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