Lorry Driver did enough to avoid road traffic accident with cyclist

In a recent case, Smith v Hammond, the Court of Appeal had to consider the liability and contributory negligence of a teenaged boy who had cycled into the road and collided with a lorry.  The boy made a personal injury claim against the lorry driver and the lorry driver made a personal injury counter-claim for injuries caused by the accident.

The boy was delivering newspapers in a built-up area with a 30 mph speed restriction.  To continue with his newspaper round, the boy had to cross the road.  He got on his bicycle and cycled straight across the road without looking.  The lorry driver braked sharply and swerved to try and avoid the collision.

The Judge found the accident had been caused by the lorry driver’s negligence, but the boy was 60% liable for the accident.  The Judge felt the lorry driver should have sounded his horn in warning as he had seen the boy cycling towards the road.

The lorry driver appealed on the basis that he did not think the boy would cycle straight into the road and it was too much to expect the lorry driver to sound his horn whilst swerving and emergency braking to try and avoid the collision.  The expert witness had given evidence that even if the lorry driver had sounded his horn at that stage, there would have been a small delay or 3 – 4 seconds before the boy responded, by which time he would already have cycled into the road.

The Judge rejected the evidence and relied on his own experience of reacting to a horn when driving.  The Judge found that the boy could not have reasonably foreseen that if he had cycled into the road and was hit by a lorry, that injury could be caused to the lorry driver.

The Court of Appeal found that whilst the Judge was not obliged to accept expert evidence, he had to have good grounds for not accepting it.  In perfect circumstances, the lorry driver would have sounded his horn, however, the duty on the lorry driver was not one of perfection but of reasonableness and braking and swerving to avoid the accident were reasonable actions.  The Court also found that the Judge had applied the wrong question and should have asked whether a teenaged boy would reasonably have foreseen injury to another road user if he cycled out into the path of a vehicle, including another cyclist.  Therefore, the boy was substantially to blame for the accident and the lorry driver’s appeal was successful.

The boy’s employer confirmed that if the lorry driver’s appeal was successful, it would accept liability and not seek to recover any damages from the boy.

Crash for Cash Car Accidents on the Increase

The Insurance Fraud Bureau estimates that around 30,000 crash for cash incidents were staged in 2009, costing insurers around £350 million.  Crash for cash incidents are where the fraudster brakes suddenly, usually using the handbrake so there are no warning lights, on a roundabout or clear road causing the car behind to rear end shunt them.  Then a claim is made for personal injury as it is generally accepted that the driver making the rear end shunt is to blame.  In some cases, claims have been made for passengers who were not in the car at the time of the incident.

Crash for cash incidents were largely confined to Liverpool, Blackburn, Manchester, Leeds, Birmingham and London.  Fraudsters staging these incidents tend to select drivers who are single parents or elderly and drivers of commercial vehicles.

Drivers can protect themselves by not admitting or accepting liability for the accident and taking photographs of the cars and the driver and any passengers in the other vehicle involved.  Mobile phone photographs are fine for this.  Draw a sketch of the road where the incident took place and the paths of the vehicles involved as soon as possible while your memory’s still fresh.  If the driver who caused the accident becomes abusive, phone and report the incident to the police.

Faulty Second Hand Tyres can cause Road Traffic Accidents

Trading Standards officers in Birmingham investigated a number of second hand tyre sellers and their findings raised concerns for road and vehicle safety.  Of the tyres inspected, 90% failed to meet minimum legal standards and 1 tyre offered for sale was found to be 17 years old.  Other problems included embedded nails, exposed cords and illegal tread depth.

Any vehicle owner thinking about buying second hand tyres should ensure that the tread depth is at least 2mm around the whole tyre and the original thread grooves can be seen.  Tyres should be inspected to ensure that they don’t contain any embedded items.  Potential purchasers should also be wary of any tyres with repaired punctures.

A report by TyreSafe revealed that more than 10% of drivers are now more likely to consider buying second hand tyres than a year ago.  Whilst second hand tyres may be seen as more affordable, they are not necessarily as safe as new tyres.  Buyers need to be fully confident they can safely fit the tyres themselves as well as inspect the tyres for safety before buying.

Health and Safety Fine increased after Avoidable Fatal Accident

Appeal judges raised a fine against Munro & Sons from £3,750 to £30,000 for breaches of health and safety law which resulted in an avoidable fatal accident.

The company were transporting a digger along an A road when the digger broke free from its restraints and slid off the back of the transporter, crushing the car behind, which resulted in the death of the car’s passenger. 

An investigation revealed that:-

• the parking brakes on the digger were defective;
• the two chains used to hold it were not strong enough as the digger weighed 30 tonnes and the chains had a braking strain of around 5 tonnes;
• there was no system in place to check the chains
• staff were not properly trained to deal with heavy loads.

Munro & Sons were also criticised for not appreciating that their actions contributed to the accident.  It was recommended that the rules on transportation of heavy goods are tightened and training in loading techniques is made compulsory for all heavy goods vehicle drivers.

Will not wearing a seat belt affect the level of accident compensation awarded for injuries following a road traffic accident?

