private road - public liability

davidmcn

I've never heard of a privately-prosecuted road traffic offence, and given that the OP hasn't suggested that the driver had committed any offences we seem to have ventured down a rather obscure wormhole...

Guest101

davidmcn wrote: »

I've never heard of a privately-prosecuted road traffic offence, and given that the OP hasn't suggested that the driver had committed any offences we seem to have ventured down a rather obscure wormhole...

I think it's more of a general discussion - I agree it doesn't happen, as I said it's too expensive, no-one is going to do it.


Some people were suggesting that they drove without due care and attention, but agree it wasn't the OP

G_M

Guest101 wrote: »

Some people were suggesting that they drove without due care and attention, but agree it wasn't the OP

This may be another wormhole, but.....

Common sense tells me that when leaving the public highway and driving onto a (cobbled) private road, I should drive in a different manner: slower, greater care, avoiding potholes etc.

Indeed over the years I've encountered private roads so poorly maintained that I've made the decision to reverse out.

So 'due care & attention' seems to me relevant. Not in the criminal sense, but as a factor in a civil claim for compensation.

However this is my common sense speaking - whether the (civil) law reflects my common sense is another matter.

Guest101

G_M wrote: »

This may be another wormhole, but.....

Common sense tells me that when leaving the public highway and driving onto a (cobbled) private road, I should drive in a different manner: slower, greater care, avoiding potholes etc. - agreed. If that is the nature of the road. Obviously I cant tell since i'm not there, but if the road surface changes dramatically, you would notice and adjust.

Indeed over the years I've encountered private roads so poorly maintained that I've made the decision to reverse out. - Many are just dirt tracks, which is again fine, it just needs to be obvious. I may have missed it in your original post, but I assumed it was a road with a pothole or several, but otherwise well maintained.

So 'due care & attention' seems to me relevant. Not in the criminal sense, but as a factor in a civil claim for compensation. - it's a good point, but it would need to be provide on a balance of probabilities, that the driving well short of what a reasonably skilled driver would do. Were there witnesses?

However this is my common sense speaking - whether the (civil) law reflects my common sense is another matter.

I found this which may help


Who’s Liable For Accidents On An Unadopted Road?

Private Road Insurance (or Unadopted Road Insurance) is a crucial type of land insurance for those who own an unadopted road as, if anyone were to have an accident on the road, the property owner could be held liable for any injuries caused to the third-party. Therefore it is important to maintain the road to an acceptable standard. Though Unadopted Road Insurance is not a legal requirement, if your unadopted road is open for public access then it should be seriously considered as a way to financially protect yourself should the worst come to the worst. If there are multiple residents on the road, it is common for the residents to share the Unadopted Road Insurance policy.
If the owner of an unadopted road is unknown, you can usually trace the land owner by Land Register (if the road is registered) or by finding out who the original developer of the road was. However, the frontagers of the unadopted road can take over the maintenance and management of the road and be protected by law until the true owner comes forward.


https://www.ashburnham-insurance.co.uk/blog/2015/06/what-is-an-unadopted-private-road/

bouicca21

Assuming this sort of prosecution is even possible, which I doubt, vexatious possibly, certainly wouldn't meet the test for malicious.

EachPenny

G_M wrote: »

Common sense tells me that when leaving the public highway and driving onto a (cobbled) private road, I should drive in a different manner: slower, greater care, avoiding potholes etc.

This is where the 'special defence' would kick in if the road was a highway maintainable at public expense. The driver is expected to exercise caution commensurate to the type of road they are driving on.

A pothole which would be considered unacceptable to be left for more than a few hours on a motorway could be left for months on a 'C' class road. This is why most Highway Authorities divert much of their maintenance money towards the main road network, and allow the more obscure byways to become even more rustic.

I couldn't quote case law, but I'd expect the principle to carry over to private roads - a driver shouldn't be expecting motorway standards on a short residential street, especially not a cobbled cul de sac.

Guest101

bouicca21 wrote: »

Assuming this sort of prosecution is even possible, which I doubt, vexatious possibly, certainly wouldn't meet the test for malicious.

here's a link from the CPS on the subject http://www.cps.gov.uk/legal/p_to_r/private_prosecutions/


- cases where it can be said that the prosecution is vexatious (within the meaning of section 42 Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds);


Vexatious: Restriction of vexatious legal proceedings. E+W
(1)If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground—
(a)instituted vexatious [F1civil] proceedings, whether in the High Court or any inferior court, and whether against the same person or against different persons; or
(b)made vexatious applications in any [F1civil] proceedings, whether in the High Court or any inferior court, and whether instituted by him or another, [F2or
(c)instituted vexatious prosecutions (whether against the same person or different persons),]
the court may, after hearing that person or giving him an opportunity of being heard, [F3make a civil proceedings order, a criminal proceedings order or an all proceedings order.]

EachPenny

bouicca21 wrote: »

Assuming this sort of prosecution is even possible, which I doubt, vexatious possibly, certainly wouldn't meet the test for malicious.

I wondered if it would meet the mailicious test if the prosecution was commenced as a counter-strategy to a legitimate claim for damages, rather than with the geniune intention of bringing an offender to justice?

In the context of the OP it would be whether it makes sense to pay out on a legitimate claim, or seek to fight fire with fire. Notwithstanding Guest101's comments on costs of course.

In the OP we are discussing a claim of £1000, small beer. But what if the claimant was riding a motorcycle for example and the pothole cause them to fall and suffer serious injury, where a claim could easily get into six figures? (hopefully G_M won't mind a bit of thread creep)

DaftyDuck

I am interested in this thread, as I own the road that leads to three properties (one of which has dubious access rights anyway ). It's my farm's entrance (my farmhouse is separate access), their only entrance and, although it's perfectly serviceable, it's not ideal. Rough gravel, potholes, often slippery. Mind you, the adopted road from the village is little better. It was (and will soon again be) gated, and is fairly clearly a farm access road (ruddy great barns visible at the end).

When buying, my solicitor warned me that, in his legal experience, other similar roads attracted certain activities - village drug dealing, animal (dogs of a banned nature...) sales, drunks parking up for a snooze.. ... reproductive activities of a commercial nature.... mainly as the police powers of intervention were slightly lessened because of the private ownership. He'd represented a fair few on both sides. He suggested a gate be added as a useful deterrent. He also suggested not to add signage warning of poor road condition, as it would be some admission of liability.

Anyway, we like our tatty road, even those for whom it's the only access, precisely because it slows traffic to a crawl. Even Yodel drivers weave their way around sleeping cats and dogs ( sometimes nine cats and three dogs)! Nobody wants me to sort it out, even though I offered!

Not much of that rurality is relevant to G_M's London friend, except possibly the advice not to add a warning sign.

Mind you, I'll watch this thread with a certain amount of trepidation! .... Where there's blame there's a claim ... for compo!:D

moneyistooshorttomention

In your position Dafty - I'd regard my household insurance as being not just house itself/contents but I'd also take out an insurance policy to protect myself against a claim by anyone driving on that road (as you are the owner of it).

Last I knew - they cost around £250 pa.