This is an extract of our Road Traffic Accidents document, which we sell as part of our Personal Injury and Clinical Negligence Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
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ROAD TRAFFIC ACCIDENTS CASE ANALYSIS Common law negligence: the claimant will need to show:-Duty of care - one road user to another (Donoghue v Stevenson) o Legal and factual basis o Standard of care - that of the reasonable careful driver (Nettleship v Weston) Breach of duty such as o Driving too fast o Driving without paying attention o Driving whilst tired o Failure to maintain the vehicle o Relevant criminal convictions? See p. 27
? Vehicle maintenance
? Poor driving - speeding, dangerous driving, careless driving
? Influence of alcohol or drugs
? Use of mobile phones
? Wearing of seat belts and child restraints
? Wearing of safety helmets o Breaches of Highway Code?
o Res ipsa loquitur - burden of proof remains on the claimant throughout but applies where
? Incident would not have occurred without negligence AND
? Whatever inflicted or caused the damage was under the sole management and control of the defendant Causation Reasonable foreseeability Consider contributory negligence - p. 30
Possible partiesDrivers Passengers Pedestrians Driver's insurer Driver's employer (vicarious liability) Motor Insurers' Bureau (if defendant is uninsured/unidentified) Highway Authority (where poor road surface/inadequate)
Early action - liabilityProof of evidence covering all basic facts from driver and other witnesses
Request documents from Defendant and Client (including vehicle's MOT certificate, photographs of crash site, damaged vehicle etc. and Police Accident Report) Other witnesses Advise client on law, procedure and timescales Case analysis Visit site - carry out damage assessment by mechanic Highway Code Relevant previous convictions?
Is the insurance policy valid?
Strategy for bringing/defending claim and estimate cost (provisioning)
POLICE ACCIDENT REPORTS See reports in file. BE SPECIFIC ENOUGH about the details in the police accident report.
MOTOR INSURERS' BUREAU, SS. 151 AND 152 ROAD TRAFFIC ACT 1988 Insurer's grounds to avoid paying out insurance claims--
Insurers normally insert a clause in the insurance contract allowing them to initiate/defend proceedings in the name of the insured - this is called subrogation Sometimes the defendant will have insurance, but the insurer has grounds to avoid it if: o Defendant has breached the terms, such as
? Driving drunk
? Failure to disclose previous driving offences OR o The driver of the vehicle was not insured to drive it, such as
? Family/friend of policy holder drove, with/without permission BUT the claimant should NOT be dissuaded from issuing a claim as s, 151 RTA 1998 will oblige the insurance company to pay out on the judgment to the claimant if o notice of the proceedings is given to the insurer before or within 7 days of commencement of the proceedings AND o the driver is identifiable Under s. 151(4) there is an exception in relation to third parties who were o willing passengers in a vehicle they knew or o had reason to believe had been stolen Under s. 154, where an accident has resulted in personal injury, all drivers involved must supply details of their insurance to others involved in the accident o It is a criminal offence to refuse or to give false information
The Untraced Drivers Agreement 2003This applies where:
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