Road Traffic Collisions and Civil Law - BHSS
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Presentation by Brenda Mitchell of Road Traffic Accident Law (Scotland) [RTAL(S)] to members of the British Horse Society Scotland at their Safety Conference at Blue Ridge Equestrian Centre, Falkirk
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Road Traffic Collisions and Civil Law - BHSS
- 1. “Road Traffic Collisions and Civil Law” BHSS Safety Conference 13th Feb 2016
- 3. Highway Code – Vulnerable Road Users
- 4. Highway Code: Rules for horse-riders Rules 49 – 55 • Safety equipment • Clothing • Riding at night • Where not to ride
- 5. Highway Code: Rules for drivers 'Be particularly careful of horse riders and horse drawn vehicles especially when overtaking. Always pass wide and slowly. Horse riders are often children, so take extra care and remember riders may ride in double file when escorting a young or inexperienced horse or rider. Look out for horse riders' and horse drivers' signals and heed a request to slow down or stop. Take great care and treat all horses as a potential hazard; they can be unpredictable, despite the efforts of their rider/driver'.
- 6. Horse related incidents • 2015 Reported Incidents in Scotland – Dog attacks (13) – Road Traffic Incidents (18) – Cycling related incidents (3) • BHS Accident page – http://www.bhs.org.uk/safety-and- accidents/report-an-incident
- 7. Fault based system Injured party must prove fault (negligence) on balance of probability
- 9. Carryfast v Hack R.63 of Highway code (1978) states: “Go slowly when driving past animals. Give them plenty of room and be ready to stop if necessary. Do not frighten the animals…..by revving your engine.”
- 12. Farrer-Sowerby v Stubbs • Diminution in value (£2000) • Loss of Use + Enjoyment • Veterinary Costs • Additional stabling Damages ‘But for’ rule £6,075
- 14. 4 legged friends
- 15. Animals (Scotland) Act 1987 Provisions as to strict liability for injury or damage caused by animals. (1)… a person shall be liable for any injury or damage caused by an animal if— (a) at the time of the injury or damage complained of, he was a keeper of the animal; (b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and (c) the injury or damage complained of is directly referable to such physical attributes or habits. (3) For the purposes of subsection (1)(b) above— (a) dogs, and dangerous wild animals within the meaning of section 7(4) of the Dangerous Wild Animals Act 1976, shall be deemed to be likely (unless controlled or restrained) to injure severely or kill persons or animals by biting or otherwise savaging, attacking or harrying;
- 16. Principles of Scots Law
- 17. RTC – Who brings most harm?
- 18. In the present state of motor traffic, I am persuaded that any civilized system of law should require, as a matter of principle, that the person who uses this dangerous instrument on the roads – dealing death and destruction all around – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault. To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it. Lord Denning - 1982
- 19. “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.” Destructive disparity (2003) Lady Justice Brenda Hale
- 22. Shifting the Burden of Proof
- 23. A road share culture
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.
- To suggest that presumed liability will somehow turn Scots Law on its head is a complete nonsense. Principles of Scots Law are such that the individual has always been protected where the concept of harm is relevant. Take for example the Animal Scotland Act where a dog owner is strictly liable if his or her dog bites an individual. The work place had strict liability until it was removed following upon Section 69 of the Enterprise and Regulatory Act. Before that and following introduction of strict liability in 1993, fatal accidents in the workplace were reduced from 1.3 per hundred thousand to 0.5 per hundred thousand over a 20 yr period. The Consumer Protection Act extends strict liability to the manufacturer or supplier of defective goods. If an individual is injured as a result of a defective product, the manufacturer or supplier is strictly liable to compensate that individual. All these examples take into account harm and who brings most harm to a situation. Why then is it so difficult for us to understand that presumed liability recognises the concept of harm? Why can we not take that one small step forward?
- Judges do take into account the aspect of blame worthiness. We seem to be half way there. For example, Lady Justice Brenda Hale stated, “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”.
- The imposition of liability affects how categories of actors respond to the risks they create. Liability acts as an incentive to exercise care. Presumed liability will have a positive affect not a negative one.