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Whether you were a driver, passenger, pedestrian, motorcyle rider, bicycle rider or horse rider, you can claim compensation for your injuries.
Liability for road traffic accidents
Every road user has a duty of care to avoid causing any injury to others who it might reasonably be anticipated could be injured by their actions, or by their failure to act.
What is a 'road user'? This term includes:
Car drivers and their passengers.
Motorbike riders including their passengers.
People on bicycles.
Pedestrians.
Those owning property next to the road, such as bollards, signs and the actual highway.
On the basis of common law negligence, a road user may find themselves liable to somebody who has been injured, or their estate or dependents (if deceased). A highways authority may also find themselves liable, on the basis of negligence, and/or due to breach of a statutory duty.
The 'duty of care' is usually fairly obvious and not generally disputed. For example, the driver of a car has a duty not to cause an injury to their passengers or to other road users. There are also less obvious duties, such as a duty for drivers not to park somewhere that could constitute a danger, a duty for the highways authorities to keep highways in good repair, and a duty for pedestrians not to step out in front of cars!
So far as drivers are concerned, the standard of care required is that of an ordinary skilful driver. This standard of care is still required, even if the driver is a learner (Nettleship vs Weston [1971] 2 QB 691).
There is no right for a driver to assume that other road users will always exercise reasonable care and skill when using the road, but drivers not "bound to anticipate folly in all its forms" (London Passenger Transport Board v Upson [1949] Ac 1555).
The duty of care also does not give the claimant a guarantee of safety. In Stewart v Glaze [2009] EWHC 704 (QB). The Claimant in this instance stepped into the path of the Defendant's car without warning, and the Defendant was found not liable for his injuries. The judge in this instance remarked that it was important that the Court was not guided by '20:20 hindsight'.
Similarly, in Ahanonu v South East Kent Bus Company Limited [2008] EWCA Civ 274, the Claimant was trapped between a metal bollard and the Defendant's double decker bus. The Court of Appeal reversed the finding that the bus driver had been negligent, because (according to Lord Justice Laws), the judge had imposed a counsel of perfection on the bus driver, which distorted the nature of his duty – which was no more or less than a duty to take care.
In Smith v Co-operative Group Ltd & Another [2010] EWCA Civ 725, the Court of Appeal considered a case in which the Claimant was a 13 year old boy who had cycled out of a driveway across a pavement and in front of a lorry. Although the driver braked and swerved, he was not able to avoid the Claimant, but he admitted he had not sounded his horn. The judge, ignoring expert evidence, ruled against the Defendant although holding the Claimant 60% contributory negligent, holding that if the Defendant had sounded his horn the Claimant could have reacted by stopping/cycling out of the way. The Court of Appeal allowed the Defendant's appeal, again refusing to impose on drivers a standard of care amounting to a counsel of perfection.
Breach of duty of care
As to whether a breach of the duty of care has taken place will depend on the facts of each case. In each instance, it is for the Court to decide whether there has been a breach of duty to take reasonable care in relation to other road users. A personal injury lawyer will consider whether there has been a breach of duty by looking at relevant legislation and the Highway Code where relevant. The following are important considerations when considering whether a breach of duty has taken place:
Criminal convictions
If the Defendant has been convicted of a relevant criminal offence as part of the accident proceedings, this may help to establish a breach of duty of care. Similarly, if the Claimant has been convicted of a relevant criminal offence, this may help the Defendant's lawyer establish contributory negligence, or negate liability altogether. Convictions that arise from the accident can be found in the police accident report but not all will be relevant offences to civil proceedings. Relevant offences are those that relate to how the accident was caused, or relate to the quantification of damages.
An example of an offence that is not relevant would be where the Defendant was driving a car without insurance at the time of the accident. Although this is a criminal offence, it does not have a bearing on whether the driver breached the duty of care.
