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Jean-Yves Gilg

Editor, Solicitors Journal

Update: road traffic

Update: road traffic


Robert Sproston and Anjali Krishnan discuss the proposal for reduced speed limits, texting while driving, and cases involving emergency response vehicles, uninsured drivers and fraudulent claims

In 2010 the national speed limit may be reduced from 60mph to 50mph on the majority of roads in Britain. Latest figures show that 3,000 people each year are killed on our roads and it is hoped that such a reduction in speed will lower this figure. Research undertaken by the Department of Transport concluded that by reducing the speed limit between 200 and 250 lives could be saved each year.

The majority of reductions would apply to rural roads upon which 69 per cent of fatalities took place in 2007. Speed limits would remain at 70mph on motorways and 60mph on the safest 'A' roads. Britain's roads currently rank 6th safest in the world '“ a significant drop from being considered the safest in the world in 2001.

It is undeniable that on some rural roads with acute bends and dips, a 60mph limit is too high; but in these accident hotspots it is likely that a 50mph limit will also be excessive. Rather than apply a broad brush approach to all rural roads perhaps it would be more sensible to focus on the areas where accidents are prevalent and reduce the speed limits accordingly, arguably to less than 50mph in specific areas where appropriate.

Texting at the wheel

The correlation between speed and serious injury is well known, but clearly lack of concentration is a common cause of fatal traffic accidents.

In the last update we referred to the case of Phillpa Curtis who was given a 21-month sentence for causing death by dangerous driving following a journey in which she made and received more than 20 texts before ploughing into a stationary vehicle (see Solicitors Journal 153/6, 17 February 2009).

Following an application by the Attorney General, the Court of Appeal recently considered the length of this sentence, which has been the subject of much debate. It seems the fact Ms Curtis was not using her phone at the time of the actual collision held much weight in deciding the appropriate sentence. It was however accepted that there was no doubt Ms Curtis would have been less likely to have been distracted had she never touched her mobile phone.

When taking all of the factors leading up to the accident and the fatal outcome into account, 21 months is arguably a lenient sentence. However, determining the length of custodial sentences is a fact-specific exercise, and based on the facts of this case it could not be said that the phoning or texting was happening at the moment of impact or in the few seconds immediately before it. The Court of Appeal did not order for Ms Curtis' sentence to be increased.

Police in the dock

Drivers of emergency response vehicles continue to find their actions being scrutinised by the courts. Armsden v Kent Police [2009] EWCA Civ 631 involved the driver of a police car responding to an emergency call who was involved in a fatal accident. The police officer had been driving at speed along a single lane carriageway and after rounding a bend the driver approached a T-junction on the left-hand side of the road. The third party vehicle then emerged from the junction, attempting to turn right towards the police car, and the third party was killed. The police driver had activated the vehicle's flashing blue lights but not the siren.

The court's initial decision was that liability rested 100 per cent with the police driver for travelling at an excessive speed and failing to use the police siren, which would have warned the third party of his approach. However, on appeal it was found that primary liability rested with the third party for not checking again to her right before pulling out. Nevertheless, contributory negligence of 40 per cent was attributed to the police driver for his 'careless' failure to use the police siren which would have afforded the third party a greater reaction time as she would have heard the police vehicle prior to seeing it. This case is another example of the exacting standards placed upon drivers of emergency response vehicles where speed is involved.

In April this year PC John Dougal was charged with causing death by dangerous driving for knocking down and killing a schoolgirl in a built-up residential area. He had been driving at 94mph in a 30mph zone without his siren or blue lights on display. During his trial it was found that he had been travelling so fast that he effectively 'surrendered to physics' and became a passenger in his own vehicle.

A police driving standards expert commented during the trial that he could not imagine a situation that would justify accelerating over 90mph in a built-up area without activating the lights or siren. It emerged that the police officer was pursuing a vehicle which had been wrongly indicated as suspicious. Further, prior to commencing work he had spent more than two hours working as an electrician; although he denied during his trial that he was tired when he started his shift.

The Independent Police Complaints Commission have said that an average of 40 people die in England and Wales each year in road traffic accidents involving the police and the question needs to be asked: how much is this due to needless risk taking? Guidance on alternative methods of chasing a suspect and on how pursuits should be conducted is clearly needed.

