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Which way would you decide?

including wills and probate
Clitheroekid
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Which way would you decide?

#476744

Postby Clitheroekid » January 28th, 2022, 1:17 am

I'm often interested to know what non-lawyers think is `just' in actual cases that have been decided by the courts, so I'd like to know people's thoughts on this one, the appeal of which was heard in the last few days.

The basic facts are as follows:

A driver, Fred,had an accident on a fairly fast stretch of country road, on a winter morning when a portion of the road had been frozen over causing black ice. His car came off the road, and he sustained injuries.

By chance, Fred had worked as a road gritter, and was familiar with that stretch of road. He was very concerned that any further vehicles coming at speed down that road would have a similar accident, so while he waited for the recovery vehicle he started to warn approaching vehicles by signalling to them to slow down.

When he'd called the police he'd stressed that the situation was dangerous, and he did so again when they arrived at the scene.

The police put out a warning sign, and then once the debris had been cleared away they removed the sign and left the site effectively as it had been prior to Fred's accident, i.e. covered in black ice and extremely dangerous.

Nobody remained to warn approaching traffic, no signs were left and nothing at all was done at the site to ensure that further traffic were warned of the ice.

Not long afterwards Jack was driving on the same stretch of road. An oncoming driver (Alan) lost control on the ice, and there was a head-on collision with Jack's car. Both Jack and Alan were killed. A passenger in Alan's car was airlifted to hospital and survived, though with very serious injuries.

There was an investigation and inquest and there was significant criticism of the police officers who had attended the initial accident for not following correct procedure. The IPCC concluded that three officers had a case to answer for gross negligence manslaughter and misconduct in public office, the file went to the CPS but there was no prosecution.

A police disciplinary tribunal found the officers guilty of misconduct and also that there were failures in operational training. The inquest gave a narrative verdict that more should have been done, that the highway authority and police should have taken steps to prevent further accidents, including placement of signs, requesting gritters and staying on site until they arrived, closing roads, and requesting appropriate support.

In the civil court case, brought by Jack and Alan's widows against the police and the highway authority, it was claimed that the police were negligent in carrying out their duties, and that they should have taken steps to prevent further accidents.

So, should the claim succeed? I realise that very few Fools, if any, will know anything about the relevant law, but I'm not looking for a legal opinion - I'm just interested to hear views as to which side in principle should succeed, and why.

Wuffle
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Re: Which way would you decide?

#476747

Postby Wuffle » January 28th, 2022, 5:28 am

'On a winter morning'.
They are driving, so they have seen winter before and I believe the highway code (familiarity with which entitles them to drive at all) reminds them.
All the rest is a sideshow.
Own fault.

W.

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Re: Which way would you decide?

#476752

Postby Gerry557 » January 28th, 2022, 6:31 am

A sad situation.

I have mixed initial thoughts. I'm not sure what the authorities are mandated to do anyway in the circumstances. I assume something due to the action.

Taking it to extremes do we end up with all roads closed every winter as the authorities are likely to be sued if there is an accident. I think that in some parts of the US they actually do this.

I suppose it depends on how unusual the particular frost issue is. Additionally how much pressure is on the authorities. One frozen road they might cope with but what about ten or fifty? Devon might only have 6 officers on duty in the region on nights.

Of course hindsight is always 20/20 and did the authorities do the same thing at the other nine or forty-nine similar locations and no one got hurt?

It's easy and a human trait to apportion blame. The driver does bear most of the responsibility for driving in the conditions. The other driver made a mistake too. What was his or her part. Are they being sued too.

I often run/walk on a portion of disused railway line. There is a 20m stretch that when cold is icy and slippy when the rest is fine. I do warn others when it is so. Should I report this section in case grandma slips and if the council don't do anything. Does that open them up to prosecution.

I suppose its a fine balance between personal responsibility and those that need warnings on KP nuts that they contain nuts. Still I remember someone winning a claim because the motor home crashed off the highway whilst they went in back to make a sandwich and the instructions didn't specifically say not too, whilst driving with cruise control on!

Midsmartin
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Re: Which way would you decide?

