Update: road traffic

As our little island becomes ever more crowded and the number of vehicles on our roads steadily increases, the dangers of driving at excessive speeds are heightened. However, these dangers are not always caused by the average Joe on the street and drivers of emergency vehicles have also been in the firing line recently.

The need for speed?

An inquest in the Somerset coroner's office that recently took place involved the unfortunate death of a man who was involved in an accident after his vehicle was in collision with a marked police BMW vehicle. The deceased was pulling out of a junction from a country lane onto an A road, and the driver of the police vehicle was responding to a high response 999 call after a member of the public reported seeing an individual with a firearm.

At the inquest the coroner found that the deceased driver had failed to see the approach of the police car and recorded a finding of accidental death. However, the coroner made a number of telling recommendations following the hearing. Although the police driver was found not to have been responsible for the accident, the coroner questioned whether a high-speed response was always necessary for police emergency calls.

In this case the police vehicle had its sirens and emergency lights activated and was responding to a 999 call, but the coroner questioned whether such responses were necessary only in particular circumstances. These circumstances could include terrorist activities, scenes where weapons were present and drink-drive cases where the driver could cause a fatality. In many other situations, the coroner believed that police vehicles driving at such high speeds was unnecessary and presented a grave public danger. He felt that if it was unclear whether or not a possible offence necessitated the use of high speed, then an inspector should have to authorise it.

The coroner wrote to the Association of Chief Police Officers and Her Majesty's Inspectorate of Constabulary putting forward these views and also recommended the use of identification responders (black boxes), currently used in aircraft, in police vehicles to record their speed.

It remains to be seen whether or not any such recommendations are implemented and the effect this may have on the number of fatalities involving emergency response vehicles.

Two strikes and you're out

The government proposal for motorists to receive heavier penalties if they materially exceed the speed limit continues to generate much debate. Currently, drivers accrue three fixed penalty points for speeding and can therefore be caught four times before they lose their licence '“ 12 points normally equalling a ban '“ but under the revised new laws, a fixed penalty of six points could result in a ban after only two offences. Drivers caught travelling at 50mph in a 30mph zone, 60mph in a 40mph zone and between 90mph and 100mph in a 70mph zone could all potentially be liable.

While the intention behind these proposals is a laudable one, the reality of the situation is that, at present, more than 1.1 million drivers are already on the brink of a driving ban, with six or more points on their licence. To introduce the above scheme where a driver can be banned after only two offences may lead to more drivers receiving bans and nevertheless continuing to get behind the wheel; and therefore a further drain on the public purse for monies paid out under the Uninsured Driver's Scheme.

The proposals have not been without their critics, especially the recommendation of a downward sliding scale of penalising drivers with two penalty points if found driving only a few miles an hour over the speed limit. In these circumstances drivers caught slightly over the speed limit would not be banned until their seventh offence, but road safety campaigners, including the Environmental Transport Association (ETA), have made the point that it makes little sense for a speeding driver on a motorway with no pedestrians in the vicinity to be saddled with six points when another motorist breaking the speed limit while passing a local school at 9 o'clock in the morning would receive only two points.

Speed as evidence of negligence?

The usual rule employed in the civil courts is that speed in itself is not evidence of any negligence on the part of the speeding driver. However, in the recent cases of Heaton v Herzog (Court of Appeal, 13 November 2008, LTL 13/11/2008), and Buchan v Whiting [2008] EWHC 2951 (QB), the court held that the motorcyclist involved in each accident was partially at fault due to their excessive speed.

In Heaton v Herzog a car driver was turning from a side road into a main road when a motorcyclist approached from her right to left. The collision occurred and the motorcyclist was unfortunately killed. Although the view of the car driver was restricted to her right by parked cars, she was found to be only 25 per cent at fault for the accident with the motorcyclist being 75 per cent to blame because of his speed.

In Buchan v Whiting, a motorcyclist was found to have been travelling 'recklessly fast' when a car driver drove across his path and a collision occurred. The motorcyclist was found to be 50 per cent responsible for the accident because of his excessive speed, which was estimated at between 50mph to 70mph in a 30mph zone.

