# presumed and strict liability



## dellzeqq (29 Jan 2012)

would people who know more about this than me care to tell us what they know?


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## Red Light (29 Jan 2012)

Strict liability already exists in the UK law in respect of Health and Safety, Product Liability, food preparation, environment, guns and drugs, speeding, drink driving etc. The principle is that _mens rea_ (the intention to offend) does not have to be shown, just _actus reus_, (the offence happened). Usually both are required for conviction but not in strict liability cases.

Many European countries also have civil law strict liability in respect of road accidents involving a vulnerable road user (pedestrian/cyclist) i.e. it is presumed the driver is liable unless the driver can show otherwise. It is civil law though in respect of gaining compensation not a criminal law in respect of gaining a conviction. That is its presumed liability not presumed culpability. 

It has not happened here and the Government has said it won't because it would be contentious and there is no clear evidence that it changes driver behaviour. The Cambridge Cycling Campaign has done a good summary in respect of cycling

What else did you want to know?


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## Alun (29 Jan 2012)

Is there a European directive on this?


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## MrHappyCyclist (29 Jan 2012)

I wrote to my MP about this a year ago and blogged about the reply. You can find my blog article here.

My concluding paragraph was this:


> This reply seems to boil down to: “here are loads of arguments as to why we should move to [presumed] liability, and there is research to back these arguments up, but we think there may be an outside possibility that these are wrong, and it might require some political work, so we really can’t be arsed”. Or am I being too harsh?


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## CamPhil (31 Jan 2012)

MrHappyCyclist said:


> I wrote to my MP about this a year ago and blogged about the reply. You can find my blog article here.
> 
> My concluding paragraph was this:





> This reply seems to boil down to: “here are loads of arguments as to why we should move to [presumed] liability, and there is research to back these arguments up, but we think there may be an outside possibility that these are wrong, and it might require some political work, so we really can’t be arsed”. Or am I being too harsh?


 
That seems to be an accurate summary of our government's attitude to their legal obligation to protect the right to life of vulnerable road users.


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## Alembicbassman (31 Jan 2012)

Strict Liability generally applies to licensing. i.e. if you don't have the licence, you commit the offence (driving, selling alcohol, owning a firearm etc...). It also applies to offences like being in posession of weapons i.e. you commit the offence unless you can show 'reasonable excuse' or 'lawful authority' . As said above, the mental element is removed. Ignorance is no defence in law, so a 'sorry I didn't know' won't wash.

I never dealt with Presumed Liability during my English Law studies, I think it's more of a European thing, I know in Scandanavia it applies to certain types of road accident. In criminal cases the standard of proof is always Beyond Reasonable Doubt, in civil law including tort (e.g. PI claims) it's on the balance of probability i.e. anything over 50% I would not like to think of Presumed Liability ever being applied in criminal cases. It would be troublesome in tort too as the English courts tend to issue judgments on the merits of the case, doctrines of general applicability cause problems.

Canada and New Zealand have a statutory compensation scheme for victims of accidents that limits the involvement of insurance companies and lawyers.


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## snorri (1 Feb 2012)

Alembicbassman said:


> I think it's more of a European thing,.


And we're in Europe but are being denied the benefits, why?


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## Alembicbassman (1 Feb 2012)

It's our adversarial justice system, everybody gets their day in court to argue their point, if they wish. Many continental countries operate an inquisitorial justice system which sees things differently. Presumed liability obviously saves time.

A local cyclist was slipstreaming a bus a few years ago, the bus slowed to turn left, the cyclist, sprinting head down, collided with the back of the bus and died. Under presumed liability it'd be the bus driver's fault, he had no knowledge the cyclist was so as he couldn't see him in the mirrors.

I'm sure presumed liability does not operate without certain caveats. Adherence to the law would be one - i.e. riding at night with suitable lights and reflectors, obeying traffic signals. Maybe even mandatory cycle training, compulsory insurance and helmet wearing too.


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## MrHappyCyclist (1 Feb 2012)

Alembicbassman said:


> A local cyclist was slipstreaming a bus a few years ago, the bus slowed to turn left, the cyclist, sprinting head down, collided with the back of the bus and died. Under presumed liability it'd be the bus driver's fault, he had no knowledge the cyclist was so as he couldn't see him in the mirrors.


That is not correct. Under strict liability, that would be the case, but under presumed liability the bus driver would be well able to argue that it was the cyclist's fault and would probably win.