#476762

Postby Midsmartin » January 28th, 2022, 8:08 am

Yes, they should have left a warning sign, just as a courtesy.

No I don't think the failure to do so is as severe as manslaughter. Though it must depend on what police employees are instructed to do in such a situation. Should they have been well aware that to do so was standard procedure, or would it merely have been a bright idea?

Generally it's up to us to be aware of possible dangers on the roads. Though a young driver may have never experienced serious black ice, and we've all been young once.

Oh dear, I'm terrible at making black and white decisions.

RedSnapper
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Re: Which way would you decide?

#476768

Postby RedSnapper » January 28th, 2022, 8:45 am

For me it should succeed. The police authorities have already acknowledged failings and the coroner has critisised the inaction. Any wider implications are irrelevant for me. The CPS declined to prosecute but that was the individuals not the authority so maybe we can assume it was felt that the failings were not the individuals' but the authority's.

It seems to me that is a general acceptance that if a hazardous situation is known to a responsible party than there is a responsibility to mitigate any resulting risk. For example, if the local authority has known about a large pothole for some time but has done nothing about it then they may be liable for damage to cars that result. They are not required to ensure they know about every pothole immediately they occur, but where they do know about them they are expected to do something. The police and the highways authority were clearly aware of a particular hazard and could (and the inference is that 'by the book' they should) have taken action to mitigate that risk.

DrFfybes
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Re: Which way would you decide?

#476777

Postby DrFfybes » January 28th, 2022, 8:59 am

We don't know when in Winter, what time they left, the ambient temperature, was the ice melting or likely to melt (presumably not). Did they attempt to summon the Local Authority to attend, could the LA not atttend, did they leave the scene because there was danger to life elsewhere, or did their shift end in 20 min, it was cold, and they wanted to collect McBreakfast before they stopped serving them?

Having worked in highways there are protocols for dealing with an oil spill leaving a slippery surface, and these are to prevent further incident but also to protect the LA from further action. The Police did not follow their procedures, and were negligent in not erecting or arranging for[1] a warning if the road was in an unusually dangerous condition, ONCE they were aware of the situation.

However, in the real world, things can change. It was cold, it was winter, it was a country lane, drivers should expect it to be icy.

So IF they didn't arrange for a warning then the claim should succedd, IF the council lad said "yeah, I'm 5 mins away, you go deal with the knife wielding herbert in town" and then didn't show up, then the claim is not against the police.

Presumable there was no suggestion of prosecuting Fred (or Alan had he survived) for Careless Driving?

Rover110
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Re: Which way would you decide?

#476779

Postby Rover110 » January 28th, 2022, 9:02 am

So the police officers "on the ground" didn't follow procedure.

Are we allowed to know what the procedure was, that they didn't follow?
And (as is often the case with medical things) how likely following that procedure would have prevented/eliminated the deaths (rather than just prevented the police for being partially blamed for the deaths)?

How many kersquillions of procedures are there that police officers are expected to know about?
Yes back in the office (and in the absence of time/staffing pressures) one should expect the procedures to be identified and followed.

But my view is that the police are asked to do a difficult job in challenging circumstances and occasionally bad judgement-calls are made.
When those bad calls happen they should be admitted and apologised-for. But not punished (unless clearly reckless). And NEVER covered-up.

Had there not been the first incident, the police would not have been aware of the road condition so the fatal accident would still have happened. They did not make things worse but their actions / inactions.

Disclaimer: I am not a policeman and do not work for the police/government.

- Rover

uspaul666
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Re: Which way would you decide?

#476780

Postby uspaul666 » January 28th, 2022, 9:02 am

Hard to understand why Fred would use that road again with his understanding of road gritting, recent experience of how dangerous it actually is and awareness that other road users would be using it too. Since it was a head on collision, it’s possible that the occupants of the other car would have been safe without Fred on the road so perhaps by his reckless behaviour he is somewhat to blame for this sad outcome

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Re: Which way would you decide?

#476786

Postby redsturgeon » January 28th, 2022, 9:26 am

I think the widows' case should succeed. The police were aware of the danger and failed to protect the public.

