# Strict Liability



## snorri (15 Apr 2013)

The start of a new campaign began today with an item on the Call Kaye programme on Radio Scotland.
http://www.bbc.co.uk/programmes/b01rwzq1

Listen from 03.10 - 09.42, 
from 16.42 - 40.45, 
also from 1h. 34.14 - 1h.40.00.

A free puncture repair kit to anyone who can listen to Alan Douglas without swearing loudly!

http://www.cycling-accident-compensation.co.uk/strict-liability.aspx


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## Davidc (15 Apr 2013)

Presumed liability is the sane version. Strict liability is absurd.


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## PK99 (15 Apr 2013)

snorri said:


> The start of a new campaign began today with an item on the Call Kaye programme on Radio Scotland.
> http://www.bbc.co.uk/programmes/b01rwzq1
> 
> Listen from 03.10 - 09.42,
> ...


 

Interesting snippet in there:




> Strict liability establishes a hierarchical structure to identify responsibility in the event of a road traffic accident, bringing certainty to the legal process.


 
I presume that in that hierarchy, if a cyclist hits a pedestrian they have strict liability for the harm caused?


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## mcshroom (15 Apr 2013)

Unless proven otherwise yes. The whole point of the system is to make the less vulnerable more responsible around the more vulnerable, instead of the current situation of the less vulnerable bullying the more vulnerable out of the way.


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## Davidc (15 Apr 2013)

mcshroom said:


> Unless proven otherwise yes. The whole point of the system is to make the less vulnerable more responsible around the more vulnerable, instead of the current situation of the less vulnerable bullying the more vulnerable out of the way.


You're describing presumed liability. With Strict Liability there's no question of proving otherwise, liability is as the title - strict - so the less vulnerable road user is automatically liable irrespective of the actions of the more vulnerable road user.


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## TwoPosts (15 Apr 2013)

I'm not sure about the legal terms in Scotland, but in England you will never get strict liability attached to Road Traffic Accidents, as has been pointed out the term is may be presumed liability which appears to be a term used in some countries in Continental Europe.

Strict liability is very rare and also very dangerous, it means that if you commit an offence with strict liability attached you are immediately guilty and all that can be done when it comes to court is to apply any mitigating circumstances to the sentence passed. This is what happened to one person who accidentally sent a risque text message to his phone address book instead of one person

Even though he was freed, he is still guilty and has the offence on his record and his life probably made extremely difficult all because of a silly mistake and strict liability.

I can't see a law in England being passed that says if a motor vehicle hits a cyclist / pedestrian or if a cyclist hits a pedestrian you are automatically guilty.

As I said I don't know the layman's definition for Strict Liability in Scotland.

Peter


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## HLaB (15 Apr 2013)

Davidc said:


> Presumed liability is the sane version. Strict liability is absurd.


It might have just been the sportive spirit but my (limited) one experience of cycling in a country with strict liability crazy cycling IMO was taking place (undertaking, pulling out along side/ in front of cars, etc). If that was an accurate picture, I'm in favour of Presumed Liability too.


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## PK99 (15 Apr 2013)

mcshroom said:


> Unless proven otherwise yes. The whole point of the system is to make the less vulnerable more responsible around the more vulnerable, instead of the current situation of the less vulnerable bullying the more vulnerable out of the way.


 

By strict liability there is no need to prove anything - Big A hits little B, A is liable no matter what happened


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## snorri (15 Apr 2013)

Davidc said:


> Presumed liability is the sane version. Strict liability is absurd.


 That's what I thought, but just posted the link without comment. 
I would hope more information will be forthcoming.


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## beatyf (18 Apr 2013)

yeah,thank you,instead of the current situation of the less vulnerable bullying the more vulnerable out of the way.


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## Dan B (18 Apr 2013)

I think a lot of people say "strict" when what they actually _mean_ is "presumed".

That's my presumption, anyway ;-)


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## snorri (19 Apr 2013)

User said:


> I would avoid using the term "strict liability" - it scares the horses motorists..


.I agree, still awaiting clarification from the legal eagle whose campaign it is.


