PERSONAL INJURY LITIGATION COURSE

ROAD TRAFFIC CLAIMS

FIRST INTERVIEW ISSUES
1. Limitation of actions;
Claimant Solicitor (CS) must identify when the limitation period of 3 years had end, this can be
sourced by the filing of document in his possession.
s.38 Limitation Act (1980) (LA) personal injury includes any disease and any impairment of a
person’s physical or mental condition.
Primary Limitation Period - ss.11 and 12 LA if the claim includes negligence, nuisance or breach
of duty which consist with a personal injury then the limitation of 3 years commenced from the
date;

 on which the cause of action accrued

 knowledge of injury s.11(4)
This action does not include the date on the cause of action s.2 LA.
Knowledge s.14 LA identify the claimant has reasonable /knowledge that;

 Injury was significant (1)(a)

 Injury was attributable in whole or part (1)(b)
 Identity of the defendant (1)(c)
 Act or omission of that person other than the defendant (1)(d)
Note: In the circumstance of expiration, the claimant is not prohibited to commence a claim but
if he chooses to do so it would incur the defendant to struck the claim off as it is statute barred.
However, the Claimant can disapply this limitation under s.33 LA to allow the action to proceed.
s.33(3) LA factors to consider;

 Length, reasons for the delay

 Evidence adduce or likely to be is less compelling than if it was brought within the time
frame
 Defendant’s conduct
 Duration of any disability
 Extent to which the claimant acted promptly and reasonably
 Steps taken to obtain; medical, legal or expert and the nature of advice received.
Failure to ascertain the correct limitation date can cause negligence on the solicitor behalf, to
avoid such routinely checking the dates on every file he is involved in as the expiration date can
provide the defendant with a plausible defence.
SOLICTIORS INITIAL INSTRUCTIONS – Check the date of the cause of action! Verify the limitation
period from this date and mark it. If the limitation has already been expired then the solicitor
should take this into account when conducting a risk assessment on the case where the
claimant cannot reply on,

 later knowledge or s.33

NB! The court cannot extend the limitation period before it has expired but there are options
available where more time is required;

 Defendant agreement not to plea limitation defence (Unlikely)

 Standstill agreement – where the defendant agrees not to reply on the defence from a
specified date, until he serves the claimant a month’s notice to restart the clock
 Commence protective proceedings
 Claim form has not been served within 4 mths CPR Rule 7.5(2)
 Claimant solicitor should contact the defendant solicitor promptly to advise on
the situation
 C and D follow the relevant pre-action protocol within the time limits
 If the 4 mth time limit is about to expire C solicitor can make an interim
application under CPR 7.6 for an extension.

2. Funding – Reference subject handbook

3. Investigate the claim and the preliminary steps

Pre-Action Protocol;
 Personal Injury – Fast Track Claims.
PAP 5.1 C should set D 2 copies of the Letter of Claim
5.3 Contains a clear summary of the facts and nature of injury
6.2 D reply within 21 calendar days
6.3 D’s (insurer) max 3 months from acknowledgement to investigate
6.5 If D denies liability then he must put forward his version of events as a
response
 Disease or illness – Generally all PI claims which complex and not low value are making
it unsuitable as a fast track case
 Resolution of Clinical Disputes – Hospital claims, medical claims etc.
PAP 3.2 (b) Obtain health record
3.3 Request copies for C clinical records
3.4.1 Copies should be provided 40 days of request
3.14 After receipt and analysis of records if C deem a claim then a letter of claim
should be sent to D as soon as practicable
3.1(a) Clear summary of facts and allegations of negligence outlined
 3.24 D has 4 months to respond.
 Low Value RTA – Where the value is no more than 25k, loss of amenity 1k and CNF was
sent after 2013. It has 3 stages.
 Low value PI Employers and Public Liability claims
Identify the Defendant;
Generally straightforward but the CS need to address it in proceedings. As this is utilized to
identify the D’s insurer via:
RTA claims – Establish; Driver, his insurance position, owner of vehicle and his insurer.
Driving in the course of employment – Claim is usually against the employer, if
unsure if he was in the course of employment then sue both.
Insured drivers – Reg 3 European Communities (Rights against Insurers) Regs
2002 where the C can issue action against the insurer alone or in addition the
driver
Invalid Insurance Road Traffic Act s.151-2 – insurer can void the policy if they do
not cover it
Uninsured Drivers – after 2015 then application should be made to the Motor
Insurer’s Bureau, if they deny access then action should be made against the
driver.
Untraced Driver – unable to start proceedings, then applications should be made
to the Motor Insurers Bureau under the 2017 agreement
Acquiring evidence for quantum.
To place the individual in the position they would have been had the incident not happen which
is dependent on;
Loss of earnings
Pain, suffering and loss of amenity
Special damages

