Road Traffic Collisions and Civil Law - D&G IAM Group
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Brenda Mitchell, Senior partner and founder of Road Traffic Accident Law Scotland LLP covered a range of topics including:- Criminal v Civil Law. Common motorcycle accident scenarios. Fault, part-fault and non-fault incidents. Case Law - Motorcycle and Pedestrian. Case studies. Injuries and rehabilitation. The claims process. Valuing a claim. The role of the Police. Insurers. Motorcycle Recovery and charges. Accidents across the Border. Accidents abroad. Who pays?
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Road Traffic Collisions and Civil Law - D&G IAM Group
- 1. Presentation to Dumfries and Galloway Advanced Motorists/Motorcyclists Apr 1th 2019 Road Traffic Collisions and Civil Law
- 3. Our Offices
- 4. Road Traffic Law • Criminal Law • Civil Law
- 5. Criminal Law ‘Innocent until proven guilty’
- 7. Accident | Collision | Crash | Incident • Fault. • Non Fault. • Part Fault.
- 11. Duty of Care
- 13. Liability - Expect the unexpected • McCracken v Smith
- 14. • 50% + 15% (no helmet) • Total contributory negligence – 65% Result
- 15. Eagle v Chalmers
- 16. Eagle v Chalmers Destructive disparity “The Court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon.” 60% Driver 40%Pedestrian
- 17. Smith v Bluebird Buses (2014)
- 19. • 85% - Pedestrian • 15% - Bus Driver Result
- 20. Gray v Botwright (2014)
- 22. Adam Wagner
- 23. Adam Wagner
- 24. Adam Wagner v Thomas Grant and another • 60% Driver • 40% Motorcyclist But on appeal…. • 40% Driver • 60% Motorcyclist
- 31. Restitutio in integrum “Restoration of an injured party to the situation which would have prevailed had no Injury been sustained.”
- 32. Protocol • Liability – 12wks • Quantum
- 33. Injury
- 34. Damages and Loss • Motorcycle/Vehicle • Policy Excess • Helmet • Protective clothing • Help and Assistance • Expenses • Injury • Loss of income
- 35. End Result - Settlement
- 36. End Result – Court action
- 37. Over-optimistic?
- 39. The facts.
- 40. Proposed split on liability • Insurer and Panel Solicitor propose 80/20 split in favour of the car driver.
- 41. Judgement Sheriff Kenny McGowan Leslie O’Donnell v Lisa Smith and Royal and Sun Alliance Insurance PLC 100% in favour of the motorcyclist, Leslie O’Donnell
- 42. Top Tips (1) 1. DON’T TAKE OUT INSURERS’ LEGAL EXPENSE INSURANCE when renewing your insurance premium.
- 43. Top Tips (2) • Police Incident Information form. • Photos from the scene. • 3rd Party Reg No. 2. OBTAIN KEY INFORMATION:-
- 44. Top tips (3) 3. DON’T LET YOUR INSURER APPOINT A PANEL SOLICITOR
- 45. Top Tips (4) 4. DON’T LET THIRD PARTY INSURER ACT FOR YOU. HASTINGS V HASTINGS.
- 46. Top Tips (5) 5. APPOINT YOU OWN SPECIALIST SOLICTOR Personal Service Matters
- 47. Catastrophic Injuries • Open fracture to left humerus. • Fracture to left shoulder blade. • Fractured left collarbone. • Left-sided rib fractures. • Right elbow dislocation. • Right forearm and wrist fractures. • Fractured right thumb. • Internal bruising to the chest. • Soft tissue injuries to pelvis. • Fracture to right ankle. • Fractured left heel bone.
- 48. Rehabilitation • Initial needs assessment • Physiotherapy/Counselling • Case management Code of best practice.
- 51. Everyone is an individual
Editor's Notes
- The starting point is the Duty of Care. We all owe a duty of care to other road users and that is a common law duty to exercise reasonable care and not to expose others to harm by our actions. When considering a claim for compensation, you need to establish that a duty of care is owed, there has been a breach of that duty of care AND, as a result, a person has been injured. The important point is negligence. Negligence is established based upon the concept of balance of probability. Importantly, presumed liability does not do away with the concept of negligence. For a vulnerable road user to be compensated, there has to be a negligent act which resulted in the collision. Many argue that compensation is wrong and out of control. Some even suggest we have a “compensation culture” yet as Sheriff Principal James Taylor stated in his Review Of Expenses and Funding of Civil Litigation in Scotland, “there is a different culture in Scotland“ and there is no evidence of a “compensation culture “ in Scotland. The whole purpose behind an award of compensation is an attempt to put an injured individual back into the position they would have been in but for the accident.
- The starting point is the Duty of Care. We all owe a duty of care to other road users and that is a common law duty to exercise reasonable care and not to expose others to harm by our actions. When considering a claim for compensation, you need to establish that a duty of care is owed, there has been a breach of that duty of care AND, as a result, a person has been injured. The important point is negligence. Negligence is established based upon the concept of balance of probability. Importantly, presumed liability does not do away with the concept of negligence. For a vulnerable road user to be compensated, there has to be a negligent act which resulted in the collision. Many argue that compensation is wrong and out of control. Some even suggest we have a “compensation culture” yet as Sheriff Principal James Taylor stated in his Review Of Expenses and Funding of Civil Litigation in Scotland, “there is a different culture in Scotland“ and there is no evidence of a “compensation culture “ in Scotland. The whole purpose behind an award of compensation is an attempt to put an injured individual back into the position they would have been in but for the accident.
- Insurer and Policyholder Excuses