What is the legal position...

[disco_al]

109 breakdown truck

slightly off the track, but i know where there are 2 109 recovery trucks round here....

as for helping out, not sure about recovery, but have contemplated stopping to help with wheel changes etc (although i reckon changing a wheel should be part of the driving test)

best course of action is to get something on paper, signed by both parties to state no liability for any damaged caused whilst recovery in process, witnessed would be best, but in the early hours on dark country road, your unlikely to find one of those.

[Night Train]

I would be very cautious of helping but I probably would help in most cases. However, I would also take lots of before, during and after photos for my own security.

I do this after any accident on the road that I am involved in, no matter how minor.

Some years ago one of my electricians bumped a parked car with his van while getting out of a parking space. There was no damage and the owner of the car came out of the cafe and accepted that it was just a touch and no damage. My electrician headed off.

A week or so later he got a summonds to court for hit and run. The other car had apparently been written off and the owner, and all his mates who happened to be in the cafe with him at the time, all claim to have seen my electrician smash the car to bits and then drive off. He had to pay up as he had no witnesses on his side and also ended up with points on his licence and his own insurance went up.

[Superpants]

I have just recently come back from the states- one day whilst travelling with a couple of guys from the US, we got onto discussing the whole suing culture, and it became clear to me that although there seems to be a trend in the UK towards it, It seems unlikely that it will become as prevalent in the UK (or Europe) as it is over there for two separate, but connected reasons- The lack of a national health service and the ‘Hire and fire at will’ employment policies (with no contract of employment;

The story related to me was that someone had had a relatively minor industrial accident, which required medical treatment and a few weeks off work (I forget what the actual injury was). There was no suggestion that the employee had been negligent to have the accident. The man involved had medical insurance that would cover the injury, provided by his employer (a common arrangement I’m led to believe). Because the employee was unable to work, he was fired, and so lost the medical insurance. He was therefore left with no way of paying for the medical treatment and no job- not unsurprisingly he took the employer to court to claim the medical fees.

I was led to believe that this sort of occurrence is commonplace, but would be unlikely here as the employee would have had his medical needs met by the NHS, and so wouldn’t have been out of pocket. He would also have had his employment protected (especially as this only stopped him working for a few weeks), and so would have a job to return to.

This has changed my view of the ‘compensation culture’, and I personally don’t think we will ever get to the level it does in the US. I am happy to help people in an emergency- but be it first aid, recovering a vehicle or changing a wheel the first thing you are taught in first aid is to assess the situation before making a decision of what to do, which is what I will do!

[ThreeSheds]

A couple of years ago, I pulled a car off the hard (sea) in North Norfolk that was up to the doors in an incoming tide. When the owner returned, he pushed his way through the crowd that had gathered and having glared at me, checked all around his car for damage before just driving off.

<..>

Maybe he wanted to get rid of it?

I knew a delivery driver a few years back who drove like a loonie in the hope that she would wreck the van (mechanically) and get a new one! Eventually she put it on one side in a ditch and was fired...

[western]

Nothing to stop you offerering assistance to a broken down vehicle owner/driver, but if any moving of the vehicle is required it's entirely up to you & the other person involved.

I will stop & offer assistance to anyone, but as I'm Not insured for roadside recovery I just won't do it.

[Guest diesel_jim]

On a similar note....

beware if you're out laning on Salisbury plain, in the "chalk pit" (by sidbury hill, the driver training area)

a couple of years ago, there was a "stuck" vehicle with a couple of occupants... my mate went over to offer assistance (the stuck vehicle was not on a RoW) and the two "off roaders" were in fact police. a police 110 then appeared out of the woods and came over, but as we're (my friends and I) are quite well known by the police and the wardens, a bit of name dropping and all was well, but it transpired they were attempting to bait "off roaders" into driving off of the RoW then nicking them.

[western]

now that is completly illegal, think it's called entrapment or similar, they should know better.

[gazelle]

It occurred to me earlier that the terminology I was using might be at best ambiguous. I think it best to clarify what I meant by "recovery". I am only talking about getting someone out of the clag - not taking them anywhere afterwards.

I will stop & offer assistance to anyone, but as I'm Not insured for roadside recovery I just won't do it.