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## MrHappyCyclist (20 Apr 2013)

TwoPosts said:


> I'm not sure about the legal terms in Scotland, but in England you will never get strict liability attached to Road Traffic Accidents, as has been pointed out the term is may be presumed liability which appears to be a term used in some countries in Continental Europe.
> 
> Strict liability is very rare and also very dangerous, it means that if you commit an offence with strict liability attached you are immediately guilty and all that can be done when it comes to court is to apply any mitigating circumstances to the sentence passed. This is what happened to one person who accidentally sent a risque text message to his phone address book instead of one person
> 
> ...


 
You are confusing liability with guilt. You are confusing civil law with criminal law. Read my blog article here: http://www.happycyclist.org/?p=429


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## TwoPosts (23 Apr 2013)

MrHappyCyclist said:


> You are confusing liability with guilt. You are confusing civil law with criminal law. Read my blog article here: http://www.happycyclist.org/?p=429


 
Ah, I see, thanks for the link.

However if the term presumed liability will serve in place of strict liability it might be less inflammatory and stand more chance of success.

Peter


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## MrHappyCyclist (24 Apr 2013)

TwoPosts said:


> Ah, I see, thanks for the link.
> However if the term presumed liability will serve in place of strict liability it might be less inflammatory and stand more chance of success.
> Peter


Yes, true. It is unfortunate that many people tend to be a little sloppy with their terminology and say strict liability when they really mean presumed liability. However, the more important thing is that this is to do with liability for reparations, not to do with guilt or innocence. The strict vs presumed thing is a side issue.


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## MrHappyCyclist (28 Apr 2013)

User said:


> Only if you don't understand the issue.


It's a side issue because it's almost always about sloppy use of terminology rather than the substantive difference that would be relevant if people actually meant "strict". I understand the issue very well, thanks, and my article on the topic is frequently used as a reference in discussions on the matter.


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## MrHappyCyclist (28 Apr 2013)

User said:


> If you dismiss it as simply being about the sloppy use of terminology rather than the substantive difference then you clearly don't understand the issues. 'Presumption of liability' and 'strict liability' are very substantively different legal concepts, with very different potential outcomes.


It might be a good idea to read a post before you actually reply to it.
Now, just because someone disagrees with you does not mean they don't understand the issues, and only an arrogant fool would believe it did. (I leave you to think through the implications of that.)



User said:


> Your blog posting is frequently referenced by you... that doesn't male you some sort of recognised expert - only a self publicist.


I never claimed to be any kind of expert (whatever that means), but here are some example references, none of which are self-references:

http://www.advanced-driving.co.uk/forum/viewtopic.php?f=2&t=3972&start=15
http://topsy.com/s?q=veloevol happycyclist
http://www.cyclechat.net/threads/impatient-drivers.116826/page-2
http://theventertainer.blogspot.co.uk/
http://www.stewartpratt.com/?p=634
http://singletrackworld.com/2013/01/the-case-for-presumed-liability-by-stewart-pratt/ (Republished version of previous)
Check your facts before you start making accusations against people.

Anyone who has followed the discussions in the press on this issue will realise that the thing that "frightens the motorists", as you put it, is the use of the word "guilt" in place of the word "liability", for example in this deliberately misleading rant in today's Guardian/Observer online. In the political argument over presumed liability, these deliberate attempts to misrepresent the issue are far more significant than the fine distinctions between "strict" and "presumed" liability.

Now, if you really do have some great insights into this issue that we mere mortals don't have, then I would be pleased to hear your corrections to the information I presented in my article. If you are not able or prepared to do that, then I'm not interested in what you (don't) have to say.


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## MrHappyCyclist (28 Apr 2013)

User said:


> Why suggest that people read your blog then? Deary me.... I haven't laughed at such a lack of insight in years...


I didn't suggest people read my blog. I pointed one person to my blog to clarify a specific point, and that person thanked me for the reference. You still have nothing of substance to offer, but persist in making childish ad-hominem attacks. Sad.


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## HJ (28 Apr 2013)

Davidc said:


> Presumed liability is the sane version. Strict liability is absurd.


