News Category 2
Review of Highway Code Due for 2019 - Charles Heppenstall, Weightmans LLP
10/12/18. On the 18th October 2018 the Ministry of Transport announced a proposed update of the Highway Code, to further codify driving practices intended to protect cyclists and pedestrians. This follows the publication in September of the DoT’s highway casualty statistics for 2017. Although these revealed a 39% decrease in road casualties over the past decade, cyclist and (in particular) pedestrian fatalities remain at unacceptable levels. Pedestrian fatalities were up 5% on 2016 figures (470), and although cyclist fatalities were down 1% since 2016 (101), bicycle traffic had decreased by 5%, attributed to “natural variation”. Taking into account the waning “Tour De France” effect, for a Government eager to reduce motor travel in order to improve air quality and reduce obesity this is a trend heading in the wrong direction. The continuing strategy to instil in people the confidence to leave their cars at home is, therefore, of paramount importance to the Department.
The revamped Highway Code will provide refreshed focus on the practice of “close passing”, and promotion of the colourfully named “Dutch Reach” (the opening of a car door with the hand furthest from the handle to promote a natural check of the blind spot). In tandem with the publication (also last Thursday) of the National Standard for Cycling Training, a non mandatory comprehensive guide to competent and safe cycling, it is hoped that the casualty statistics will improve in 2019. Pressure groups Cycling UK and Living Streets have proclaimed the proposed changes a “major victory”.
On the other hand, a consultation on whether the offence of causing death by careless or dangerous driving should be expanded to include cyclists as part of the drive to safeguard pedestrians in particular, closed on 5 November 2018. This follows the death on 28th August of pedestrian Sakine Cihan, the first fatality involving an electric bicycle, and campaigning by Matt Briggs whose wife, Kim, was killed by a cyclist in 2016.
This thrusts the possibility of compulsory insurance for cyclists back into the limelight. For riders of electric bicycles at least this seems highly likely following the proposed review of the EC Motor Insurance Directive as just one consequence of Vnuk and the update of the definition of “motorised vehicle” to include electrically powered assisted cycles (EPACs).
Comment
Rather than a further shifting of the burden of diligence onto motorists, we see this development as simply part of the Government’s rolling campaign to improve road safety, and also as a part of more recent efforts to reduce traffic pollution on the streets of the UK. As the number of “catastrophic” pedestrian and cyclist casualties remains high, as a direct result of their high vulnerability as road users, any initiative which improves awareness and, as a consequence, the safety of those road users must be seen as a positive. With the heightening of awareness and promoting additional care when overtaking, turning at junctions and on the opening of doors the number of serious spinal and brain injuries is expected to decrease, thus reducing the number of claims in these areas.
For further information or assistance on any of these issues please contact:
Charles Heppenstall
Partner
This email address is being protected from spambots. You need JavaScript enabled to view it.
DDI: 0113 213 4075
Image ©iStockphoto.com/Nikada
An Introduction to Cooling - Flora Midgley, Bolt Burdon Kemp
06/12/18. The NHS uses controlled cooling to treat newborn babies who suffer brain injuries following a deprivation of oxygen during birth/labour. I am a solicitor at Bolt Burdon Kemp in the Child Brain Injury team, I specialise in compensation claims for children who have suffered brain injuries - as many of our clients suffer these injuries at birth, often because of oxygen deprivation. Around 1 in 500 newborn babies suffer from a lack of oxygen at the time of the time of their birth.[2]
The team at Bolt Burdon Kemp only act for children who have suffered brain injuries, that’s why they are experts in this field. They are dedicated to investigating claims where substandard medical treatment has caused a baby to suffer a brain injury.
Brain injuries suffered at birth can have a devastating impact on the injured child and their family. The cooling treatment option is hugely important.
When does cooling take place?
NHS guidance states that the procedure can be offered routinely as a treatment option for selected newborn babies with brain injuries caused by oxygen deprivation.[3].
In the majority of the following instances, infants born at 36 weeks of gestation and older would qualify for cooling:
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An apgar score of
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Need for resuscitation and oxygen after 10 minutes of birth
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Infants with moderate...
Image ©iStockphoto.com/mihhailov
Cavanagh v Witley Parish Council [2018] EWCA Civ 2232 - Peter Wake, Weightmans LLP
04/12/18. In a recent decision which contains some salutary learning points for defendants, the Court of Appeal has found the defendant local authority to be liable to the claimant for a tree that fell onto the highway and collided with the bus he was driving.
In January 2012, after stormy weather during the night, a lime tree some 25 to 30 metres high fell onto the adjoining A283. The tree collided with a bus which was being driven by the claimant and he was badly injured. The tree was subject to inspections every three years by a tree surgeon appointed by the local authority. It had been inspected in 2006 and 2009 and no defects were found to be present. The cause of the fall was decay that had begun to develop after the 2009 inspection so the local authority was unaware of it.