Some examples of offences that may be relevant include:
Wearing a safety helmet: Section 16 of the Road Traffic Act 1988 makes it an offence to ride a motorcycle without wearing a safety helmet. Sikhs who choose to wear a turban are exempt.
Illegal vehicle condition: Section 40 of the Road Traffic Act 1988 makes it an offence to use, cause or permit another to use a motor vehicle on a road when its condition is such that its use involves a danger of injury to any person. Under Section 41 of the same Act, a person who uses a motor vehicle, or causes or permits such a vehicle to be used on a road when the vehicle does not comply with regulations governing the construction and use of brakes, steering-gear or tyres, is guilty of an offence. Under current regulations, tyres must have a minimum tread depth of 1.6 millimetres across the central ¾ of the tread around the complete circumference of the tyre. A mix of radial and cross-ply tyres is prohibited, and tyres must be inflated to the correct pressure for the vehicle in question.
Speeding: Driving over the speed limit isn't in itself evidence of negligence (Quinn v Scott [1965] 2 All ER 588), just as driving under the speed limit doesn't negate a driver's liability (Richardson v Butcher [2010] EWHC 214 (QB)). Drivers are required by the Highway Code to adjust their driving to take into account the conditions and circumstances – for example, the presence of cyclists or motorcyclists, the likelihood of a pedestrian (especially a child) crossing over the road, the available light, the road layout, the weather conditions, the current traffic, and whether there are parked vehicles or other obstructions. Should a driver fail to take these factors into account and adjust their speed appropriately, they may be prosecuted for careless or dangerous driving.
Dangerous Driving: Section 2 of the Road Traffic Act 1988 makes it an offence to drive dangerously on a road or other public place. A person drives dangerously if the way they drive falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way, or driving the vehicle in its current state, would be dangerous.
Careless Driving: Section 3 of the Road Traffic Act makes it an offence to drive without due care and attention. A person will be judged as driving without due care and attention if the way that they drive falls below what would be expected of a competent and careful driver.
Failing to wear a seatbelt: Section 14 of the Road Traffic Act 1988 makes it an offence to drive or ride in a motor vehicle without wearing a seatbelt. The Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (SI 1993/176) require that drivers ensure seat belts are worn where available by all of their passengers under the age of 14 years. Section 15 of the Road Traffic Act 1988 requires drivers to ensure children are strapped into an appropriate child restraint. The Regulations apply to children under the age of 12 and under 1.35m in height.
Using a mobile phone: Section 41D of the Road Traffic Act 1988 makes it an offence to drive or supervise the driving of a motor vehicle while holding a mobile or other 'interactive communication device'. At the moment, using a hands free kit is permitted – but should an accident happen, there might still be a prosecution for either dangerous or careless driving.
Being under the influence: Ss 4 and 5 of the Road Traffic Act 1988 makes it an offence to drive, attempt to drive or be in charge of a vehicle on a road or other public place when they are unfit to do so due to drink or drugs, or having consumed so much alcohol that the proportion of it in their breath, blood or urine exceeds the prescribed limit (currently 35mcg per 100ml breath, 80mg per 100ml blood and 107mg per 100ml urine).
As well as considering any relevant criminal convictions, it is necessary to look at any breaches of the highway code. Such breaches don't always lead to criminal proceedings. Some, but not all, rules within the Highway Code (which can be identified from the use of the words 'must' or 'must not') are reflective of statutory requirements, and it is a breach of these which can result in criminal prosecution.
However, under Section 38(7) of the Road Traffic Act 1988, any breach of the Code can be used in the civil courts to establish breach of duty of care – regardless of whether it relates to a statutory requirement or not.
Breach of the Code alone doesn't create a presumption of negligence; rather, it is just one factor that the Court must consider when they are considering whether there has been a breach of duty or not (see Goad v Butcher & Another [2011] EWCA Civ 158 and Powell v Phillips [1972] 3 All ER 864; CA).
