Towing tribulations and motor claims

Published 17 agosto 2023

With approximately 4,000 trailer and caravan related incidents on UK roads every year, insurers can expect to see the holiday season bringing an increased number of such claims and therefore it is, perhaps, timely to reflect on a number of the issues that are likely to impact on claims that are likely to arise with far less frequency, if at all, at any other time of the year.

Driving licences and insurance

The holiday season inevitably brings onto the roads drivers who do not tow caravans and trailers on a regular basis and some of whom will have borrowed or hired vehicles for the purposes of towing a load for which their usual vehicle is unsuitable. It would therefore be prudent for an insurer, when faced with a claim that might involve such a situation, to check that not only does the insured's policy provide the necessary coverage, but also that their licence enables them to legally drive the vehicle and drive the caravan/trailer in question.

Insurers need to be alert to any indemnity issue that may arise as a result of inadequate licence permission and/or insurance and to take such action as may be appropriate to protect their position.

The Highway Code

The importance of the Highway Code in determining issues of liability should not be underestimated with Section 38 (7) of the Road Traffic Act 1988 providing:

“Failure on the part of a person to observe the provision of the Highway Code shall not, of itself, render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal) be relied upon by any party to the proceedings as tending to establish or negate any liability which is in question in those proceedings.”

In other words, a breach of the Highway Code is a persuasive inference of negligence though it is an inference which is rebuttable. Rule 98 of the Highway Code contains wide ranging directions dealing with the do's and don'ts of before towing, during towing and in the event of accidents and while they are far less familiar than some parts of the Code, they are important when considering liability issues.

On the road

Once out on the road there are a number of factors which need to be considered should a claim arise, as added risks and dangers can arise where a driver is unfamiliar with towing caravans and trailers, and these are factors which can feed in to determining whether a driver has met the required duty of care.

The changes to the law in 2021 which make it possible for drivers to tow up to 3,500kg with no additional training will add to the risks faced by drivers unfamiliar with towing such weights, even if they have experience of towing lighter loads. Other "on the road risks" would include:

• Manoeuvring when towing can be tricky and not only for those with little or no previous experience. The experience that may have been gained in the past is always useful, but when towing something new to the driver then differences in size, weight, design and handling may make it a very different experience.
• A significant risk area associated with towed vehicles arises when turning. Whether turning left or right, road positioning for the manoeuvre can differ significantly and when turning across oncoming traffic it is vital to remember how much longer the vehicle is than normal and consequently how much more time it will pose obstruction to oncoming traffic.
• The weather too can have an increased level of significance, with towed vehicles being more susceptible to high winds with a consequent higher risk of overturning.
• Towed vehicles being loaded to above their approved levels. There will frequently be a temptation to try to think of every eventuality and to pack accordingly with the risk of taking so much that they are overloaded. Items attached to the outside of towed vehicles, such as bicycles and canoes, add their own inherent risk, particularly if not properly secured.
• While it is important to consider the towed vehicles, the towing vehicle should not be overlooked with the potential for overloading, inadequately controlled pets and inadequate seating/harnessing of children all to obvious.
• Heading off on holiday it is all too easy for the driver to become distracted or to relax and the added considerations when towing render any lack of concentration particularly dangerous.

To the additional risks in relation to accidents, it is to be remembered that there are a wide range of criminal offences awaiting the driver who fails to adhere to the rules, requirements and practices applicable to them, and while a criminal conviction does not in itself answer the question of whether there was negligence on the part of the driver, it can be a persuasive factor.

When considering any liability issue, a claims handler would be well advised to bear in mind the additional factors that could impact on the liability of the driver towing a caravan or trailer: what might be perfectly reasonable and acceptable in the context of driving a car may well be far from it when towing.

On arrival and on site

Even once destination has been reached there are still novel factors that can arise in respect of claims.

• Manoeuvring the caravan or trailer into position could prove tricky particular for those with limited towing experience. In popular places, spaces and pitches may be tight and there can be uneven surfaces which require a significant degree of driving skill to negotiate safely.
• With the high cost of items frequently encountered on sites such as bicycles, e-bikes, scooters of all description and all manner of electrical goods, with some running into the thousands of pounds, the potential for an expensive incident involving them is clear to see.
• By their very nature, holiday destinations are very likely to have children running about and people walking around with less attention to the risks of vehicles than they would if they were on or near a road. In A (a minor) by her litigation friend FA -v- Akram [2021] EWHC 2467 (QB) in relation to judging the culpability of a child pedestrian the judge said “The court must gauge “fault” by reference to what can reasonably be expected of a child with the age and characteristics of the claimant in the circumstances the claimant found herself, bearing in mind that her road sense and experience were not what would be expected of an older person. In undertaking that exercise the court must take account of all the circumstances of the case.” It easy to see how it could be said that when one is considering a leisure area the degree of care that a child would be expected to exercise is lower than would be the case on or near a road.
• Another issue to consider in relation to e-scooters and e-bikes, both of which will be essential holiday equipment for many is the risk posed by recharging them inside the caravan. The media is replete with stories of fires believed to have been caused by batteries undergoing charge. Given the cost of such equipment, the desire not to leave them outside is understandable but the risks cannot be underestimated and the risk extends beyond the vehicle in which it is being charged and the occupants but also to other vehicles and people in the near vicinity. Any claims arising out of such events are likely to be costly.
• Some will be on holidays where they have more than one centre or may be touring and moving on each day staying overnight in different locations. In such cases the risks of travel and arrival arise each night with new and different roads and sites to contend with.

As can be seen, it is not just the journey to or from the holiday destination that can generate claims issues which take you outside the norm of motor claims.

The journey home

The journey home poses the same risks and dangers as the outward one, with perhaps some added ones to bear in mind. The holiday may have had a relaxing effect, but whether that is carried into the drive home or tensions are raised by the thought of a return to work or perhaps fractious and noisy children and pets causing a disturbance, it would take little to make concentration stray. Although expressed slightly differently in various cases, it has been long established that the standard expected of a driver is that of the ordinary, reasonable, careful driver: the standard of care required is not lessened by the relaxation or stress of the driver and such factors can soon impact on a driver's concentration and lead to lapses. Particularly when the holiday season is in full flow, journeys to and from popular destinations often involve heavy traffic and delays. These traffic conditions can add not only to the stresses of the journey, but also be a source of driver fatigue, as can lengthy journeys from distant holiday destinations when there is a temptation to 'just get home' and not take the rest breaks that might normally be taken.

All of the factors involved in the journey home show how easy it can be for conditions to give rise to a lapse in driving standards, an occurrence which can so easily result in accidents and impact on issues of liability. A prudent driver will always ensure that they plan their journey, respond sensibly to whatever is encountered on the way, and take a break when needed, and a prudent claims handler will be alert to the uncommon circumstances that can arise.

Home at last

All the risks and dangers outlined above could give the impression that any holiday which involves the towing of a caravan or a trailer is a disaster waiting to happen and that the motorist who returns home unscathed has had a miraculous level of luck, but that is far from the truth. Most holidays of this nature go off uneventfully with the participants having nothing but a relaxing and enjoyable vacation.

However, accidents do happen and it is important for those dealing with claims arising out of such incidents to be aware of the factors that can take such claims outside the ordinary course of events and the unusual factors that can come into play.

For more information or advice, please contact a member of our Motor Injury Team.