 
Have you ever noticed the way that people who have cycled in France always ban on about how much more space French driver give cyclist? Ever wonder why that is? The reason is very simple, France has the strictest "Strict Liability" laws in Europe (the Netherlands they only offer protection to children under 14, for example), the effect of this can be seen by comparing the death rates of cyclists in London and Paris. In 2011 alown, 16 cyclists where killed on the streets of London (and many more seriously injured), whereas in Paris there where zero cycle fatalities.

Why is it that the UK is one of only five countries in the whole of Europe not to have a law of Strict Liability? Road Share campaign for Strict Liability is great and deserves full support.

Although I do sometimes wonder who's side CTC are on? They don't always seem to have the interest of ordinary people, who ride a bicycle as a means of transport, at heart which is probably why I have never bother with joining CTC. Although I am one of the founders of campaign to make the roads safer for all.


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## MrHappyCyclist (29 Apr 2013)

User said:


> France doesn't have a strict liability law. It has a presumption of liability.


France is an interesting and complicated case. The rules of liability are different for personal injury claims than for property damage claims. In the case of personal injury, the rules are extremely close to pure strict liability. So much so that it is highly unlikely that a motorist would be able to rebut the presumption of liability in practice. See: http://www.lawgazette.co.uk/news/the-new-french-law-motor-accidents-re-examine-your-current-cases

The Netherlands is also more complicated than just strict vs presumed. 50% of the total costs are subject to strict liability on the motorist, whilst the other 50% is based on complex, fault-based decision making.


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## AnotherEye (10 Jun 2013)

We managed to get a good discussion of presumed liability on local radio last week:
http://yourlisten.com/channel/content/1 ... _Liability

Edit of BBC Radio Sussex coverage: Marie Vesco Memorial Ride (04.06.2013)
00.00: News headline
00.48: archive + Dominique Vesco & Seb Achaibou
09.40: Gerry Platt (anothereye)
14.09: Amy Aeron-Thomas (RoadPeace) & 'pro-car' journalist


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## Crankarm (10 Jun 2013)

MrHappyCyclist said:


> France is an interesting and complicated case. The rules of liability are different for personal injury claims than for property damage claims. In the case of personal injury, the rules are extremely close to pure strict liability. So much so that it is highly unlikely that a motorist would be able to rebut the presumption of liability in practice. See: http://www.lawgazette.co.uk/news/the-new-french-law-motor-accidents-re-examine-your-current-cases
> 
> The Netherlands is also more complicated than just strict vs presumed. 50% of the total costs are subject to strict liability on the motorist, whilst the other 50% is based on complex, fault-based decision making.


 
I bizarrely find myself in agreement with User. You totally and utterly misunderstand the legal principle of _strict liability_. SL refers to minor criminal offences such as road traffic offences where it is merely necessary to show that an illegal act was done ie no mens rea or recklessness as to committing the act eg speeding offences.

The debate involving cyclists and other vulnerable road users is about a change in the _presumption of liability_ in CIVIL law which is a totally different area of law and legal concept to SL. The change proposed is that a new _presumption of liability_ that the driver of a motorised vehicle that collides with a cyclist or pedestrian will presumed to be at fault, liable, unless they can show by evidence that they are not. Currently a claimant ie a cyclist or pedestrian has to demonstrate on the balance of probability that the other party ie a motorised vehicle driver was negligent and therefore at fault and liable for the collision and all that follows. This has NOTHING to do with stict liability offences. I suggest you study a law book or consult a solicitor.


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## Crankarm (10 Jun 2013)

AnotherEye said:


> We managed to get a good discussion of presumed liability on local radio last week:
> http://yourlisten.com/channel/content/1 ... _Liability
> 
> Edit of BBC Radio Sussex coverage: Marie Vesco Memorial Ride (04.06.2013)
> ...


 
I don't listen to this stuff as so many haven't a clue what they are talking about.


