Presumed Guilty

If you are involved in a collision, Highways England will not approach you first but notify your insurers.  They will refuse to speak with you.  Furthermore, whilst the police may well have attended the incident, considered the scene, the position and condition of all vehicles, spoken to the drivers and any witnesses, if they do not consider you guilty of an offence, you could still be maligned and accused by Highways England – see case study below.

Highways England appear to believe it is for the driver to verify the accuracy of their own statement; to prove and then provide yet further proof of their innocence.

Case Study:

The insured states they swerved to avoid a lorry which was much larger and intimidating than their car and had moved into their lane suddenly, unexpectedly.  Instantly fearing for the safety of himself and his passengers, his natural reaction was to take evasive action. Control of his vehicle was lost and a collision occurred. There is no argument – the insured vehicle hit the barrier.

The other vehicle stopped.  The police and ambulance arrived.  The ambulance crew checked our insured and passengers but luckily other than shocked, they were uninjured.  The other vehicle’s driver was unharmed.  The police spoke with all parties, examined the vehicles and scene, then left the drivers to attend to their respective vehicles.  No offences were apparent, no ‘notice of intended prosecution’ served to either party.   The insured’s vehicle was not drivable, the other vehicle was driven from the scene.

Highways England approached the car driver’s insurers.  It seems an adverse inference was conveyed about the insured’s driving as there was apparently a suggestion the insurers would look to the insured for settlement. We were instructed.

It appeared that, prior to approaching the insured, Highways England had undertaken no enquiries and their contractor had not compiled all relevant information – there was no mention of the lorry and no approach to their insurers for comment or settlement.  We conveyed the insured’s original account (prior to our involvement) to Highways England and their response was:

“we don’t consider the insured was driving with due care and attention, as an alert driver would have made a safer manoeuvre and we question the cause of the accident as reported as there are no witnesses (apart from his partner) to substantiate this version of events.”

Highways England a Prosecuting Public Authority, armed only with a brief account of the incident and repair documentation, are apparently able to conclude what the police (trained in such matters and expected to enforce the law) were unable to discern at the scene; that the insured drove without due care and attention. Driving in this manner is an offence –  Road Traffic Act 1988, section 3.  Defences to this offence usually are factual – in other words that the particular facts of a case don’t amount to carelessness or lack of consideration. For example, where caused by a mechanical defect in the vehicle (where unknown to the driver)  where the driver was reasonably distracted by an external inhibition (even the presence of a bee) or a passenger).

It appears Highways England live in a world where, following an incident, others stop and provide their details as witnesses.  To our knowledge no one identified themselves to those at the scene (drivers, ambulance crew or police officers); expecting independent witnesses is unrealistic.  And let’s not forget had they wished to obtain and present such evidence, they need only have referred to their own records … but Highways England failed even to secure the CCTV as when we sought this evidence the response was :

“We have provided all documentation in support of our claim and as you aware CCTV footage is not available, these are only kept for 7 days (longer if involving fatalities).”

Whilst we spoke to and conveyed the insured’s account that the driver of another vehicle had acted carelessly, Highways England appeared disinterested, unconcerned. Their reply was that:

 “the insured was negligent and we have no independent evidence to confirm their version of events”

Highways England did not supply evidence of the driver’s negligence, save for saying ‘he hit the barrier’ and had not sought the independent evidence available – that of the police.  We asked Highways England to provide any information they possessed which contradicted the account. We invited them to speak with the driver to clarify the facts.  To quote Highways England:

“It is not our policy to contact the insured as we only deal with their representatives, i.e., insurers or appointed loss adjusters. “

We asked for any evidence Highways England possessed to contradict the insured’s account.  We suggested Highways England contact the police if they wished to challenge the insured, effectively call him a liar. But Highways England responded:

“I suggest you request the police report as we are only pursuing the negligent vehicle responsible for causing the damage.”

It became evident that Highways England had already ‘convicted’ the driver of driving negligently albeit they failed to provide any further information about the event, simply the initial incident report (compiled well after the incident) and the repair documents.  Subsequently, Highways England wrote:

“If your insured has evidence that can prove that he was not at fault, it is for you as his representative to request the police report in the pursuance of due diligence.”

Whilst Highways England stated “we have provided all documentation in support of our claim” in fact, all they had supplied was evidence that the insured vehicle had stuck the barrier (not disputed) and correspondence detailing the repairs.

The insured had provided their statement of events and it appeared reasonable for this to be accepted as true in the absence of information to the contrary.  Our stance was straightforward; if a driver has evidence that can prove they are not at fault, end of story. Conversely, if Highways England have evidence to the contrary, it is for them to present it.

  • Why did the driver require a police report if they had provided evidence they were not at fault?
  • It is for Highways England to produce evidence to the contrary, to undermine the insured’s account; to prove their case
  • Just how much evidence did Highways England require and why were they adopting such an onerous stance?

We have had previously dealings with such matters and are aware Highways England understand that it is natural to swerve from the path of an object travelling toward you – see Highways Agency (now Highways England) letter – swerve to avoid