Yes nobody is perfect and mistakes are made but procedures and rules were not followed and the widows deserve compensation for their loss.


John

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Re: Which way would you decide?

#476788

Postby CliffEdge » January 28th, 2022, 9:29 am

uspaul666 wrote:Hard to understand why Fred would use that road again with his understanding of road gritting, recent experience of how dangerous it actually is and awareness that other road users would be using it too. Since it was a head on collision, it’s possible that the occupants of the other car would have been safe without Fred on the road so perhaps by his reckless behaviour he is somewhat to blame for this sad outcome

This is also my experience of some jurors

Rover110
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Re: Which way would you decide?

#476799

Postby Rover110 » January 28th, 2022, 10:05 am

uspaul666 wrote:Hard to understand why Fred would use that road again with his understanding of road gritting, recent experience of how dangerous it actually is and awareness that other road users would be using it too. Since it was a head on collision, it’s possible that the occupants of the other car would have been safe without Fred on the road so perhaps by his reckless behaviour he is somewhat to blame for this sad outcome

Is there some misunderstanding here?
Fred wasn't involved with the fatal accident. That was between Alan and Jack.
Wasn't his only involvement an earlier accident which drew the police's attention to the condition of the road?

Or by temporarily warning other road users (while waiting for his recovery) did he assume full responsibility for the condition of the road then and until the ice had melted?

Lootman
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Re: Which way would you decide?

#476844

Postby Lootman » January 28th, 2022, 1:13 pm

If I were a juror on this case (knowing that cases like this do not usually have a jury trial) then I would probably take the view that this was an accident. Unfortunate but no real blame attached to any third party. All drivers have an obligation to drive according to the circumstances and most of the time there isn't a cop or Fred or a sign to tell you to be careful.

In any event if the claimants prevail here presumably it will just be a matter of the local authority paying out. That is, us, the taxpayers. The individual cops won't be on the hook. Or else the LA carries liability insurance?

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Re: Which way would you decide?

#476858

Postby didds » January 28th, 2022, 1:37 pm

Wuffle wrote:'On a winter morning'.
They are driving, so they have seen winter before and I believe the highway code (familiarity with which entitles them to drive at all) reminds them.
All the rest is a sideshow.
Own fault.

W.



does that just indicates there was a degree of culpability involved rather than total 100% ?

uspaul666
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Re: Which way would you decide?

#476901

Postby uspaul666 » January 28th, 2022, 3:33 pm

Rover110 wrote:
uspaul666 wrote:Hard to understand why Fred would use that road again with his understanding of road gritting, recent experience of how dangerous it actually is and awareness that other road users would be using it too. Since it was a head on collision, it’s possible that the occupants of the other car would have been safe without Fred on the road so perhaps by his reckless behaviour he is somewhat to blame for this sad outcome

Is there some misunderstanding here?
Fred wasn't involved with the fatal accident. That was between Alan and Jack.
Wasn't his only involvement an earlier accident which drew the police's attention to the condition of the road?

Or by temporarily warning other road users (while waiting for his recovery) did he assume full responsibility for the condition of the road then and until the ice had melted?

There was a misunderstanding, on my part. (Blush)

bluedonkey
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Re: Which way would you decide?

#476927

Postby bluedonkey » January 28th, 2022, 5:26 pm

I find for the plaintiff in their negligence suit but reduce the award by half due to contributory negligence by the driver.

Bminusrob
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Re: Which way would you decide?

#476953

Postby Bminusrob » January 28th, 2022, 6:57 pm

Interesting case, and as others have said, at times like this, the bereaved naturally want someone to blame. I can see both sides, and don't have anything to add to what others have said, except...

Two cases in the news earlier this week bring other interesting questions.

First, a madman attacks a woman with a knife. Someone who sees this happening takes action to try to stop this and other attacks. In this case he uses his car to disable the madman, who is killed as a result. The car driver is then arrested for murder. Is this correct? If, instead of using a car, he had hit the attacker with a handy stick and killed him, would he equally be charged with murder?

Second, there has been discussion about autonomous cars. If an autonomous car breaks the speed limit, or runs a red light, who is at fault?