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## MrHappyCyclist (20 Jun 2013)

Crankarm said:


> I bizarrely find myself in agreement with User. You totally and utterly misunderstand the legal principle of _strict liability_. SL refers to minor criminal offences such as road traffic offences where it is merely necessary to show that an illegal act was done ie no mens rea or recklessness as to committing the act eg speeding offences.
> 
> The debate involving cyclists and other vulnerable road users is about a change in the _presumption of liability_ in CIVIL law which is a totally different area of law and legal concept to SL. The change proposed is that a new _presumption of liability_ that the driver of a motorised vehicle that collides with a cyclist or pedestrian will presumed to be at fault, liable, unless they can show by evidence that they are not. Currently a claimant ie a cyclist or pedestrian has to demonstrate on the balance of probability that the other party ie a motorised vehicle driver was negligent and therefore at fault and liable for the collision and all that follows. This has NOTHING to do with stict liability offences. I suggest you study a law book or consult a solicitor.


 It is you who are confused. Both presumed liability and strict liability are concerned with liability, which is a civil matter. Hint: the clue is in the name. The difference is around whether there are circumstances in which the party who is being held liable is able to escape the liability due (usually) to evidence of fault on the part of the other party.


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## MrHappyCyclist (20 Jun 2013)

User said:


> I am afraid you are incorrect. There are strict liability criminal offences.


It would seem that you are correct on that, so thank you for correcting me on that specific point. However, it is a side issue, and does not in any way validate Crankarm's assertion that strict liability is solely and specifically a criminal law concept. So, I will set out my position specifically in relation to the matter of the debate that this thread is concerned with, which is the issue of proposals to change the liability laws in relation to the liabilities that fall upon stronger road users in incidents involving more vulnerable ones.

1. The debate is specifically about the allocation of liability between the parties involved in road traffic claims under civil law. (There may be someone somewhere arguing for something in relation to criminal law, but that is not what we are talking about.)

2. The terms strict liability and presumed liability are both applicable in civil law, and the difference is around whether there are circumstances in which the party who is being held liable is able to escape the liability due (usually) to evidence of fault on the part of the claimant.

3. There are many examples of people either accidentally or deliberately substituting the words "fault" or "guilt" for the word "liability", which is extremely misleading. I believe these are often attempts to muddy the waters in order to hijack or divert attention from the real debate about liability.

This is what I am concerned about and, whilst I am always happy to accumulate new bits of knowledge anhd am grateful for the snippet you provided above, I am really not interested in p1551ng competitions about who has the most extensive knowledge of a wide range of legal issues.


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## MrHappyCyclist (20 Jun 2013)

User said:


> You were doing so well...
> 
> ...but you just couldn't help yourself...


So you still have nothing of substance to say on the matter but persist in point scoring nonsense.


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## User169 (21 Jun 2013)

HJ said:


> Have you ever noticed the way that people who have cycled in France always ban on about how much more space French driver give cyclist? Ever wonder why that is? The reason is very simple, France has the strictest "Strict Liability" laws in Europe (the Netherlands they only offer protection to children under 14, for example), the effect of this can be seen by comparing the death rates of cyclists in London and Paris. In 2011 alown, 16 cyclists where killed on the streets of London (and many more seriously injured), whereas in Paris there where zero cycle fatalities.


 
Is there any research on this (apologies if I have missed it in one of the many links in this thread)? I often hear people assert that presumed liability increases cyclist safety, but the only substantive argument put forward in support seems to be to draw a correlation between the UKs lack of presumed liability and the perception that cycling is less safe in the UK.

Hembrow (I know, I know) argues that it has little effect on driver behaviour and that other factors account for increased cyclist safety in NL (he does of course assume that as a given). I can see his point in the sense that if you ask anyone in NL what the law is regarding cyclists they'll rarely be able to give you an account of presumed liability beyond a vague appreciation that cyclists are somehow privileged over cars in the eyes of the law.

Not sure I really understand your point regarding NL providing protection only to children under 14: my understanding was that presumed liability applies to everyone. I think the point with children under 14 is that they cannot be held to have contributed to an incident, so the driver's financial liability cannot be adjusted downwards.