Res ipsa loquitur is a rule of evidence which means 'the thing speaks for itself'. It is a maxim which means that the facts of the case are sufficient proof in themselves. If the Claimant cannot show any evidence as to why or how the accident occurred, but can show that:
the accident is such that, in the ordinary course of events, it would not have occurred without negligence; and
whatever inflicted or caused the damage was under the sole management and control of the defendent,
then in such cases, if it appears more likely than not that the Defendant's duty lead to the accident, res ipsa loquitur enables the Court to reach the conclusion that the Claimant has successfully established a prima facie case against the Defendant. At this point, it is often said that the evidential burden of proof shifts over to the Defendant who will have to provide some explanation of the events which demonstrates that their actions were not negligent, or alternatively show that they exercised all reasonable care.
Use of res ipsa loquitur is uncommon as the Claimant will usually have evidence as to how the accident occurred. An example of a successful use of the maxim can be found inWiddowson v Newgate Meat Corporation & Others [1997] The Times, 4 December. The facts of the case are that the Claimant, who was suffering from a mental disorder,was walking beside a dual carriageway when they were hit by a van that was being driven by an employee of the Defendant company. The Claimant could not be considered a reliable witness and did not give evidence; nor did the driver. On considering evidence presented by a psychiatrist for the Claimant, the Court concluded that although the Claimant was suffering from a mental illness, they were not suicidal, nor were they a risk taker. It was 'pure surmise' that the Claimant lost his balance and fell in front of the van – 'surmise' meaning something that is supposed to be true without having evidence to confirm it. In the absence of any plausible explanation from the Defendants, a breach of duty was established.
NB: In Widdowson v Newgate Meat Corporation & Others it was an employee of the Defendant company that was driving the van. The doctrine of vicarious liability holds an employer liable for damage that is caused by the negligence of their employees whilst those employees are acting in the course of their employment. So, for example, if an employee is carrying out work for their employer and in the course of this, happens to be driving and causes an accident due to their negligence, the employer will be liable for the resulting damage to property or personal injury.
In the case of Ng Chun Pui & Others v Le Chuen Tat & Another [1988] RTR 298, the Claimant tried to use the maxim unsuccessfully – although this case provides a good understanding of the principles. In this case, a coach that was driven by one of the Defendants and owned by the other, left the road, crossing a grassy verge and colliding with a bus that was going in the other direction. One of the passengers on the bus was killed, and the driver of the bus together with some of the other passengers was injured. Since there was no defect with the coach, the Claimants could not provide any evidence as to how the accident happened, and chose instead to rely on res ipsa loquitur. The Court however accepted the explanation for the Defendants that the driver of the coach was reacting to another vehicle that had cut in front of him, forcing him to brake and swerve, and this reaction did not constitute a breach of duty of care. Of note, the vehicle the coach was avoiding was not traced.
It is necessary for the Claimant to prove that the breach of duty of care caused the loss and damage that they are complaining of. They will need to show that 'but for' the Defendant's breach, the injuries or damage would not have arisen. Challenges to causation include:
The accident could not have caused the injuries complained of: This challenge is becoming increasingly common, particularly by insurers where for example the damage to a vehicle is only a scratch or the personal injury is only whiplash (which produces no visible signs of injury). In fact, in some cases Defendants go so far as to accuse the Claimant of fabricating the claim. See Casey v Cartwright [2006] EWCA Civ 1280 andKearsley v Klarfield [2005] EWCA Civ 1510 for more details on how the Court has approached such claims.
The cause of the injury was due to the Claimant's own negligence: The Courts will often accept that both the Claimant's and Defendant's actions played some part in causation, and consequently, they apportion damages. In Whittle v Bennett [2006] EWCA 1538, the Defendant was driving their car over the speed limit and too close to the car in front. The Defendant's car collided with the Claimant's car and the Defendant was found to be negligent; however, it was the gross negligence of the Claimant that caused the accident, when they attempted to do a U-turn in the middle of a busy road.
