CHAPTER 3: Road Traffic and Other Highway Claims: The Law
ESTABLISHING LIABILITY FOR ROAD TRAFFIC ACCIDENTS
The duty of one road user to another
All road users have a duty of care to avoid causing injury to others who it may reasonably be antici-
pated may be injured by their actions or failure to act. The term ‘road user’ includes not only those
driving motor vehicles or riding motorbikes or bicycles, but also their passengers, pedestrians and
owners of roadside property, such as signs and bollards, and the highway itself, which in most
cases will be the local highway authority.
Clearly, a driver has a duty to drive carefully so as not to cause injury to his passengers or other
road users, but other examples include the duty of a driver not to park his vehicle where it might
constitute a danger, the duty of a pedestrian not to step into the path of a vehicle, and the duty of
the highway authority to keep the highway in good repair.
This duty of care is well established and, in the majority of cases, will not be in dispute between the
parties.
The standard of care
The standard of care is that of the ordinary skilful driver, and it is not lowered to take account of the
fact that the driver is a learner driver (see Nettleship v Weston [1971] 2 QB 691).
A driver is not entitled to assume that other road users will always exercise reasonable care and
skill, but he is not ‘bound to anticipate folly in all its forms’ (London Passenger Transport Board v
Upson [1949] AC 1555). Neither is the duty so high that it equates to a guarantee of the claimant’s
safety.
Ahanonu v South East Kent Bus Company Limited [2008] - claimant had been trapped between
the defendant’s double-decker bus and a metal bollard, the Court of Appeal reversed the finding
that a driver of the bus had been negligent. Lord Justice Laws said that the judge had imposed a
counsel of perfection on the bus driver, thereby distorting the nature of the driver’s duty, which was
no more or less than a duty to take care.
In Smith v Co-operative Group Ltd & Another [2010] - C cycled out in front of D, D did not sound
his horn. Court of Appeal demonstrated its unwillingness to impose a standard of driving on mo-
torists which amounts to a counsel of perfection. It held that the defendant had not been negligent
in failing to sound his horn at the same time as being involved in emergency braking and swerving
to avoid a collision.
Breach of duty
Each case decided on the facts - It is for the court to decide whether there has been any breach of
the duty to take reasonable care in relation to other road users
Look at the delegated legislation and Highway Code
Are there any relevant criminal convictions?
Evidence of the defendant being convicted of a relevant criminal offence is of particular importance
to the claimant’s solicitor in order to establish breach of duty/a relevant conviction of the claimant
may assist the defendant’s solicitor in negating liability or establishing contrib
Conviction will be relevant where it relates to how the accident was caused or to the quantification
of damages. Look for:
(a) Vehicle maintenance:
(a) S40 of the Road Traffic Act 1988 (RTA 1988) - offence to use, cause
or permit another to use a motor vehicle on a road when its condition is such that
its use involves a danger of injury to any person.
(b) S41A of the RTA 1988 - a person who uses a motor vehicle, or causes or permits such a
vehicle to be used on a road when the vehicle does not comply with regulations governing
the construction and use of brakes, steering-gear or tyres, is guilty of an offence. Current
regulations relating to tyres specify a minimum tread depth, prohibit the mix of radial and
cross-ply tyres, and require tyres to be inflated to the correct pressure for the vehicle.
(b) Poor driving:
(a) Speeding. Driving at a speed in excess of the limit is not necessarily in itself sufficient evi-
dence of negligence (Quinn v Scott [1965] 2 All ER 588). Neither will driving below the
speed limit automatically negate liability (Richardson v Butcher [2010] EWHC 214 (QB)).
Under the Highway Code, drivers should adjust their driving to the prevailing conditions and
circumstances. So they must take account of the weather, available light, road layout,
weight of traffic, parked vehicles or other obstructions, the presence of cyclists and motor-
ESTABLISHING LIABILITY FOR ROAD TRAFFIC ACCIDENTS
The duty of one road user to another
All road users have a duty of care to avoid causing injury to others who it may reasonably be antici-
pated may be injured by their actions or failure to act. The term ‘road user’ includes not only those
driving motor vehicles or riding motorbikes or bicycles, but also their passengers, pedestrians and
owners of roadside property, such as signs and bollards, and the highway itself, which in most
cases will be the local highway authority.
Clearly, a driver has a duty to drive carefully so as not to cause injury to his passengers or other
road users, but other examples include the duty of a driver not to park his vehicle where it might
constitute a danger, the duty of a pedestrian not to step into the path of a vehicle, and the duty of
the highway authority to keep the highway in good repair.
This duty of care is well established and, in the majority of cases, will not be in dispute between the
parties.
The standard of care
The standard of care is that of the ordinary skilful driver, and it is not lowered to take account of the
fact that the driver is a learner driver (see Nettleship v Weston [1971] 2 QB 691).
A driver is not entitled to assume that other road users will always exercise reasonable care and
skill, but he is not ‘bound to anticipate folly in all its forms’ (London Passenger Transport Board v
Upson [1949] AC 1555). Neither is the duty so high that it equates to a guarantee of the claimant’s
safety.
Ahanonu v South East Kent Bus Company Limited [2008] - claimant had been trapped between
the defendant’s double-decker bus and a metal bollard, the Court of Appeal reversed the finding
that a driver of the bus had been negligent. Lord Justice Laws said that the judge had imposed a
counsel of perfection on the bus driver, thereby distorting the nature of the driver’s duty, which was
no more or less than a duty to take care.
In Smith v Co-operative Group Ltd & Another [2010] - C cycled out in front of D, D did not sound
his horn. Court of Appeal demonstrated its unwillingness to impose a standard of driving on mo-
torists which amounts to a counsel of perfection. It held that the defendant had not been negligent
in failing to sound his horn at the same time as being involved in emergency braking and swerving
to avoid a collision.
Breach of duty
Each case decided on the facts - It is for the court to decide whether there has been any breach of
the duty to take reasonable care in relation to other road users
Look at the delegated legislation and Highway Code
Are there any relevant criminal convictions?
Evidence of the defendant being convicted of a relevant criminal offence is of particular importance
to the claimant’s solicitor in order to establish breach of duty/a relevant conviction of the claimant
may assist the defendant’s solicitor in negating liability or establishing contrib
Conviction will be relevant where it relates to how the accident was caused or to the quantification
of damages. Look for:
(a) Vehicle maintenance:
(a) S40 of the Road Traffic Act 1988 (RTA 1988) - offence to use, cause
or permit another to use a motor vehicle on a road when its condition is such that
its use involves a danger of injury to any person.
(b) S41A of the RTA 1988 - a person who uses a motor vehicle, or causes or permits such a
vehicle to be used on a road when the vehicle does not comply with regulations governing
the construction and use of brakes, steering-gear or tyres, is guilty of an offence. Current
regulations relating to tyres specify a minimum tread depth, prohibit the mix of radial and
cross-ply tyres, and require tyres to be inflated to the correct pressure for the vehicle.
(b) Poor driving:
(a) Speeding. Driving at a speed in excess of the limit is not necessarily in itself sufficient evi-
dence of negligence (Quinn v Scott [1965] 2 All ER 588). Neither will driving below the
speed limit automatically negate liability (Richardson v Butcher [2010] EWHC 214 (QB)).
Under the Highway Code, drivers should adjust their driving to the prevailing conditions and
circumstances. So they must take account of the weather, available light, road layout,
weight of traffic, parked vehicles or other obstructions, the presence of cyclists and motor-