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## MrHappyCyclist (21 Jun 2013)

Delftse Post said:


> Is there any research on this (apologies if I have missed it in one of the many links in this thread)? I often hear people assert that presumed liability increases cyclist safety, but the only substantive argument put forward in support seems to be to draw a correlation between the UKs lack of presumed liability and the perception that cycling is less safe in the UK.
> 
> Hembrow (I know, I know) argues that it has little effect on driver behaviour and that other factors account for increased cyclist safety in NL (he does of course assume that as a given). I can see his point in the sense that if you ask anyone in NL what the law is regarding cyclists they'll rarely be able to give you an account of presumed liability beyond a vague appreciation that cyclists are somehow privileged over cars in the eyes of the law.
> 
> Not sure I really understand your point regarding NL providing protection only to children under 14: my understanding was that presumed liability applies to everyone. I think the point with children under 14 is that they cannot be held to have contributed to an incident, so the driver's financial liability cannot be adjusted downwards.


There is a good article on the situation in the Netherlands here: http://bicycledutch.wordpress.com/2013/02/21/strict-liability-in-the-netherlands/ The flowchart gives a summary of the position and agrees regarding the children under 14 case. What is clear from that flowchart is that, in incidents involving just a motorist and an adult vulnerable road user, if there is not sufficient evidence of fault on the part of the vulnerable road user, then the motorist is liable for all costs (that is presumed liability); if there is evidence of fault on the part of the vulnerable road user, then the motorist is still liable for 50% of the costs (so effectively 50% is strict liability), and the other 50% is determined based on the evidence. I have seen some accounts suggesting that, in practice, the bar tends to be set very high for evidence leading to some liability being placed on the vulnerable road user, but that is only anecdotal.

As far as any effect on driver behaviour is concerned, whilst it is easy to put forward a theoretical effect, I think it is virtually impossible to reach any reliable conclusion because there are so many confounding factors.

However, I don't think that is the most compelling argument for moving to presumed liability anyway; I think the best argument is simply that it is morally the right approach. In the (common) case where there is no conclusive evidence of immediate fault by either party, it fits well to the established principle of determining liability on the balance of probabilities. For example it is usually very clear that, had a collision been between two bicycles the probability is that the damages would be a tiny fraction of what they would be in the case of such a collision between a motor vehicle and a bicycle, so the very act of bringing the motor vehicle into the public space is bringing the majority of the risk to the situation. Even in the case where there is clear fault on the part of the vulnerable road user, it is still the case that the motorist brought a significant proportion of the risk to the situation, and that appears to be the rationale for the 50% strict liability element in the Dutch rules. It also seems rather unjust that a vulnerable road user who is seriously injured in an incident involving a motor vehicle should have to fight through the courts even to recover the costs of medical care, loss of earnings, physical and lifestyle adaptations to cope with resulting disabilities, etc. Finally, since such legal battles are very costly, it is possible that such an approach might actually reduce the costs of motor insurance slightly.


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## MrHappyCyclist (21 Jun 2013)

AnotherEye said:


> We managed to get a good discussion of presumed liability on local radio last week:
> http://yourlisten.com/channel/content/1 ... _Liability
> Edit of BBC Radio Sussex coverage: Marie Vesco Memorial Ride (04.06.2013)
> 00.00: News headline
> ...


Only just listened to this. As Crankarm predicted, very frustrating to listen to anyway. The presenter persisted in using the misleading words "guilt" and "innocence" instead of "liability", despite having been corrected by someone in a good text contribution very early on and by others during the discussion. Lots of ignorance and irrational prejudice, and the woman towards the end, whose only argument amounted to "motorists already have enough to contend with, without being held responsible for the consequences of their actions", was just plain stupid.
Thanks for the link, though; it does show how far we have yet to go in changing some attitudes that generally can be traced back to the misplaced sense of entitlement that some motorists hang on to.


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## spen666 (21 Jun 2013)

User said:


> Only if you don't understand the issue.


 
+1 to this.

The difference between strict liability and presumed liability is a bit like the difference between being charged with and being convicted of an offence


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## Recycle (22 Jun 2013)

Delftse Post said:


> Not sure I really understand your point regarding NL providing protection only to children under 14: my understanding was that presumed liability applies to everyone. I think the point with children under 14 is that they cannot be held to have contributed to an incident, so the driver's financial liability cannot be adjusted downwards.


 
I wish that would apply in the UK. There's no limit to how low insurance companies will stoop: http://www.bbc.co.uk/news/uk-england-northamptonshire-21351438


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