Now, have you heard about "Trolleyology". Yes, it really exists. It is a subject of moral dilemmas, based on the following scenario: A runaway trolleybus (a bus on rails) is about to run down and kill five people. The only way of preventing the death of five people is to divert the points, in which case the bus will not kill the five people, but will certainly kill one other person who is on the track which the trolleybus will take if the points are changed. The lever to control the points is in your hand. You have seconds to decide what to do. If you pull the lever, you will probably be guilty of murder. What do you do?

Have a lovely weekend.

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Re: Which way would you decide?

#476977

Postby Maroochydore » January 28th, 2022, 10:26 pm

Bminusrob wrote:Second, there has been discussion about autonomous cars. If an autonomous car breaks the speed limit, or runs a red light, who is at fault?

Getting a bit off topic but as it stands a 'driver' is total responsible for the car and pasengers whether in motion or not.

Back to the original question. Years ago I had a smash where I approached a T junction on a country road. The area was heavy used by quarry trucks and the road surface was 'polished' (as it was described in court). I crossed the give way markings and side-swiped a car which had right-of-way.

The police were called and arrived from the same direction I had travelled in. At the junction they did the same thing, slid right across the markings and ended up in a grass bank on the opposite side of the road.

Clearly the road surface was dangerous but they didn't put up any warning signs either at the time or as they left (I was given a lift back to civilisation by them so know no signage was left). Therefore, based on my personal experience I would say the police were not negligent in failing to leave warning signs but would have been nice had they done so.

Just to close the story regarding the 'court' comment, I was prosecuted for 'due care'. My barrister asked the police driver whether he had taken 'due care'. He could hardly answer "No" so I was acquitted on the grounds that if a trained police driver couldn't handle the situation neither should it be expected that a normal motorist would. As I was leaving the police prosecutor was talking to my victim and I heard him say "I told you that would happen" which begs the question, why prosecute in the first case?

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Re: Which way would you decide?

#476979

Postby mc2fool » January 28th, 2022, 10:46 pm

Bminusrob wrote:Now, have you heard about "Trolleyology". Yes, it really exists. It is a subject of moral dilemmas, based on the following scenario: A runaway trolleybus (a bus on rails) ...

No, a trolleybus is an electric bus powered from overhead wires but is otherwise a normal bus, running on rubber tyres on normal roads.

You're referring to "the Trolley Problem" where, in fact, "trolley" is N. American for what we call a tram (they also call it a streetcar).

https://en.wikipedia.org/wiki/Trolley_problem
https://en.wikipedia.org/wiki/Tram
https://en.wikipedia.org/wiki/Trolleybus

In any case, the OP situation is not a trolley problem.

[End of OT interjection] :D

mc2fool
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Re: Which way would you decide?

#476982

Postby mc2fool » January 28th, 2022, 11:30 pm

Clitheroekid wrote:A police disciplinary tribunal found the officers guilty of misconduct and also that there were failures in operational training. The inquest gave a narrative verdict that more should have been done, that the highway authority and police should have taken steps to prevent further accidents, including placement of signs, requesting gritters and staying on site until they arrived, closing roads, and requesting appropriate support.

In the civil court case, brought by Jack and Alan's widows against the police and the highway authority, it was claimed that the police were negligent in carrying out their duties, and that they should have taken steps to prevent further accidents.

So, should the claim succeed? I realise that very few Fools, if any, will know anything about the relevant law, but I'm not looking for a legal opinion - I'm just interested to hear views as to which side in principle should succeed, and why.

Well, given the findings of the police tribunal themselves and the verdict of the inquest, it would seem clear that the claim should succeed. What would the police's defence be, that their own tribunal's conclusion was wrong? Or, yeah, ok, it was right but never mind?

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Re: Which way would you decide?

#476984

Postby Kantwebefriends » January 29th, 2022, 12:09 am

"a fairly fast stretch of country road" i.e. we expect people to speed like mad dervishes along this stretch?

But it's winter and icy: shouldn't they adjust their habits?

Otherwise the case seems to be based on an assumption that one should be able to trust the police and the local authority to act speedily, thoughtfully, and competently. Fat chance: they don't on other matters.


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