When you are talking about roadside recovery, what level of help counts as roadside recovery - taking the vehicle to a safe place, or even getting it back on the black (or level brown/green) stuff?

[Guest diesel_jim]

, think it's called entrapment or .

thats the word! i coudln't remember it. yeah, we mentioned a similar thing to them, they just changed the subject. MoD police too.

they also did my mate (same mate) for not being on a RoW (the old ridgeway just off of the chalk pit). my mate should have known better as he's been laning for years and knows the plain as well as i do, but he argued with them and ended up in court with a £70 fine.

but at the time, he said to them (holding his map in hand) "ok then where am i then?" and they couldn't show him (because they didn't know), all they could say was that he wasn't on a RoW.

So, in response to an earlier question, who would we recover.... the police ain't one of them!

[western]

It occurred to me earlier that the terminology I was using might be at best ambiguous. I think it best to clarify what I meant by "recovery". I am only talking about getting someone out of the clag - not taking them anywhere afterwards.

When you are talking about roadside recovery, what level of help counts as roadside recovery - taking the vehicle to a safe place, or even getting it back on the black (or level brown/green) stuff?

I think any movement of the casualty vehicle would or could be called recovery as your moving it from it's currently stuck/disabled position, providing moving the vehicle didn't cause it to depart the scene of a accident then to a place of safety [nearest layby or garage] would be as far as I would be willing to move another vehicle but only with the owner/drivers consent.

[bobtail4x4]

I live off a twisty narrow road, so at least once a week cars end up in the ditchs and once a day in winter, some get out but a lot wander down our lane asking if I will pull them out as I own a Landrover or 3.

some get pulled out others dont. depending their attitude.

[landmannnn]

didnt something similar to this occur at billing a few years ago where a over zealous marshall recovering a p38 park the front end of the p38 into a gatepost?

No, that was a piece of rubbish from a (now banned) member.

For myself, I would stop (and have done) to recover someone stuck. From a common sense point of view I always make it very clear what I intend to do and most importantly I make sure that the person being recovered takes part, even if it is just hooking a rope or moving a rock. Then if there are any problems they were also involved in the recovery.

[honitonhobbit]

There's some simple rules:

1). Don't except money for the recovery - gifts are okay; never charge! This means you are excepting liability and on the HRH's highway you need to be insured and qualified to offer a recovery service as a business - note by recovery I mean recoveryof any sort.

2). Get a witness to the request and the event, if there is no witness get the request in writing - yes I know it sounds daft but it's your ass in a sling

3). Use there kit if they have it

4). Get them to set up the rig - DO NOT INSTRUCT THEM HOW TO DO IT! If they are incapable go back to point 2

5). If you are concerned in any way don't do it, if you have to get pictures

6). Risk assess - look for what will go wrong and how to avoid it

The problem is that we have a duty of care to aid our fellow man/woman but unlike First Aid, the law will not necessarily turn a blind eye to this sort of help if it goes wrong

As for off the highway, gues what! You are still liable so Les' Suszuki driver would have had grounds to sue him if he was so inclined, unless Les was a registered marshal at the event, then it would have been the event organisers issue

I love the law! I do green lane recovery and general recovery of idiots illegally using byways (with the adjoining land owners permission and that of the local RoW) I also do a bit of general off road recovery around the locale but I am qualified and insured and I don't charge...

[Jos]

Yesterday I helped to recover a car which was stuck in a green lane (courtesy of Tomtom), and the RAC van that was trying to recover the car. It got me thinking about what happens if the car was damaged during the recovery I was making. (It was passenger side down in a ditch with water in that side).

What is the legal position on this. If they are stupid enough to drive a car down a lane is it their lookout?

If damage occurs during recovery, who is liable?

If liability is on the assisting party, then is it worth stopping or is it best to keep going and leave them to it?

Martin

It all comes down to whether you owe (or have accepted) a duty of care towards them, if so whether you have breached that, if so whether the breach of that duty is causally linked to any loss caused to them, and finally whether any damages claimed are too remote from the breach.