The Claimant is under a duty to take care of their own safety and to take reasonable precautions against risks of injury that they are aware of, or should be aware of. Their own actions – or failure to act- may amount to a breach of duty of care, and consequently the Court may reach the conclusion that they are partly – or even solely – responsible for the accident, and the injuries/damage sustained.
Under Section 1(1) of the Law Reform (Contributory Negligence) Act 1945:
"Where any person who suffers damage as result partly of his own fault and partly of the fault of any other person or persons … 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 in responsibility for the damage".
So where the Defendant can show, on the balance of probabilities, that:
the Claimant was at fault; and
the fault was causative of the injury suffered; and
it would be just and equitable for the Claimant's damages to be reduced
the amount of damages that the Defendant has to pay will be reduced. The amount by which they are reduced is determined by the Court, looking at the relative causative potency of what each party has done, and their respective blameworthiness (see Eagle v Chambers [2003] EWCA Civ 1107).
There are a number of cases which establish precedents for apportioning damages in particular circumstances:
A motor cyclist failing to wear a crash helmet: In such cases, damages will be reduced by 15%, or if a helmet is worn but the helmet's chin strap is not fastened, they will be reduced by 10% (O'Connell v Jackson [1972] 1 QB 270; Capps v Miller [1989] 1 WLR 839).
A cyclist failing to wear a helmet: In Smith v Finch [2009] EWHC 53 QB, it was suggested that failure to wear a cycle helmet would amount to contributory negligence. However, there is no legal obligation for cyclists to wear helmets and there has not, to date, been a case where damages have been reduced as a result.
A pedestrian stepping in front of a car: In these cases damages are very rarely reduced by more than 50% due to the fault of the pedestrian. The only time this would happen is if the pedestrian stepped in front of the vehicle and there is no way that the driver could have anticipated this happening. If the pedestrian is a child, they will not be expected to show the same degree of care that could reasonably be expected of an adult. Children under 12 are rarely found to be negligent and very young children will never be held as negligent. The Court will take into consideration all circumstances however, including the conditions and whether the driver ought to be aware that pedestrians might step into the road. In Ehrari v Curry & Another [2006] EWCA Civ 120, the 13 year old Claimant was found to be 70% to blame for the accident that left them brain-damaged. The circumstances were that the Defendant was travelling at no more than 20mph when the Claimant stepped in front of their car without looking.
A driver or passenger failing to wear a seat belt: In these cases, damages are reduced by 25% where injury would not otherwise have happened, or 15% if the injuries sustained would be less severe (Froom v Butcher [1976] QC 286). The Court has shown reluctance to depart from these guidelines (see e.g Stanton v Collinson [2010] EWCA Civ 81).
A passenger gets into a vehicle knowing the driver is drunk: In such cases, damages will be reduced by 20% (Owens v Brimmel [1977] QB 859).
Where more than one of the above applies: for example, the Claimant gets into the car with a drunk driver (20% reduction in damages) and sits in the boot of a hatchback car (25% reduction) the Court will not simply add the reductions together. These were the facts ofGleeson v Court [2007] EWHC (QB) and in this case, the overall reduction was calculated at 30%.
Of course, where the reduction is in respect of a motor accident and the Claimant is covered by a comprehensive insurance policy, their insurer will cover them for any shortfall in what is recovered from the Defendant, irrespective of the fact that they are found to be partly negligent, and so a finding of contributory negligence is less detrimental. However, for claimants such as pedestrians and especially for children, there is rarely a policy of insurance in place to cover damages/injuries and a finding of contributory negligence will hit them a lot harder.
The Road Traffic Act 1988 – http://www.legislation.gov.uk/ukpga/1988/52/contents
The Highway Code (adapted version) – https://www.gov.uk/highway-code (NB: the printed version must be used for legal proceedings)
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