A recent personal injury case acts as a reminder that the onus is on the defendant to show that wearing a seat belt, when the injured party was not wearing a seat belt at the time of the accident, would have reduced injury.  If it can be shown that wearing a seat belt would have reduced injury, then the injured party is considered contributory negligent and injury compensation is reduced accordingly.

In Stanton v Collinson, four people were being given a lift home by the driver.  The driver allowed his car to cross the centre of the road at speed and struck another vehicle.  One of the passengers made a personal injury claim.  The driver’s insurers admitted primary liability but argued for contributory negligence because the passenger:-

• was not wearing a seat belt at the time of the accident;
• was sitting on the lap of another passenger;
• encouraged the driver to drive too fast;
• had been drinking alcohol which impaired his ability to judge what was safe.

The judge found the passenger was sitting in the car seat with another passenger in his lap, there was no evidence the passenger had encouraged the driver to drive too fast and the allegation of the passenger drinking alcohol was not pursued.

The driver’s insurers claimed that the passenger’s failure to wear a seat belt should result in a reduction of compensation of more than 25%.  Following Froom v Butcher, a starting point of 50% reduction should be used where injuries would have been prevented if a seat belt was worn and a starting point of 33% where injuries would have been less severe had a seat belt been worn by the injured passenger.

Engineering experts reported that a seat belt would have reduced the severity of the head injury sustained by the passenger in the accident, but complete prevention of injuries to his head, face or neck would have been unlikely so the passenger would have suffered some form of brain injury even if he’d worn a seat belt.  The driver’s insurers had produced no medical evidence that the brain injury would have been less severe if the passenger had worn a seat belt so damages were not reduced. 

The driver’s insurers appealed but the Court of Appeal found that there should be no reduction in accident compensation where the injury would not have been reduced by a considerable extent if the passenger had worn a seat belt.

Driver and Passengers found not contributory negligent after accident caused by diesel spillage

In an accident compensation claim, compensation awarded can be reduced if the person claiming compensation is believed to have contributed to causing the accident.  For example if a car driver is not wearing a seatbelt and is injured in an accident that was not their fault, their accident compensation will be reduced if the injuries sustained would not have been as severe if they had been wearing their seatbelt.  Therefore the driver is considered to have contributed to their injuries and compensation will be reduced accordingly.

In a recent case, Lac v Clayton, the Court had to consider whether a driver and his passengers had contributed to their accident by failing to move to a place of safety and so becoming hit by another car. 

The driver had approached a flyover and on the brow of the flyover became aware of a car swerving out of control because there had been a diesel spillage.  The driver braked to avoid the other car, lost control and came to stop with his car on the raised kerb of the central reservation.  The driver managed to move his car back down the flyover and parked in the nearside lane.  The driver and his two passengers got out of the car to check the damage to the wheels.  Another car came over the brow of the flyover, lost control due to the diesel spillage, and crashed into the back of the driver’s car.  The crash resulted in the driver and his passengers becoming injured.

The second driver alleged that the first driver and his passengers had been contributory negligent as they should have moved away from their car to a position of greater safety.  The second driver relied on paragraphs 249 and 257 of the Highway Code which advise that drivers and passengers should leave their vehicles and move away from the carriageway and hard shoulder on a motorway and that a driver should move uninjured people to a place of safety.  The second driver lost his claim and appealed.

The Court of Appeal held that the first driver and his passengers were not contributory negligent.  The Court of Appeal found that the first driver and his passengers were shocked by the loss of control after sliding on the diesel spillage and therefore should not be blamed for failing to consider their own safety in the short time before the second driver appeared.  As the accident occurred on a flyover with no pedestrian refuges, it was not obvious as to the best place to go to be safe. 

Had the accident occurred with an obvious place of safety such as a pavement and the first driver and passengers not been shaken by the loss of control, then the first driver and passengers would have been contributory negligent.

Early Settlements can leave Accident Victims undercompensated

An Early Day Motion on the issue of Third Party Capture, where insurers contact injured motorists shortly after an accident, has been launched in Parliament by Linda Riordan MP.  The Early Day Motion states,

Early Settlement by Insurance Companies

That this House is concerned that people who have been injured through no fault of their own are being subjected to high pressure tactics from some insurance companies; notes that such tactics can impede proper access to justice for injured people and compound their distress; believes that all injured people should be made aware of their right to independent legal advice; and calls on the Government to work with the Financial Services Authority to introduce regulation in this area to protect injured people.

The motion has the support of the Association of Personal Injury Lawyers (APIL) and the Motor Accident Solicitors Society.

Under third party capture, insurers contact accident victims, often within hours of the accident, and offer compensation for injuries sustained by the accident.  As accident claims are agreed on a ‘full and final settlement’ basis, once the level of compensation is agreed then the accident victim cannot ask for more compensation if the injuries sustained turn out to be more serious than first thought.  Some injuries, such as whiplash and back or spinal injuries, often take time to become fully apparent so what initially seemed like a twinge could develop into something more serious.  Early settlement can leave victims under compensated.

Personal Injury solicitors will arrange for an independent medical examination to establish the nature and seriousness of any injuries sustained in an accident.  The level of accident compensation will then be based on this report and will ensure that the accident victim is fully compensated.