Update: road traffic

With the coldest January on record since 1997, very few people in England will have escaped the snow and ice which has taken over our roads and pavements bringing much of Britain to a standstill. Many motorists will have been involved in accidents caused by icy roads which will no doubt result in a plethora of claim enquiries, but are these claims likely to be successful? Do motorists have a claim against the Highways Agency?

There is a duty on the Highways Agency to keep the roads clear of snow and ice as far as reasonably practicable. The question of reasonable practicality, however, will have to take the extreme and unprecedented weather conditions into account. With salt and grit supplies dwindling, the government was forced to order salt from abroad. In the meantime, local authorities agreed to reduce their use of grit by 25 per cent and the Highways Agency stopped treating motorway hard shoulders.

All of these factors will go towards considering what they could have reasonably been expected to do in the circumstances. The likely answer will be that they could not have done much else.

Whether such claims will be clogging up our courts in 12 months time like the snow and ice did to our roads remains to be seen!

April looms large

October's costs update discussed the new RTA claims process, the implementation date for which remains at 6 April 2010 (Solicitors Journal 153/38, 13 October 2009). The new procedure covers RTA personal injury claims where liability is admitted with a value of between £1,000 and £10,000. Fixed recoverable costs are payable by the defendant's insurers at the end of each stage (£400 for stage 1, £800 for stage 2 and £250 if the case proceeds to court on paper and £500 for an oral hearing).

The new procedure is intended to speed up the process of dealing with these claims generally, and a secure electronic portal is to be used to pass standardised information between claimants' solicitors and insurers within specified timeframes.

The pilot workshop to test stage 1 of the new process has now taken place and the trialing by claimants' solicitors and insurers for stage 2 is currently in action. It is vital that any glitches in the system are ironed out by April 2010, bearing in mind that most new RTA's will fall within this procedure.

The easiest way to use the portal will be by way of a web browser whereby solicitors will simply require access to the internet through software such as Internet Explorer. Training of all handlers undertaking such work is vital because of the strict time limits imposed both upon insurers and solicitors and early familiarisation with the new electronic forms will be crucial.

While one initial concern raised by solicitors was that if insurers were not up to speed with the new process many claims would fall out of the new procedure if insurers failed to adhere to time limits, this could equally be a problem for tardy solicitors who fail to send the forms on time because they will then have to wait for payment of any costs until the conclusion of the case rather than being paid throughout the life of a claim under the new scheme.

Review of road traffic legislation

2 December 2009 saw two proposed changes to road traffic legislation. The first being Jack Straw's announcement of the government's intention to increase the current maximum sentence for dangerous driving from two to five years.

Although such changes will take time to implement and pass though Parliament, it is a step in the right direction for many people who have lobbied for a change in sentencing. The government has been criticised in the past for the leniency of sentences for dangerous driving. This proposal follows a campaign by the parents of Cerys Edwards, a toddler who was left paralysed by a car travelling at over 70mph in a 30mph zone. The driver in this instance was jailed for 21 months, serving only six months of his sentence.

Dangerous driving can often leave the victim seriously injured and this proposed change in the law would bring into line the penalty for dangerous driving leading to injury with those who cause death because their driving is careless which was increased from ten to 14 years in 2003.

A review of the drink and drug driving laws is the second proposed change. A reduction in the limit is expected to be recommended bringing England in line with other EU countries. This would reduce the current limit of 80mg of alcohol per 100ml of blood to 50mg; i.e. one small glass of wine and just under a pint of beer.

Penalties are also likely to be reviewed to take account of the potential for people being caught out by the lower limit; one suggestion is that anyone registering between 50mg and 80mg would receive two penalty points rather than an automatic ban.

Although there is clearly a case for a review, it is questionable if this will actually lower the death rate of 430 per year on the basis that the majority of people killed in alcohol-related accidents were significantly over the 80mg limit. Drug driving will also face review and it is expected a new offence of driving while above a specified level of named drugs will be created, mirroring alcohol legislation.

Contributory negligence

The effect of drug driving on personal injury claims is not as widely reported in comparison to drink driving; however, there have been some interesting cases which have indicated the position with regards to contributory negligence. In Debra Hodsun-Turner (as Widow and Executrix of the Estate of Craig Turner, Deceased) v (1) Philip Carr (2) TG Holdcroft Ltd (2009), liability was agreed in the sum of 85/15 in favour of the claimant as there had been traces of cocaine in the deceased's blood at the time of the accident. A further 40 per cent reduction was made to the total value of the claim on account of the likely effect of drugs on the deceased's future earning capacity and life expectancy as there was evidence that the deceased had been addicted to cocaine.

