 256 The applicable law 257 Proving foreign law 258 Foreign limitation periods 258

9 xviü APIL Guide to RTA Liability Law applicable in foreign states 262 Chapter 25 The Insurer's Liability 265 Under a contract of insurance 265 The need for compulsory insurance 265 The required terms of the policy 266 Liability which an RTA policy is not required to cover 268 The exclusion of claims by employees 269 Bodies excluded from the requirement for RTA insurance 270 The insurance certificate 272 The insurer's contractual liability 273 Issuing proceedings against the insurer 274 The insurer's solvency 274 Definition of a motor vehicle 274 The definition of 'use or arising from the use' 276 The definition of 'road or other public place' 277 The criminal offence of 'no insurance' 279 Assault with a car 279 The excess under the policy 279 Insurer's liability under the Road Traffic Act Section 151 of the Road Traffic Act The insurer can avoid contractual liability 282 The MIDIS database of insurance certificates 283 The liability covered by section Interest and costs 286 All drivers are covered 286 Drivers with no driving licence are covered 286 Use inside or outside the terms of the RTA policy 286 Shared journey costs 288 The insurers right of indemnity from the blameworthy insured 288 Excluded liability. passengers with knowledge 289 The notice requirement 291 Cancellation 291 Non-disclosure 292 Chapter 26 The Motor Insurers' Bureau's Liability 293 The MIB's liability 293 The 1999 Uninsured Drivers' Agreement 293 European law and the 1999 Agreement 294 Privity of contract 295 Joinder of the MIB as a second defendant 296 Child claimants and claimants not of füll capacity (clause 3) 297 MIB's Obligation to satisfy compensation claims (clause 5) 297 The driver intended to cause härm (clause 5) 298 What liability is covered? RTA liability (clause 5) 299 Exclusion of employees injured at work 299

10 Contents xix Use of a motor vehicle 300 The driver cannot recover 301 Excluded vehicles (clause 6) 301 Subrogated and assigned claims (clause 6) 303 Exclusion by knowledge - the passenger exception 303 Use in furtherance of a crime (clause 6) 304 Constructive knowledge (clause 6.3) 305 Drink and drugs 306 Application form (clause 7) 306 Procedural conditions precedent to the MIB's liability 307 Service of proceedings 307 Method of service of notices 308 Notice of issue of relevant proceedings (clause 9) 309 Discontinue and reissue 310 Service of documents to accompany notice of issue (clause 9(2)) 311 Notice of service of proceedings (clause 10) 313 Notice of other Steps in the action (clause 11) 314 Providing other information (clause 11(2)) 315 Notice of intention to apply for judgment (clause 12) 316 Complying with section 154 of the RTA 1988 (clause 13) 316 Suing other potential defendants (clause 14) 317 Consenting to the MIB's application to join the action (clause 14) 317 Assignment of judgment and undertakings 317 Limitations on the MIB's liability for property damage (clause 16) 318 Deduction of sums received from Policyholders Protection Board (clause 17) 318 Reasoned replies and notifications of decisions by the MIB (clause 18) 318 Reference of disputes to the Secretary of State (clause 19) 319 Recovery (clause 20) 319 Apportionment of damages (clause 21) 320 Untraced Drivers' Agreement Index 321