Strict liability



In Newsletter 87 a year ago, Klaas Brümann explained what strict liability means and how cyclists and pedestrians would benefit if the concept was implemented. Now a website: www.stricterliabilityforus.org.uk has been set up, by Rod King from Warrington who also runs the campaign for 20 mph speed limits (www.20splentyforus.org.uk), to provide a few facts on the subject and to provide some clarity on what it does and does not involve.

However, this coincides with Norman Baker, the minister for cyclists and pedestrians, ruling out a law change that could protect vulnerable road users because bringing in strict liability for those operating vehicles on roads – which is normal practice in much of Europe – would face too much opposition. In a letter to a Labour MP, Norman Baker lists the many reasons why strict liability is such a good idea and how it appears to save lives in other European countries, but then he says the studies he cited aren’t enough evidence to push for a law that would be ‘very contentious’.

Baker writes:

In road traffic personal injury cases in the UK, the burden of proof is on the victim to prove the other party is negligent. The injured party in a crash between a motor vehicle and a pedestrian or cyclist is most likely to be the vulnerable road user. Under strict liability, the burden of proof is reversed. Vulnerable victims, not drivers, are the ones assumed innocent with regard to causing their injuries. It is up to to the driver to prove the pedestrian or cyclists was negligent. Strict liability only applies to civil compensation and does not affect criminal prosecution.

The law often uses strict liability in situations where there is likely to be an imbalance in terms of responsibility and where there is an inherent danger. Strict liability is already in use in English law, including workplace health and safety incidents and product liability.

Many countries in Europe apply strict liability to vulnerable road victims, e.g. pedestrians, children and cyclists. To varying degrees, this is applied in Austria, Denmark, France, Germany, Italy, the Netherlands and Sweden.

The road safety argument for strict liability is that is has the psychological effect of making drivers more aware of the vulnerability of children, cyclists and pedestrians. In support of this argument, many of those countries with strict liability have much better cycle and pedestrian safety in terms of fatalities per billion kms walked/cycled. The fatality rate for the most vulnerable group of child cyclists (10-14 years old), which represent a group of road users who potentially would benefit most from strict liability, may be five times worse in UK than in the Netherlands and Sweden according to one European study. Another report on child road safety attributed some of this difference to the law of strict liability.

However, there are also likely to be many other factors to explain these differences including the higher percentage of cyclists in those countries. Additionally, the evidence from the Think evaluation and other research suggest that driver behaviour change is more likely to be motivated by seriouspersonal consequences, whether it be death or injury to themselves or others, or criminal punishments such as loss of their licence or imprisonment, than they are by any insurance issues. So the Department has focused on those approaches to behaviour change rather than insurance or liability.

Any change in the law is likely to be very contentious and it would be important to have strong evidence of a benefit to justify a change in the law.

The website, ‘Stricter Liability For Us’, makes a very persuasive case as follows:

In the UK we have a long-held principle that for most aspects of the law one is ‘innocent until proven guilty’. Quite rightly it dictates that criminality has to be proven in order to establish guilt.

However, there are many situations whereby liability for one’s actions does not necessarily require the same degree of proof. Employers often have a liability for what happens even though they may not be criminally guilty.

In most parts of the EU this separation of criminality from liability exists with regard to the use of the roads. The vulnerability of the young, the old, the infirm and those less protected by a surrounding protective structure, such as cyclists and pedestrians, is recognised in the way that the road law creates a ‘duty of care’ on those driving motor vehicles and makes them liable if they come into contact with such vulnerable road users.

For example in the Netherlands children under the age of 14 cannot be held responsible for any collisions and other cyclists and pedestrians cannot be more than 50% responsible, but rarely is their compensation reduced.

This concept of ‘stricter liability’ being dependent upon the vulnerability, or otherwise, of a road user is seen as eminently sensible. Indeed in 1982 Lord Denning said :-

‘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.’

This website seeks to provide a few facts on the subject and to provide some clarity on what it does and does not involve.

Strict or stricter liability has also been referred to as ‘proportional liability’: this recognises that the liability (and duty of care) of one’s actions when using a road should be proportional to the degree of danger which you impose on other road users. Hence motor vehicle drivers would always have a greater duty of care to people who are vulnerable on the roads when walking or cycling.

This hierarchy could also be extended to larger freight vehicles over smaller motor vehicles.

Information taken from www.stricterliabilityforus.org.uk