BEWIGGED & BELLIGERENT ON:

 LOVING LIABILITY- SOME TIPS FOR WINNING ON LIABILITY BEFORE TRIAL IN RTAS

-This forms the first part of an ongoing series of articles on trial advocacy and case theory, along with anything else the author might be asked to address-

DISCLAIMER

1. This wouldn’t be a Barrister’s article without starting with a disclaimer. None of what I’ll be talking about below replaces the extremely good advice that a well-pitched offer, part 36 or otherwise, will save either party time, expense, and fuss. However at the pleading stage and to the door of the court, making sure you present your case in the best light might just be the thing that tips the other party into settling.
2. Remember the magic of an RTA is that you are litigating over a few split seconds of a mundane, every day event that just happened to go wrong.

WHO IS THIS FOR?

1. Ideally this is written for the junior solicitor or file handler, looking at an RTA brief and thinking, “How do I work this out? How do I plead this?” but that is not to say that old hands might not learn something – or find a good excuse to comment on LinkedIn. I am a great believer that the best way to learn is through discussion. Without giving away all of my practice, these are a few of the things I do when prepping anything involving an RTA.
2. There are no dirty tricks below, remember the overriding objective at all times.

HIGHWAY CODE

1. Excellent, you know the Defendant was negligent, they’ve done something bad, they’ve hit your client’s car somehow, but how do you demonstrate their so obvious negligence?
2. Given that the Highway Code contains the rules of the road, do not be shy about referring to it. It’s freely available online, it’s entirely admissible, and best of all you can even plead from it. I have seen, used, and referred to with great effect the Highway Code in trials.
3. Obviously you are pleading in law, but there is no reason you cannot refer to it when pleading negligence. What sounds better? “The Defendant reversed into the Claimant’s car.” Or “The Defendant with disregard for rule 202&203 of the Highway Code reversed into the Claimant’s Car in that…” Remember a person with a driving license is unlikely to acknowledge not knowing the rules of the road. If you can start by finding what’s gone wrong in terms of the Highway Code this is often your best first step.

A LOCUS IN TIME

1. Chances are you’ll know the location of the accident either with some precision, or at least the road and that it was probably near the shops, or was it the post office…
2. I cannot recommend highly enough, taking five minutes to drive through (virtually) the area on Google Maps, do it as both C and D.  Whether it’s a country road or The Strand, you won’t get an understanding of what happened without it.
3. Remember you can also travel back through time, Street View may not have every year, but you’ll be surprised what it can turn up. That bus stop may have moved between 2018 and 2020, the road markings might have changed, more than a few times I’ve discovered that we’ve actually got photos of the now long vanished roadworks that are mentioned by everyone in their statements on Google Maps. You can get different views and a far better understanding of the road layout this way (see below), you can even find the layby that they say they pulled up in afterwards.
4.  An additional note, when you’re eagerly screen-capping what again is a readily accepted and admissible source of information, do try for colour, do try for the highest resolution possible, and if feeling especially brave, perhaps even include hyperlinks if sending an e-bundle.

NO ONE UNDERSTANDS ROUNDABOUTS

1. Roundabouts get a very special mention here. For two reasons, they are the ideal illustration of imperfect memories, and the very regular situation where both drivers are absolutely sure they were doing the right thing, but also they illustrate (particularly a few around London) that road markings can be themselves a bit ambiguous at times. Both of these things might be good reasons to realistically assess your case, and start thinking “give there’s a risk we might lose, is a bird in the hand better than two in the bush?” You might suddenly realise that there’s a school nearby, which might completely alter traffic conditions completely at certain times of day. Litigation is expensive, and the preparation is worth it.

SPEED, DISTANCE, TIME

1. Just as with all the information in this guide, it is freely availably online. Now I fully accept that people are imperfect judges of speed, but you are likely to have a rough idea of what the speed limit was, and at least what the speed of one of the drivers was. You can easily find stopping distances in terms of car lengths, metres or feet. Why is this useful? It’s very rare that two vehicles collide front on and come to a complete stop, so even accounting for a glancing blow, you can get a good idea of how far a vehicle might travel before coming to a complete stop. Remember in the above example, the other vehicle is going the other way as well! I have come across quite a few cases where a witness has claimed they stopped “instantly.”

A CAR FOR ALL SEASONS

1. The weather in our jurisdiction is famously mercurial, I leave to your own assessment how much of our time we spend in a green and pleasant land.
2. On this basis, it might seem obvious, but at night, cars will have their lights on, a driver might even only see the other set of lights. Visibility can be affected by all sorts of factors, but don’t forget overhanging trees (I wonder if there might be leaves on the road?), weather – good and bad can affect driving. By example I’ve won cases on asking for judicial notice to be taken that the sun sets in the west, and at that time of year and day, the sun might be rather low – and possibly in someone’s eyes.

WHAT IS BEING DRIVEN?

1. Getting the obvious out of the way first, larger vehicles handle differently to smaller ones. They are harder to turn, they are slower to stop (and heavier if loaded), they have different angles of vision.
2. I’ve lost count of the number of times I’ve seen pleadings or a witness statement to the effect of “I couldn’t have hit C’s moped, because I felt nothing in my Challenger Tank.”
3. Vehicle widths, lengths and weights are all freely available online in terms of their specifications, if you aren’t sure of what something is, look it up, and consider that locus again. A bus isn’t going to take that tight country corner like a mini.

DOODLE TO VICTORY

1. While overheads, locus photos, even the odd dashcam are extremely helpful, they often work best in conjunction with a simple sketch plan, but “Alex,” you say, “I do not get paid by the hour, where shall I obtain such a thing?” You might be pleasantly surprised to discover that a search for “google maps without pins” might just find that. Presenting you with an easily screencapped picture that you can of course send to your client and even if they draw on it in MS Paint, gives a very clear and exhibitable understanding. You might even want to exhibit a blank one for Judge to draw on.

CONCLUDING REMARKS

1. I hope that this has been useful, I’d love to hear your comments, and hopefully some of these thoughts from Counsel on things he’s seen work, might just help you.
2. Next time, liability at trial.

ALEX LAWSON © 2023

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the author, any member of Chambers or by Chambers as a whole. No attempt has been made to provide an exhaustive review/account of the law in this area.