The debate in the Scottish Parliament on Strict Liability, October 29th 2013

A good debate on strict liability for road accidents can be found here being the last item on the list of business

Contribution to the Times campaign

Mark Cavendish, world cycling champion, says in the Times today, June 23rd, that the onus should be put on drivers in accidents with more vulnerable road users. The report can  be found here

If progress is to be made on the campaign to introduce 'strict liability' in traffic accidents in the UK then
a group of sympathetic movers need to form- MP's, journalists, lawyers, traffic engineers?
If you are one of those people, make a Comment on this post,
regards,
James Wishart, Northampton. UK.

I have just come across this excellent contribution to the 'strict liability' debate. Martin Caton MP speaking in the Commons on 19th July 2011 at 6.13pm. It can be found on the 'OurSociety' site here. (Hansard source HC Deb, 19 July 2011, c893)

Martin Caton (Gower, Labour)

According to a European comparative study of children’s exposure to accidents conducted in 2005, the fatality rate for child cyclists in the most vulnerable group—10 to 14-year-olds—was found to be around five times worse in the UK than in the Netherlands and Sweden. Every year about 50 cyclists are killed in collisions with cars. Many more are badly injured.
For health and environmental reasons, there is a consensus across the House and the country that we need to encourage more people, including children, to take up cycling. It is incumbent on us, therefore, to consider how we can improve the cyclist safety record in this country, hopefully bringing it into line with other European countries. A good starting point is to look at the difference between our country and countries such as Sweden and the Netherlands. I am sure there are several differences, but one thing stands out. Here in the UK, if a cyclist or pedestrian is injured or killed in an accident with a motor vehicle, it is for the victim or the victim’s family to prove that the driver of the motor vehicle was negligent. In Europe, we share that approach only with Ireland, Malta and Cyprus.
In every other European country, stricter liability applies for insurance purposes. Under stricter liability, which reverses the burden-of-proof balance, it is for the driver to prove that the cyclist or pedestrian was negligent and therefore caused or contributed to the accident. As Lord Denning said, as long ago as 1982:
“There should be liability without proof of fault. To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.”
I believe that adopting stricter liability in this country for road accidents would be an important step forward for justice and, more importantly, would save considerable numbers of vulnerable people from injury and even death.
A report produced for the Department for Transport in 2004, “Children’s traffic safety: international lessons for the UK”, attributed at least some of the differences in the safety record here, as compared with other European countries, to the law of stricter liability in those countries. The evidence points to the fact that stricter liability has the psychological effect of making drivers more aware of the vulnerability of children, cyclists and pedestrians. That is what the 2004 study concluded and it is also the conclusion of many cyclists who have experience of cycling in this country and on the continent. My constituent, David Naylor of the Swansea Wheelwrights cycling group, who first raised this issue with me, is one such person. He wrote informing me that he has toured in the UK, the Netherlands, Denmark, Germany, Austria and Switzerland. He went on to say:
“This has made me aware of how much safer one is over there. Motorists treat cyclists and pedestrians with respect. The better infrastructure helps but my judgement is that the existence of stricter liability is more important”.
When I took that up with the Department for Transport earlier this year, the Minister replied: “Even if there were some benefit for road safety such benefit would need to be weighed against the disbenefit which might result from overturning the well established and effective law that applies in civil liability.” Personally, I think that road safety should trump legal tradition every time.
We would not be revolutionising British law if we applied stricter liability in these cases because it is already part of our civil law on workplace health and safety incidents and on product liability. It is even in the field of motor insurance already, as it applies to car passengers. Extending it to protect cyclists and pedestrians makes sense and I urge the Government to give serious consideration to making the necessary changes even if the insurance industry does not happen to like the idea.

Similar sites

1. Having just published this blog I discover an excellent site with a similar aim, to adopt strict liability in traffic accidents in the UK. It is here

2.
This site is trying to introduce 'strict liability' criteria for all road users but most of the stuff on the web seems to be about helping the cyclists, which I am all for admittedly, but the benefit would be better shared with everyone. Here is a report on the 'Cyclists Defence Fund'  website at http://tinyurl.com/7wbxrxp.

"Presumptions of Liability
A storm was recently provoked when it emerged that the Government advisory body, Cycling England, planned to recommend that, in civil cases, an onus of proving that the accident was not their fault be placed on motorists who collide with vulnerable road users. The details of the recommendations, still less their prospects of acceptance, remain unclear. Press reports of a strict liability, regardless of fault, are probably a distortion. More likely is a proposal to adopt a system akin to that which is widespread in other European countries; that the motorist is at fault unless proved otherwise. Variants include a general assumption that the driver of the larger vehicle is to blame, thus the presumption is against cyclists in collisions with pedestrians. Few cases in practice turn upon the burden of proof. The heavier and faster the vehicle you chose to control, the more danger you present to others. A recognition that this imposes a correspondingly greater duty and, in the event of accident, comes with a burden of proof may constitute one small step towards the shift in culture required and would be a useful precursor to any trials of innovative traffic solutions which may include the wholesale removal of traffic lights and other junction controls."