At first instance, the claimant succeeded. The judge accepted the evidence of the claimant’s tree expert who stated that the tree was in a high risk position as it was located in a very busy area and next to a main road. Therefore, given its size, location and potential to cause very serious harm, it should have been inspected no less than every two years and, had this happened, this more frequent inspection regime would have identified the decay and prevented the accident.
The local authority appealed and the thrust of the appeal was that it had been...
Image ©iStockphoto.com/aseev
Motor Insurance / MIB Update - Julie-Anne Luck, 9 St John Street Chambers
16/11/18. The potential impact of recent UK and European decisions upon the cost of motor insurance and claims following road traffic accidents cannot be underestimated. The industry is awaiting appeals on two important decisions, which have caused ripples for insurers and the MIB alike.
The obligation on the UK courts is to construe the Road Traffic Act 1988 in accordance with the relevant European "Motor Insurance Directives“, the most recent of which being the Sixth Directive (2009/103/EC) ("the 2009 MID") . Article 3 of the 2009 MID sets out the minimum compulsory insurance requirements, and requires member states to “ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance”.
Most are already aware of Vnuk v Zavarovalnica Triglav D. D. [2016] RTR 188, the so- called “Complete Game-Changer” for the insurance industry (see the Department of Transport Technical Consultation on the Motor Insurance, which commenced December 2016). The Government has recently maintained that “Extending the scope of the mandatory insurance requirement to vehicles used only on private land… … raises the possibility that motorised children’s toys and ride-on lawnmowers could require insurance”, and would “increase insurance premiums in the UK by £2 billion per year” - see https://publications.parliament.uk/pa/cm201719/cmselect/cmeuleg/301-xxxiii/30107.htm
The recent case of Lewis v. Tindale, MIB and Secretary of State for Transport [2018] EWHC 2376 (QB) has brought further headache to the MIB. The facts were as follows:
On 9 June 2013, Mr Lewis was a pedestrian on Mr Tindale’s private farm. Mr Tindale thought Mr Lewis was there to steal scrap metal. Mr Lewis suffered catastrophic injuries in a motor accident when he was hit by Mr Tindales’s 4X4 vehicle, whilst he was still on his private farm. Mr Tindale was uninsured for the claim, and so he, the MIB and the Secretary of State were all named as Defendants in Mr Lewis’ claim for damages.
Firstly, and unsurprisingly, the decision confirmed that any judgment Mr Lewis might obtain against Mr Tindale was not a liability which was required to be insured under the RTA 1988, because it occurred on private land. As such, the MIB sought to maintain that it had no contingent liability to Mr Lewis pursuant to the Uninsured Drivers Agreement 1999.
The Honorable Mr Justice Soole noted “the CJEU has made it unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land. This is implicit in Vnuk and explicit in subsequent decisions” (Paragraph 96).
On whether Mr Lewis could bring a claim against the MIB, Mr Justice Soole stated:
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“the MIB is an emanation of the state for the full measure of the Article 3 obligation” (paragraph 101).
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That both in the current case, and in Farrell v Whitty [2017] EUECJ C-413/15 (Farrell 2), “… there has been an incomplete implementation of the obligation placed on member states by Article 3. In my judgement in each case the effect of European law is to treat the designated compensation body as if the obligation imposed on the state had been delegated to it in full” (paragraph 131).
So in summary the judgment concludes:
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The provisions of the MID 2009 have direct effect against the MIB,
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The MIB is obliged to satisfy any judgment Mr Lewis may obtain against Mr Tindale, despite the liability not requiring insurance pursuant to the RTA 1988.
However, the Honourable Mr Justice Soole points out that the “minimum requisite cover” is EUR 1M per victim (see paragraph 134).
Lewis v. Tindale, MIB and Secretary of State for Transport is subject to appeal by the MIB, the outcome of which is eagerly awaited.
Also due for appeal is Cameron v Hussain & Liverpool Victoria Insurance [2017] EWCA Civ 366, which is listed before the Supreme Court on 28th November 2018. This was the case in which a Claimant sought to amend her Claim Form to substitute the First Defendant (who had turned out to be a fictitious person) for “the person unknown driving vehicle registration number...”.
The court of Appeal concluded that this was permissible, in a decision which exposes insurers to claims they previously thought would fall to the MIB under the Untraced Drivers Agreement. The decision has also provoked a fear that it will increase the scope for fraud – with policies be opened for fictitious drivers with the purpose of claiming against an untraced driver. I understand that some insurers have very large reserves on some claims, riding on the outcome of this final appeal.
Julie-Anne Luck
Barrister, 9 St John Street Chambers
This email address is being protected from spambots. You need JavaScript enabled to view it.
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PI Practitioner, November 2018
16/11/18. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Surrey County Council v Hilliard (2018)
This month we consider the decision in Surrey County Council v Hilliard (2018) where the application of s.41 of the Highways Act 1980 was considered. In this case, the Defendant local authority appealed against a district judge's decision which held that it was in breach of section 41 of the Highways Act 1980. S.41 imposes a duty upon the Defendant, as the local highway authority, to maintain the highways at public expense...
Image ©iStockphoto.com/EmiliaU
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