If the government's proposal for a sliding scale for speeding offences does come into effect, then it will be interesting to see whether or not evidence of any six point speeding penalties find their way into civil proceedings. Currently, only a conviction in the criminal courts (e.g. for due care and attention) can be pleaded as evidence of negligence in any civil proceedings but persuasive allegations, such as breaches of the Highway Code, often find their way into such proceedings and can be material in the trial judge reaching a final decision. In an accident where one party has grossly exceeded the speed limit and receives such a six point penalty, it is very likely that this will be persuasive and at least some negligence may well be found to lie with the offending driver.

'Folly and madness'

Using a phone while driving was 'folly and madness', said Judge Julian Hall when passing a 21-month jail sentence to Philippa Curtis who was convicted of causing death by dangerous driving. Miss Curtis had sent and received more than 20 texts before crashing into a stationary vehicle killing its driver. This sentence is a reminder to drivers of the severe consequences of not paying proper attention when behind the wheel.

It became a specific offence to use a hand-held mobile phone when driving a vehicle in December 2003. The guidelines were further clarified in February 2007 and the current position remains that to use a mobile phone while driving will carry a minimum fine of £60 and three penalty points. Although using a mobile phone with hands-free equipment is still allowed under the regulations one has to wonder whether there will be further tightening of the position, particularly bearing in mind Julian Hall's comments in the Curtis case: 'Driving is a skill which needs 100 per cent concentration.'

A 21-month sentence may appear light in consideration of the range of possible penalties for causing death by dangerous driving. It remains to be seen what sentence the court will hand down in the case of the lorry driver, if found guilty, who is on trial this week for causing the deaths of a family of six by careless driving following an incident on the M6 last October. It is alleged that the driver was using his laptop whilst driving in order to find an alternative route because of a build-up of traffic from an earlier incident. The driver denies the charges.

Sentencing guidelines

The guidelines for sentencing were revisited in the case of R v Barnes [2008] EWCA Crim 2726 where an appeal against a conviction for causing death by dangerous driving and subsequent two-year jail sentence was dismissed. In this case the defendant was driving his truck along a dual carriageway with an unsecured sofa wedged in the rear when the sofa fell from the truck, landing in the inside lane. The defendant parked his truck with the nearside wheels off the carriageway to retrieve it. A motorcyclist travelling behind managed to avoid the sofa but drove into the defendant's truck and died. The motorcyclist was either distracted or had turned to warn others behind of the hazard.

Among other arguments the defendant submitted that the judge erred in refusing the submission of no case to answer on the basis that the defendant's vehicle was not in a dangerous condition because of the load nor was his driving the cause of the motorcyclist's death. In terms of sentencing, the defendant argued culpability should have been intermediate or low on the Cooksley Scale (sentencing guidelines laid down in the case of R v Cooksley [2003] EWCA Crim 996) as the defendant had no intention to injure or kill and there were no other flagrant breaches of the law.

Hallet LJ found the jury was entitled to find that the defendant put drivers at risk by driving dangerously and that such driving had more than a minimal role in the motorcyclist's death. In terms of assessing culpability, the position is one of obvious risk. In this case the court assessed culpability as 'high' on the Cooksley Scale as the defendant was not inattentive for a few seconds, rather, for a substantial part of the time.

It is open to argument if such sentences are reflective of a finding of high culpability and whether they give a 'clear message' of the seriousness of such offences as intended by the Sentencing Guidelines Council when issuing guidance last year.

Evidential basis for apportioning liability

Witness evidence can be crucial in making an assessment of liability and in the case of Hames v Ferguson [2008] EWCA Civ 1268 it was the evidential basis for the judge's conclusion. The claimant in this case, who was a rear seat passenger in the first defendant's vehicle, sustained severe head injuries when the first defendant rounded a bend in the road and collided with a tractor. Although the second defendant collided with the tractor moments later, it was common ground at trial that the claimant's injuries were caused solely by the first collision. The second defendant was still nevertheless found to be 40 per cent liable to compensate the claimant on the basis that his driving had an adverse influence on the first defendant's driving. This finding was made on the basis of witness evidence confirming that the defendants were driving close behind each other in convoy, on a country lane and at excessive speed.

In severe road traffic accidents, particularly those involving serious head injuries, it is commonplace for the parties involved to lack sufficient recollection of the events leading up to the accident which would normally assist a judge in assessing and apportioning liability. Independent witness evidence is crucial, particularly so in this case, in which it formed the basis of the judge's apportionment of fault between the defendants.