Is the vehicle behind always at fault or not?

Analysis of article 8 of the Motor Vehicles and Traffic Law 86/72

Since 1891, when one of the first automobile accidents was recorded in the State of Ohio in the United States of America, millions of accidents and/or in the worst cases, accidents have been recorded. It is therefore a daily phenomenon these days that accidents and/or accidents occur due to the massive use of motor vehicles. In most cases, responsibility is assumed on the spot as the at-fault driver assumes his responsibility and the event is resolved out of court. But what happens in cases of an accident and/or accident from behind? Is the driver behind always at fault? This question is worthy of discussion because at first glance and according to many, the ‘unwritten’ rule prevails that the driver behind is always at fault. 

Cases of negligent driving have largely occupied the Cypriot Courts and as a result, significant case law has been developed on the subject. As regards the question of liability, reference is made at this point to the principles governing negligent driving, guided by case law.

Which specifically article 8 of the Motor Vehicles and Traffic Law 86/72 as amended states the following:

 “Whoever drives a motor vehicle on any road without due care and attention or without showing reasonable care for other persons using the road is guilty of an offence and is liable to imprisonment for a period not exceeding one year or to a fine not exceeding one thousand lira or to both such imprisonment and fine.”

In the case of Anastasis Pavlou v. Police  (1998) 2  AAD 68 , the following is stated on page 73:

“Driving implies the exercise of due care. The question that arises in cases of negligent driving in violation of article 8 of Law 86/72 is whether the driver fulfilled the obligation to exercise reasonable care and attention for other persons using the road. The criterion applied in such a case is objective and its parameters refer to the behavior of a prudent and prudent person and not the perfect driver.”

Simply put, the court in cases of negligent driving examines whether the driver fulfilled the duty of care and reasonable care and attention based on a prudent and not a perfect driver. 

The duty of care is owed to every person who can reasonably be expected to be affected by the driver’s actions. The elements of negligence are the same in civil and criminal law, what differs is the burden of proof (see  Socrates v. Police  (1989) 2 AAD 1 ). As stated on page 4 of the said decision:

“The impersonally determined duty to everyone who is reasonably likely to be affected by the driver’s actions is specified in the context of the facts of the case to be decided 

(a) the nature of the duty and

(b) where the existence of whether the driver has fulfilled it is established.

The criterion, I repeat, for the determination of negligence is objective, and the measure is the careful and not the perfect driver. Finally, the prediction is related to common experiences and logical consequence.

Furthermore, a driver has a duty to exercise due care at all times and under all circumstances as stated in the case ( Constantinou v . Katsouris (1975) 1 C . L . R . 188,192 ) Negligence is interwoven with the time, place and other circumstances and failure to see what is simply visible constitutes negligence as stated in the case ( Nicolaides v . Economides (1963) 2 C . L . R . 78, 84)

It is very important that the duty to drive carefully does not extend to taking preventive measures against the possibility of negligence by other drivers. The prudent driver can reasonably assume that, like himself, other drivers will also fulfill the duty of care towards themselves and other drivers as mentioned in the case of Zacharias v. Karaolis (2004) 1 ^A AAD 72, 79

Furthermore, when assessing the drivers’ liability, the court takes into account the circumstances and factors of the incident, such as, among others, the distance between the drivers, traffic, speed, visibility, etc. Regarding the factors that are taken into account, the following decision is relevant:

“The distance which should separate two vehicles following each other must depend on many variable factors – their speed, the nature of the location, the existing or anticipated traffic, the ability of the following driver to have a clear view ahead of the vehicle in front, the distance within which the following vehicle can stop, and many other things. The driver of the following vehicle is, so far as is reasonably practicable, bound to take such a position and drive in such a manner as to enable him to deal successfully with emergencies which may reasonably be foreseen: but whether he has discharged his duty is in each case a question of fact, after the emergency has arisen, whether the driver acted with the care, skill and judgment which could reasonably be expected under the circumstances.” ( LIMASSOL POLICE DIRECTOR v. STEFANOS CH”MITSIS, Case No.: 16329/13, 27/10/2015 )

From the above, it is clear that each accident and/or mishap should be judged based on the circumstances of the specific accident, as each case is different. For example, two completely identical accidents may occur on a specific road at different times. The fact that one accident occurred at night and the other during the day means that the two incidents may have different outcomes under the circumstances. 

At the stage where the Court comes to decide on the possible liability of the driver who is accused of negligent driving, it evaluates all the testimony that was put before it. As is standard practice in cases of accidents and/or mishaps, a Police Officer goes to the scene where he checks and records the scene of the accident and/or mishap, simultaneously recording a rough sketch of the collision and/or the scene. This sketch constitutes an important part of the entire case as it is submitted as evidence in the hearing process where the entire scene and circumstances of the accident are presented under this sketch. The Court will further evaluate all the testimony that will be put before it, mainly emphasizing whether the accused was driving as a sober driver, fulfilling the duty of care, but also all the circumstances and factors of the accident.

At this point it should be noted that the Court cannot rely on conjectures regarding the circumstances of an accident. Assumptions as to the existence of facts, however reasonable, are not permitted.    

In order to make a decision, the court may evaluate all the circumstances of the incident, such as the visibility that existed, the brake tracks, the speed of the vehicles, the distance that the vehicles had, the existence of lighting on the specific road, the lighting that the vehicles had, whether the driver was driving as he is, the time of the accident, as well as other elements surrounding the circumstances of the accident.

In view of the above, the answer to the question of whether the rear vehicle is always at fault or not is no, since as has been thoroughly mentioned above, each accident and/or mishap should be examined under its own specific circumstances and factors. The fact that a car collided with a vehicle in front does not in itself constitute an event of responsibility for the driver who collided with the vehicle in front.     

ANDREAS KOSTARIS

LAWYER