4. PAP on low value RTA, Employer’s Liability and Public Liability Claims.
Paragraph 4.1 Claim applies where;
a) Claim for damages arise from RTA where the Claim Notification Form (CNF) is submitted
on or after 2013
b) Includes PI damages
c) Claimant value no more than Protocol upper limit para 1.2
 25k on accident occurs on or after 2013
 10k for accident occurs on or after 2010 or before 2013
 d) Small claims track could not be used for the claim
3 STAGES FOR THE RTA PROTOCOL
Stage 1
1. C send CNF to D’s insurer electronically
2. At the same time – C sends D a defendant only CNF by first class post
3. D’s insurer must send the C an electronic acknowledgement then day after CNF was
received
4. D’s insurer must then complete the Insurer Response section on CNF and send to C
within;
 15 days for RTA
 30 days for Employers Liability
 40 days for Public Liability Claims
5. If insurer admit liability then stage 1 fixed costs must be made within 10 days of
receiving stage 2 settlement pack
6. No response, deny liability, alleged contributory negligence or suggest CNF is
inadequate then the claim exist protocol and C may continue existing proceedings
7. Before the end of stage 1 insurer must apply for CRU certificate of recoverable benefits
STAGE 2 – Applicable if insurer accepts liability
1. C obtains medical report (No time limit)
2. Value of claim and C sends settlement pack to insurer which included;
 Medical report with supporting evidence
 Evidence of all special damages
 Witness statements (C and D)
 Disbursements receipts
 Any offer to settle claim
3. Insurer must respond within 15 days to either accept or make a counter offer (Initial
consideration period)
4. No settlement then 20-day negotiation period which can be extended by party’s
agreement. Any offer to settle would include stage 2 fixed cost and disbursements
5. No settlement then C can commence court proceedings pack
6. No response from insurer then the claim exist protocol.
STAGE 3
1. C issues proceedings under Part 8 CPR, PD 8B
2. D must acknowledge service within 14 days
3. Court will notify parties of the date when damages shall be assessed.
SOFT TISSUE INJURY CLAIMS Para 16A RTA Protocol - Claim by occupant of the vehicle on a
significant physical injury which caused soft tissue damage as it includes claims of minor
psychological injury.
Additional requirements per para 3.2;
 Medical report used and cost usually one report is required
 Independent medical expert
 Offers made only after fixed cost medical report has been obtained
Require the D account of the incident usually included in the CNF form.
Stage 2 settlement pack along with the previously mention will include fixed cost medical report
and any invoice relating.
OFFERS TO SETTLE – Claim had proceeded to Stage 3 hearing a Protocol Offer (Part 36) which;
 Set out in CPP
 Final amount offered from both parties
R36.26 offer is deemed to be made on the 1st business day after CPP is sent to D and is treated
as being exclusive of all interest.
Cost Consequences following judgement at stage 3 where the C is awarded;
 Less than or equal damages – C has to pay D stage 3 fixed cost and interest
 More than D offer but less than C offer – D pays C fixed cost
 Equal or more than own offer – D pays damages interest not exceeding 10% above base
rate starting on the date the offer was made along with fixed cost and additional 10%
awarded R 36.17(4)
CLAIM EXITS PORTAL
Once exit the portal it cannot subsequently re-enter the process. Fix cost would be applicable
Section III A CPR Part 45 secondary fixed cost scheme for cases not included in multi-track.
Qadar v Esure (2016) CA stated the cost is found in part 45 and it can increase depending on the
stage of proceedings or settlement.
Cost consequences of part 36 offers

 Acceptance of an offer within the relevant period is entitled to fixed cost dependent on
the stage has reached when notice of acceptance is served R 36.20(2)
 C accepts the offer after relevant period then C is entitled to fixed cost till relevant
expiry date and C is liable for D cost from the date of expiry to acceptance date R
36.20(4)
  Protocol offer is made and subsequently accepted after the claim exited the;
 C is entitled to stage 1 and 2 fixed cost
 C liable for D cost from the date of acceptance
Cost consequences following judgement for;
 More advantageous than Part 36 offer and a split order cost. C is entitled to fixed cost
for the stage the period has expired and C liable from expiration till judgement
 Failure to gain a judgement more advantageous than D protocol offer. C is entitled to
Stage 1 and 2 fixed cost and C is liable to cost from date of protocol offer until
judgement.
Claimant unreasonable failed to follow Protocol – R 45.24
Escaping Fixed Cost CPR R 45.29J - Exceptional circumstances for the court to consider a claim
of cost that is greater than the foxed recoverable cost. (Rare) If such circumstances exist then
the court will assess the costs but only is allowed if the assessment is greater than 20% of the
fixed cost.
LIABILITY ISSUES AND NECESSARY EVIDENCE
1. RTA and Motor Insurance Bureau
Requirements that needs to be established are;
 Common law duty
Drive with reasonable care and skill as would an ordinary skillful driver. This standard will not
be lowered for learner drivers Nettleship v Weston. (Includes Motorists, Pedestrians,
Passengers, Roadside owners etc.)
 Breach of Duty
Driver has fallen below the standard of care required as each case shall be assessed on its own
facts. Solicitor’s should consider whether there are any;