The right to recover under section 151 clarified

In Wilkinson v Fitzgerald and Churchill Insurance Co Ltd [2009] EWHC 1297 (QB) (see Solicitors Journal 153/24, 23 June 2009) the claimant allowed his friend, whom he believed had his own insurance, to drive his car, with the claimant being a passenger in the vehicle. As a result of his friend's negligent driving, a collision ensued and the claimant suffered a severe head injury.

The claimant commenced court proceedings against his friend and sought an indemnity from Churchill, his insurers. Churchill invoked section 151 (8) of the Road Traffic Act 1988. The court found, however, that to invoke this section would be in breach of the EC First and Second Motor Directives which seek to guarantee compensation to victims of road traffic accidents. It concluded that an insurance company cannot recover from an injured policyholder compensation paid by way of an indemnity as a consequence of the negligent driving of an uninsured driver of the policyholder's vehicle. This applies even where the policyholder gave permission to the uninsured driver to drive.

Interestingly, if Churchill's argument had been accepted, the claimant would have been less protected by having effective insurance cover than if he had none at all, as in this situation he could have relied upon the MIB Uninsured Driver's Agreement.

The phantom passenger

It is a common misconception that where one claimant supports another claimant's claim which eventually turns out to be fraudulent, the original claimant's claim must also fail due to their evidence having been tainted. The case of Shah v Ul-Haq and others [2009] EWCA Civ 542 came before the Court of Appeal recently concerning this issue (see Solicitors Journal 153/23, 16 June 2009). The matter involved a road traffic accident where liability had been admitted. Three claimants pursued claims against the negligent driver, but the third party alleged that the claimant's vehicle had only two occupants. An application was made to strike out all three of the claimants' claims.

On appeal it was found that the phantom passenger had not in fact been in the car at the time of the accident and the other two occupants of the vehicle had conspired with her and supported her fraudulent claim. Her claim was therefore struck out, but the other claimants' claims were allowed. Guidelines were given by the judge as to the approach to take in such cases and it was found that if a trial judge could make reliable findings of fact and considered the claims to be genuine, even if the claimants had conspired to defraud, then such genuine claims should be allowed. Conversely, if because of the fraudulent evidence it became impossible to proceed with a fair trial, then the judge would have no option but to strike out all of the claims. However, the two claimants' successes here were limited because of the fact that they were heavily penalised in legal costs '“ both were ordered to pay two thirds of the costs incurred by the defendant in defending their claims.

A not-so fortunate claimant was found guilty of contempt of court recently in a case where she was deemed to have exaggerated her symptoms following an accident. The matter of Walton v Kirk [2009] EWHC Civ 703 concerned a claimant alleging she had suffered significant and long-term disability as a result of her accident. The judges found that in falsely completing forms to pursue claims for state benefits and a parking badge, and verifying them in litigation, the claimant was guilty of contempt of court and a fine of £2,500 was imposed. This case obviously fires a serious warning shot across the bows of claimants seeking to maximise their damages by unfair means.

The Jackson Report

As all practitioners undertaking personal injury work are no doubt aware, Lord Justice Jackson is currently preparing a report on all aspects of funding of civil litigation and his interim report was published on 8 May 2009. There is now a consultation procedure which runs until 31 July and publication of the final report is expected on 31 December.

The report runs to over 600 pages and one of the key issues as far as personal injury practitioners are concerned is in relation to the potential introduction of fixed profit costs for fast-track cases after legal proceedings have been issued. At present such fixed costs are only applicable if the case settles before proceedings are issued and the case has arisen following a road traffic accident. Such fixed costs post-issue of proceedings in the future may cast a wider net and encompass occupational disease, employers and public liability cases. It is likely that any fixed costs matrix that is eventually agreed will include a reduction in the level of fees for cases where liability had been admitted by the third party insurers.

Roadshows are currently taking place with prominent speakers, including the president of the Law Society, the chairman of the Bar Council and a number of eminent judges. At the moment the suggestions in the report do not appear to take account of Part 36 Offers or provide clarification as to when certain disbursements will be recoverable and clearly there is a great deal to do before a workable scheme is produced.