In deciding whether a duty exists the court will look at whether it is fair, just and reasonable to impose one. If you profess expertise in performing recoveries then it is more likely that a duty of care will be found - and you will be held to have the level of expertise you claimed too. I doubt very much that getting the stuck party to attach the winch to their recovery point themselves will make any difference in law. The Hobbit makes a good point though about not accepting payment (at least in cash) in such a way as it could be seen as a commercial supply of recovery services - when a duty of care will almost certainly be imposed. However the reverse won't apply - offering services for free doen't mean you will avoid a duty of care.

BUT the biggest point, as I very drunkenly banged on to JST at some length once, is not the outcome of being sued but the costs and inconvenience of being sued whether you lose or not. If someone sues you and loses they will have to pay your costs but they may not be able to, or all of your costs may not be allowed by the court.

Incidentally we are unlikely to end up in the same position as the US as they do not have 'fee shifting' there - where if you sue someone and lose you pay their costs; so there is no risk in suing generally other than your own costs. In the UK we do have fee shifting - on the 'No win, no fee' claims advertised the people making money are insurers who sell very expensive policies covering the risk of having to pay the other side's costs if you don't win your speculative claim, which you buy right at the start of proceedings before you win (or lose).

The courts aren't quick to impose liability on proficient good samaritans. It's just a judgment call each time.

[alfredenewman]

if you make a verbal agreement with the other person to whose liability it is it is just as binding in law as it is in writing ,but proving the agreement is another thing ,so make sure you have witnesses to your verbal contract

[pongo]

Just to provoke a little thought on the matter, several years ago, I was on the way to town and passed a RR sitting by the road, with an old chap in it, but doing nothing. Came back an hour later, and he was still there, so, thinking this a bit odd, I went to enquire if I could help. Turned out he was a disabled chap, and the car had a flat tyre. He could not fix it, and relied on his mobile to summon help, but had no signal. So, I duly changed the wheel and off he drove. Had I not stopped, he might still be there....so don't be too rash in deciding whether or not to help.

[Jos]

if you make a verbal agreement with the other person to whose liability it is it is just as binding in law as it is in writing ,but proving the agreement is another thing ,so make sure you have witnesses to your verbal contract

You would still have to avoid any suggestion that you were providing assistance on a commercial basis as the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999 mean you can't (generally speaking) exclude liability for negligence by way of a contract. The very fact that you had formalised liability by making a contract could be used as evidence to show that what you were doing was not just a favour... It also doesn't get round the aggravation of being sued point.

Ultimately it will be a judgment call. if someone is at risk of life and limb then any action you take as long as it's not grossly negligent will probably be fine, but if you're just helping someone out think long and hard about any risk of damage and how understanding they'll be.

Just my 2p

[sean f]

I believe in Australia there is a Good Samaritans Act (perhaps one of the Austrailia members can correct me).

The basic premis is you cannot be sued for doing something which you believe to be for the good.

If you give first aid and then provided what you do you believe is helping you are OK, obviously if it is disputed then the level of knowledge of the helper comes into play a trained medic would be expected not to make basic mistakes that an untrained person might make.

I assume the same would apply to recoveries, an experienced (qualified?) winch / recovery person would be expected to assess the recovery point suitability before the recovery not after you have torn there plastic bumper off.

I have recovered various people on the roads in the past, normally I do it out of the goodness of my heart, on a few occasions I have charged some one but only if they don't ask nicely the first time.

[reads90]

Trouble is, in this day & age, a gentlemans agreement isn't worth the paper it's written on. take the USA, i've heard of people sueing good samaritans for trying mouth-to-mouth to help someone (and it went t!ts up IIRC).

too many people are willing to dial 0800-no-job-sat-watching-jeremy-kyle-lets-make-a-fast-buck these days.

On this point my cousin is a Doctor and will not tell anyone when out as if somehting goes wrong while helping someone he can get sued. Had it with another freind who was a Nurse and while on holiday in New York a chap in front of here on the street had a heart attack and he gave him mouth to mouth and did not get his heart strarted . So she had to belt him hard in the chest to shock his heart into strating. Normal medical case and this worked and he servied thanks to her. But he sued her because she broke his sternum and a couple of ribs and mean't he was off work for a while.

So to sum up all this sue carp makes you feel like not helping anyone now days as you helping somone can be alot more trouble than it is worth