Preparing the legal road ahead

Investigating road traffic accidents can require the services of a whole host of specialist witnesses, says ian Smith. Ian Smith is a former policeman and an expert witness with Professional Transport Advice Services. Experts in any discipline are a mine of useful information and none more so than in the field of road traffic accident investigation.

Many of them are what has been termed 'gamekeepers turned poachers' – former police officers trained in accident investigation and reconstruction techniques who now operate in the private sector and market their services as expert witnesses.

The experts will have a good idea about how the accident inquiries will develop, the police and the Vehicle Inspectorate's procedures during an investigation, and the likelihood of criminal charges or substantial civil liability claims being brought.

Solicitors need to harness this wealth of 'inside knowledge' if they are to act in their own and their client's best interests. For example, take the following sequence of events. Your out-of-hours pager goes off part way through dinner on a Saturday evening and you discover that one of your major commercial clients is trying to get hold of you.

He tells you that one of his company's coaches has collided with a lorry and overturned in atrocious weather conditions, just outside Dover, on its way back from a local school activity trip to Germany. The only information he has is that the driver has survived but has been taken to hospital and that it is not yet clear how many of the passengers have been killed or injured.

What should your client do? He knows the accident will soon be national news and his entire business will be scrutinised by the multitude of enforcement agencies which supervise road transport in the UK. The client's worst nightmare has just come true.

As you replace the telephone handset, you realise that your client may face criminal proceedings and that civil liabilities could run into hundreds of thousands or even millions of pounds.

What you need to know is what the investigating police force are likely to do and when. You need to know exactly what is going on at the scene of the accident to enable you to act in the company's best interests.

The vehicles involved are likely to be examined, probably at the scene and again afterwards as the police investigate the circumstances of the incident and collect evidence, in the event that criminal charges are brought against the driver and the company.

Your client's entire transport operation is going to come under intense scrutiny. One company owner said of his own experience: 'Within hours the offices were crawling with the police and ministry officials removing work and maintenance records, tachograms and time sheets. You name it, they took it.'

What you may need is someone who can help you to sift through the many areas of legislation, practice and procedure that surround the investigation of a major road accident, especially those involving commercial vehicles.

You know that disclosure of the seized documents will eventually take place when charges have been laid against the driver and/or company, but there is much that can be done before then.

The enforcement authorities need to be shadowed throughout their investigations. It is even better if the advice you seek allows you to get there before them.

Independent examinations of the vehicles involved must be made as soon as practicable if it is not possible to observe the investigating authorities examinations. Mechanical defects can often be missed by either side in a case and such an oversight by the prosecution engineer could leave the door open for a subsequent acquittal.

Then there is the driver's account. What does he say happened? He needs to be comprehensively debriefed by an expert. A professionally taken statement will further allow you to consider properly your approach to the subsequent interviews of the driver and the client carried out by the police and the Vehicle Inspectorate. If you are well prepared you are unlikely to be suddenly confronted with unexpected evidence in the middle of an interview.

Meanwhile the company is being bombarded with questions about the legality of its day-to-day operations prior to the accident, and charges of conspiracy and corporate manslaughter are being talked about.

At this point it can help solicitors if they have some idea about the direction the investigation is likely to take.

After several months the prosecution papers are finally served. You decide that your client's case needs to be examined by an expert. Everything needs to be sent to the expert – there is nothing worse for the expert than pursuing inquiries in a particular direction only to find out a few days before getting to court that other correspondence/documents exist which challenge or, at worst, discredit the fundamental findings of their report.

Experts would far rather read and have ready reference to much more of the case details than they actually need because it aids their understanding of the full circumstances of an incident.

Where possible discuss the expert's thoughts on the documents well in advance of any formal report being made. They may well have ideas about other ways of aiding your case.

You can no longer rely on one expert's knowledge of an associated discipline to suffice – you are likely to use a number of experts acting in their own specialist fields to produce a properly prepared, researched and presented case. for example, an examination of the circumstances surrounding a major road accident is now likely to entail experts from disciplines as diverse as road accident investigation, mechanical engineering, systems design, friction braking materials, chemistry and surveying.

If the vehicle's operator has come under scrutiny, then expertise in reading tachograms and drivers' hours legislation might also be needed.

Nothing can prepare your clients for a major road accident, but there is much that can be done in the very early stages to help and quickly get to the bottom of what precisely happened to enable you to provide best advice and legal support.