Trial judges have continued to use their powers to apportion liability in a number of recent trials. One such case was Henry v Thames Valley Police [2010] EWCA Civ 5. A motorcyclist (C) was returning home from a social event in the early hours of the morning. Two police officers formed the view that C was speeding and at times driving dangerously. They followed him and flashed him to stop but he continued home. C drove through the gates onto his driveway and stopped, and one of the officers attempted to drive the police car as close as possible to the motorcycle to impede his escape. As he did so, C dismounted from his motorcycle and suffered serious injury to his right leg which became trapped.

The court's initial decision was that C must have stumbled and was 100 per cent responsible for his own injury. However, on appeal, it was found that C attempting to escape from the scene was most unlikely and the decision to attempt to trap C and prevent him from doing so was unnecessary. The officer's driving was therefore below the reasonably skilful standard that could be expected and he was partly responsible.

However, C was found to have behaved foolishly in seeking to evade the police when they initially asked him to stop and he was therefore found to be 60 per cent to blame for his own misfortune and his damages were reduced accordingly.

This is an interesting decision because the officer's manoeuvre appears to have been the sole cause of C's injuries, yet, because of events that occurred beforehand and away from the actual accident scene, C's damages were substantially reduced.

A recent case came before the Court of Appeal regarding illegal parking (Howe and Others v Norwich Union Insurance [2009] EWHC 334 (QB)). Here, a motorist (C) had parked his vehicle illegally within zig-zag markings of a pedestrian crossing in breach of the Highway Code. He was seriously injured when alighting from his vehicle. The articulated lorry driver (D) argued that because C had parked illegally he should be found partly responsible for the accident, but the judge's decided that, although the vehicle was parked in a controlled area, it was just as visible as if parked anywhere else and D was deemed wholly responsible.

I suspect this decision would nevertheless have been different had an accident occurred to someone crossing the pelican crossing, with C's vehicle having obscured the lorry driver's view.

Infant cases

An issue often argued between solicitors concerns the recoverability of costs when dealing with a minor's claim following a road traffic accident where the compensation figure must be approved by a court. Many infants suffer only minor injuries where the amount of compensation is less than £1,000, and claimant's solicitors are often then faced with an argument that only small claims track costs (currently £60-£80) ought to be recoverable by the solicitor having regard to the amount of the settlement figure.

This matter was considered in the case of Bennett v Hughes (2009). Damages were assessed at £653.25 and the parties argued the level of costs that ought to be applicable. It was ruled that as cases involving children or mentally disabled persons who are in greater need of support should be dealt with by a solicitor, it would then be unacceptable for the court to refuse to allow for the costs of those services.

The judge found that in very low-value claims (£250 or less) it was possible for the defendant to rely upon parental indemnity agreements (agreements given by the child's parents that the compensation figure is reasonable) which would avoid an application to the court but in all other cases where court approval is required the solicitor's legal costs should be allowed.

Lord Justice Jackson's report into the costs of civil litigation has now been published and has recommended wide-ranging reforms including the extension of fixed costs, which may result in arguments like the one above being consigned to the history books. Nevertheless, much of what has been recommended by Jackson LJ will need primary legislation before implementation can take place and debate is fierce at the moment as to if, when and how these reforms can be implemented.

Mobile phone use while driving

Celebrities are very good at getting into all manner of scrapes. They are also, it appears, extraordinarily creative when it comes to getting themselves out of them.

Jimmy Carr is the latest celebrity to have successfully wriggled out of a tight spot, which arose when he was hauled up in front of Harrow Magistrates' Court for his alleged use of his mobile phone while driving.

To prove the offence, the prosecution needed to satisfy: a) that the accused was holding a mobile telephone (proved in this case through police evidence); and b) that the accused was performing an interactive communication function.

It was the phrase 'interactive communication function' which held the key to Jimmy's escape from conviction. He wasn't 'using' his mobile phone, he argued, because use of such a function is defined in section 41(d) of the Road Traffic Act 1988 thus: 1) sending or receiving oral or written messages; 2) sending or receiving fax docs; 3) sending or receiving still or moving images; or 4) providing access to internet.

His argument that he was not 'using' his mobile phone on the basis that he was in fact dictating a joke. Dictaphones being one-way devices, using the phone in that way '“ effectively to talk to himself '“ did not constitute an offence in the absence of additional police evidence that he was not in proper control of his vehicle.

Thanks to the gaping hole in the section 41(d) definition, evasion of a penalty fine could be achieved (in the absence of evidence on your phone to the contrary) by explaining to the apprehending officer that you were simply giving yourself a good talking to!