Road traffic accident claims - overviewDuties of the road user

The road user has a duty to take reasonable care to avoid causing damage to others using or present on the highway. This not only covers other drivers but also passengers, pedestrians, cyclists and owners of property on the highway.

The standard of care required is the care and skill of an ordinary driver and no allowance is made for the inexperienced or learner driver. The road user should also anticipate that other road users or persons on the highway may not show this requisite standard of skill, experience and care.

Proving negligence and common types of accident

Road traffic accident claims are predominantly brought in negligence. As a starting point for assessing whether a driver of a motor vehicle has been negligent and breached the requisite standard of care the court will consider the application of the Highway Code. If the driver has breached the code this can be relied on as tending to establish liability in civil proceedings. In addition, while a road traffic criminal conviction is not in itself proof of negligence, the conviction shifts the burden of proof to the defendant to disprove liability in the civil action.

Common types of accidents

Precedent case law has established the common law position in many common accident situations. A strong inference of negligence arises in certain scenarios, such as with rear end shunts. As liability turns on whether the driver has exercised reasonable care each case will turn on its facts. Guidance should be sought from the Highway Code and all relevant case law. Particular reference should be made when dealing with cases involving rear end shunts, overtaking, excessive speed, junctions and narrow roads.

See Accidents on the highway - overview for the position on accidents caused by the state of the highway.

Defences

It is common for contributory negligence to be pleaded as a defence in road traffic accident cases and reference should be made to the case law in this area. In particular, if the failure to wear a seat belt has affected the claimant's injuries this will normally result in a deduction for contributory negligence of between 15% and 25%. The statutory requirement to wear seat belts is now contained within the Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations 2006, SI 2006/1892.

Other road users

Motorcyclist. cyclists, pedestrians, children and emergency vehicles all use the highway and are under a duty to take such care as is reasonable in the circumstances to ensure they do not injure their neighbour.

To ascertain the duty of care owed by each category of road user it is necessary to consider the relevant case law and highway code. This will assist in determining the approach taken by the courts when assessing the relative culpability of the parties involved in a road traffic accident.

Motor insurance

There is a general duty on all drivers of a motor vehicle to hold a valid motor insurance policy to cover personal injury or death to a third party arising out of the use of that vehicle. Under section 151 and section 152 of the Road Traffic Act 1988, where a claimant has obtained judgment against an insured driver they can enforce that judgment as against the insurer even if there were grounds for the insurer to avoid or cancel the policy.

Pursuant to the European Communities (Rights against Insurers) Regulations 2002, SI 2002/3061, where a vehicle is insured and the negligent driver of the vehicle is covered under the insurance policy a claimant has the right to issue proceedings against the insurance company directly. If the claimant can prove that there is a cause of action against the negligent insured driver the insurance company will be liable to the claimant (to the extent that the driver is found liable). This provision is only available to claimants who are residents of member states and have sustained accidents in the UK after 19 January 2003.

Uninsured and untraced drivers and the role of the MIB

All authorised insurers are obliged to become members of the Motor Insurer's Bureau (MIB) and to contribute towards a fund to compensate persons injured in accidents involving negligent uninsured or untraced drivers.

Claimants wishing to recover compensation under the Uninsured Drivers Agreement 1999 should pursue a recovery against the uninsured driver. The MIB will satisfy any judgment as against that driver if all the requirements of the agreement have been complied with.

The claimant must complete an MIB claim form and within 14 days of issuing proceedings give the MIB and any relevant/potential insurer notice that proceedings have been commenced. The agreement sets out a number of additional requirements as well as an obligation to provide the MIB with supporting documentation which must be complied with during the course of the proceedings.

Claimants who have sustained injuries as a result of a 'hit and run' accident where the driver or owner cannot be traced should apply for compensation under the Untraced Drivers' Agreement 2003. Any application must be made in writing to the MIB within three years of the index event. There are a number of exclusions from the agreement and the MIB is under an obligation to properly investigate every claim. If an application is successful damages will be awarded commensurate with what the injured party would have received had they brought civil proceedings against the unidentified party.