Negligence history

seanpk
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Joined: 1 Jul 2016, 6:12pm

Negligence history

Postby seanpk » 5 May 2019, 9:29am

Historically, when did negligence in a car get separated from general criminal negligence and why? Are there any moves to get rid of car specific laws?

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gaz
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Location: Kent, car park of England

Re: Negligence history

Postby gaz » 5 May 2019, 3:29pm

We have separate motoring offences because driving a motor vehicle creates greater scope for causing injury or death by negligence than any other course of action typically available to a member of the public.

This Twitter thread explains that much better than I can.
Hand wash only. Do not iron.

Richard D
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Joined: 27 Sep 2011, 6:16pm

Re: Negligence history

Postby Richard D » 5 May 2019, 4:09pm

Negligence, giving rise to loss or damage, is a civil tort. The purpose of the civil law is to compensate someone when someone else does something wrong - breaches a contract, trespasses on the victim's land or person, causes them loss or damage though their actions.

There is not a general crime of "negligence". Although some criminal offences import negligence into their essential elements, precisely how is usually a matter for the statute that creates the offence.

All first term of a law degree sort of stuff, which goes into much more detail as to the hows and whys.

Driving is an interesting one. A every road user owes a duty of care to every other road user, negligence is the test for establishing civil liability. But the criminal offence of careless driving looks quite a lot like the same essentials that are required to establish negligence.

As Gaz has already said, we have driving offences layered on top of the civil law because society expects certain standards t be maintained on the road (allegedly; I’m seeing less and less evidence that actually supports this idea).

thirdcrank
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Re: Negligence history

Postby thirdcrank » 6 May 2019, 1:26pm

In terms of the history, I think there was a big change between the Road Traffic Acts 1960 and 1988. Here's the former:-

2 Reckless, and dangerous, driving generally

(1) If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be liable ... (etc)
s2 Road Traffic Act 1960

http://www.legislation.gov.uk/ukpga/Eli ... /2/enacted

"Recklessly" here is writing serious negligence into the statute. ie not merely carelessness but devil-may-care. I think it's fair to say that this left room for discussion at court, but I must have posted before that I once investigated a crash and the evidence I collected - and not as a traffic specialist investigator - led to a conviction and nine months imprisonment.

In 1982, a case went to the House of Lords (the predecessor of the Supreme Court) and Lord Diplock gave a judgment including this standard direction to be given to the jury:-

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:

First, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and

Second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.

It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves.

If satisfied that an obvious and serious risk was created by the manner of the defendant's driving, the jury are entitled to infer that he was in one or other of the states of mind required to constitute the offence and will probably do so; but regard must be given to any explanation he gives as to his state of mind which may displace the inference.
(My emphasis.)

That judgment was reflected in the next re-enactment of the Road Traffic Act:-
2A Meaning of dangerous driving.

(1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—

(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

(3) In subsections (1) and (2) above “dangerous” refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

(4) In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.]
s 2A Road Traffic Act 1988 (as amended.)

https://www.legislation.gov.uk/ukpga/1988/52/section/2A
ie Reference to "recklessness" omitted. Although the Parliamentary draughtsmen left out any direct reference to the members of the jury as "prudent motorists" it pointed the way to the present unhappy state of things.

FWIW, I presume that the OP was talking about something entirely different.