Who is the guilty party in a road accident? A consideration of strict liability

An outline of the case for using Strict Liability in traffic accidents in the UK. 

·       What is ‘strict liability’?

·       What happens on the Continent?

·       What happens in the UK? 

·       What are the advantages in the use of ‘strict liability’?

·      The debate in the Lords and the government’s response.

·       My Freedom of Information question to the Department for Transport and the Department’s answer.

·       A Recommendation.

 

What is ‘strict liability’?

According to Wikipedia) “...a rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability.” (http://en.wikipedia.org/wiki/Strict_liability.

What happens on the Continent regarding traffic accidents?

According to Lord Haskel in the Lords debate detailed below, in the majority of European countries, liability in a collision does not depend on the individual circumstances of the incident but depends on how ‘vulnerable’ those involved are. The least vulnerable will bear the blame following the rule of ‘strict liability’. That means for instance that in a collision between a cyclist and a car, the car driver will be held responsible unless there are special circumstances.

What happens in the UK?

At present the situation is different in the UK. Liability in traffic accidents is established by determination of ‘fault’ based on the circumstances of the accident.

What are the advantages of using ‘strict liability’?

There is a video tutorial at  http://tinyurl.com/6sypsnn which includes a short history of 'strict liability' and its importance in the promotion of public safety. Incidentally 'mens rea' means 'intention'. At 12mins 40secs into the video there is a brief discussion of the advantages of using ‘strict liability’. These advantages are summarised here:-

Reasons for strict liability.

·         It is easier to prove

·         It takes less time in court

·         It encourages compliance with the law

·         It prevents defences being raised as an excuse

·         It makes regulation straightforward

·         It protects the public.

The debate in the Lords and the government’s response.

There was a Short Debate in the Lords on 7^th March this year, entitled Motorists and Cyclists which can be found at http://tinyurl.com/85qq9m6. Lord Haskel spoke “When I ride on the continent, in any country apart from Portugal and the Republic of Ireland, I feel safer. In all those countries the presumption in law is that if there is a collision between a motor vehicle and a bicycle, the driver of the motor vehicle is at fault

The question of ‘strict liability’ was spoken of favourably several times during the debate. However the Government response was negative:-

Earl Attlee when closing the debate said “The noble Lord, Lord Haskel, and others raised the issue of strict liability. In English civil law, the principle of civil liability in motor insurance is predicated on the establishment of fault. In order to prove fault, it is necessary to prove that the defendant's actions caused the accident and were either negligent or intentional. We have had the benefit of advice from the noble and learned Lord, Lord Scott of Foscote, which has saved me the effort of straying outside my area of expertise.

....My Lords, we have considered it, but it would be a little odd to have a completely different legal system just for cycles. There are serious complexities here that in my opinion are insurmountable...”

Several things stand out in this response:-

·       Earl Attlee admits that the subject is outside his area of expertise.

·       He misses the big picture when he defines the subject as one concerning cycles only, maybe understandably given the title of the debate, but misses the point and the value of ‘strict liability’ when applied to all road users.

·       He refers to serious complexities which are ‘in his opinion insurmountable’ when he admitted a few moments before that the subject was outside his area of expertise.

The impression is that the matter has not been given much thought, an impression which is reinforced by the result of a Freedom of Information question which was asked of the Department for Transport following this debate.

My Freedom of Information question to the Department for Transport and the Department’s answer.

On the 14^th March I asked a question under the Freedom of Information Act. The details can be seen at http://tinyurl.com/c843fyr.

The question was:- What comparative studies have been carried out to evaluate the effect of the rule of 'strict liability' applied to road accidents involving trucks/cars/motorcycles/cycles/pedestrians, in European countries with traffic situations comparable to our own?

The reply came on 2nd April: “No comparative studies have been carried out... However I can provide you with the following general advice which I hope you will find useful.”... There followed legal arguments that essentially defined the whole issue as a matter that depended on the law rather than any evidence of efficacy. However, unusually, no effort has been made to discover what the international situation is in practical terms, as against a decision based on legal criteria only.

Recommendation

The UK is out of step with the Continent. No effort has been made to judge the effectiveness of the Continental practice. The government should study European practice with a less legalistic attitude to determine whether it is a better system.

James S Wishart, BA, CEng, MICE.

01604 634417.