Relevant criminal convictions (ref pg 29)

Highway Code which is a useful resource in determining whether the driver had
fallen below the standard of care owed to other road users. s.38(7) RTA (1988)
breach of the Highway code does not in itself give rise to civil liability nor does it
create a presumption of negligence as it will be merely circumstantial in the
court assessment of a breach of duty.
 Res Ispa Loquitur – The facts of the case speak for itself where the C is unable to
adduce the evidence but it able to show;
 Accident occur in the ordinary course of events (Negligence occurred)
 Whatever inflicted or caused the damage was in the sole management
and control of the D.
 Causation
“But for” Test. This can be disputed where the D argues;
 Claimant negligence that cause the breach
 Accident could not have cause the injuries complained of. Insurers defence on low
velocity impact claims.

 Contributory Negligence (CN)

s.1(1) Law Reform (CN) Act (1945) – Where anyone suffered damage as a result partly their own
fault, then damages recoverable shall be reduced accordingly to what the court deemed to be
just and equitable.
D must prove on the balance of probabilities that the C;
 Was at fault
 Caused the injury suffered and
 Just and equitable for C damages to be reduced which the court shall assess based on
the blameworthiness of each party actions.

CONTRIBUTORY NEGLIGENT PERSON REDUCTION OF DAMAGES

Pedestrian 50% unless the pedestrian suddenly moved into
the path way which the driver could not have
anticipated
Children Very young children and rarely found negligent

Driver or Passenger fail to wear a seat belt

Where the injury would not have happened – 25%
Injuries would have been less severe – 15% Froom
v Butcher
Motor cyclist fails to wear crash helmet Damages – 15%
Helmet chin strap not fastened – 10%
Passenger allow himself to go in a vehicle 20%
he should not be in e.g. drunk
Cyclist – Have no legal compulsion to wear No case to set a percentage
a helmet

Insurance - s.143(1) RTA (1988) all motorist is required to have motor insurance. The minimum
protection the can be afforded is known as RTA policy or third-party policy which covers;

 Death or bodily injury to a third party

 Damage to property belonging to a 3rd party up to 1 mil and
 Emergency treatment immediately following the accident
s.152 RTA (1988) provides that insurers must be given 7 days’ notice from the commencing of
proceedings, if this is not given the insurer is not obliged to pay out. Essential that the Claimant
Solicitor inform the D’s insurer.
If the Defendant is not insurer the C may be able to claim compensation from Motor Insurers
Bureau (MIB)
Motor Insurers Bureau (MIB)
Available to uninsured drivers or untraceable drivers.

 The Uninsured Drivers Agreement 2015

MIB is obliged to satisfied any judgement made against the D which was unsatisfied for more
than 7 days subjected to exceptions, limitation and preconditions via settlement before the
commencement of proceedings.
Claimant need to make and application to MIB;
 Claim is no more than 25K within the low value RTA Pre-Action Protocol
 Complete Claim Notification Form (RTA1)
MIB Declines to settle: the MIB must be named as the second D
Exclusions – MIB is not obliged to satisfied compensation claims where,
 C is entitled to receive or demand payment or indemnity in respect of losses from any
person except in Criminal Injuries Compensation Authority
 Person suffering death, injury or loss was voluntarily allowed himself to be in the vehicle
before the start of the journey or had a reason; like stolen or without insurance
Assignment of judgement and undertakings – Clause 15 of agreement MIB is not oblige to
settle unless C is assigns MIB or undertake to reply MIB any part of the judgement which is set
aside.

 The Untraced Drivers Agreement 2017

Accidents on 1st March 2017 prior accidents are governed by older agreements. It is applicable
where;
 Claim has been caused by or arisen out of the use of a motor vehicle on the road
 Liability which require coverage of policy of insurance
 Liable person is unidentified person
 Claim is made within the time limits for victims of identified drivers
Cameron v Husain Liverpool Victoria Insurance Co Ltd (2017) – where the vehicle is insured and
the registered keeper are known but the driver is not, then legal proceedings are made against
the unnamed driver. If successful s.151 RTA will apply and the insurer would have to satisfy the
judgement.
Exclusion and Limitation – Agreement is not applicable same as 2015 exclusion
MIB is not liable for claim for damage property under Clause 7 unless;
a) Award for significant personal injury paid to any C in respect of the same event
b) Loss incurred for damaged in excess of 400
Obligations on C – Clause 10 of 2017 has certain obligations for C to fulfil if not MIB can reject
the claim. However, C must fill out the MIB claim form along with further info, docs and written
authority as required. Previous agreements had strict time limits for claims to be reported to
the police.
MIB can only award if they satisfy the balance of probabilities and therefore they shall
investigate the claim and once they had given notice of the award it shall be paid within 14 days
of written confirmation.