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## stowie (1 Feb 2012)

Alembicbassman said:


> It's our adversarial justice system, everybody gets their day in court to argue their point, if they wish. Many continental countries operate an inquisitorial justice system which sees things differently. Presumed liability obviously saves time.
> 
> A local cyclist was slipstreaming a bus a few years ago, the bus slowed to turn left, the cyclist, sprinting head down, collided with the back of the bus and died. Under presumed liability it'd be the bus driver's fault, he had no knowledge the cyclist was so as he couldn't see him in the mirrors.
> 
> I'm sure presumed liability does not operate without certain caveats. Adherence to the law would be one - i.e. riding at night with suitable lights and reflectors, obeying traffic signals. Maybe even mandatory cycle training, compulsory insurance and helmet wearing too.


 
This is just misconception. Firstly, presumed liability wouldn't be assumed for criminal proceedings, only civil (ie. payment of insurance typically). It wouldn't be the bus driver's fault under presumed liability any more than it is the driver's fault now. It is simply the presumption of liability for payment of insurance. 

We have ad-hoc presumption of liability in motor insurance cases now. Such as in a rear end crash there is a presumption of liability on the person crashing into the rear. But in these events, liability can still be determined on the nature of the accident. In your example, we cannot say if the civil liability would fall on the bus insurance any more than we could now. I would have the opinion that presumed liability wouldn't make much difference in these types of cases.

Where it would make a difference is where an insurance company decides to put a case through the courts, especially in the case of a cyclist where they may not have insurance. I suspect that insurance companies may be less likely to "try their luck" through court (in the hope that the uninsured party is more likely to drop the case with less resources on their side) and would probably be more motivated to reach an agreement, unless the insurance companies think the nature of the accident genuinely shows the cyclist at fault. I can only think this is good.

But, of course, whilst the Daily Mail rants on about presumed liability enabling cyclists to claim insurance money from "hapless" motorists by hurling themselves at their cars then it is unlikely any rational debate can be had.

And also "presumed" liability is a million miles from "strict" liability, but it suits the more hysterical press to conflate the two.


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## Alembicbassman (1 Feb 2012)

I suppose you could have the situation where a driver is acquitted in a criminal court of careless driving - standard beyond reasonable doubt, but found liable in civil court in an insurance claim.


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## Alun (1 Feb 2012)

Alembicbassman said:


> I suppose you could have the situation where a driver is acquitted in a criminal court of careless driving - standard beyond reasonable doubt, but found liable in civil court in an insurance claim.


I'm sure that it happens regularly, they are 2 different things IMO.


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## rusky (1 Feb 2012)

Interestingly, this came up in the local chip wrapper http://www.theargus.co.uk/news/9502980._Blame_drivers_for_bike_crashes_/


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## PK99 (1 Feb 2012)

Alembicbassman said:


> I suppose you could have the situation where a driver is acquitted in a criminal court of careless driving - standard beyond reasonable doubt, but found liable in civil court in an insurance claim.


 

my smidsy driver got off in court but i had already had a 10k payout from his insurance company


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## MrHappyCyclist (1 Feb 2012)

rusky said:


> Interestingly, this came up in the local chip wrapper http://www.theargus.co.uk/news/9502980._Blame_drivers_for_bike_crashes_/


And what do you know, the very first sentence is a total misrepresentation: "Drivers who collide with cyclists should automatically be presumed guilty, a biking campaigner has said." Typical ignorant press sh1t-stirring. "Guilty" is nothing to do with it; that is a criminal law concept. Even using the word "Blame" is totally wrong. It is about liability in civil law, which boils down to who should bear what proportion of the cost of the damage. What chance have we got when these journalistic idiots are able to use such blatant BS to stir up the unthinking masses.


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## rusky (1 Feb 2012)

Her reply: 



> http://www.stricterliabilityforus.org.uk/. I did say to the reporter it
> wasn't about blame! It's called "proportional liability" or "Stricter
> liability". Road Peace and CTC are also supporters. The main points are
> below. These are quoted from that website.
> ...


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## Alembicbassman (2 Feb 2012)

User said:


> Firstly, it't not 'beyond a reasonsable doubt' - it's 'so that you are sure'...
> 
> Secondly, the reality is that the difference beyween the civil and criminal standards is not as stark as some would suggest. The civil standard is not necessarily 'lower' than the criminal standard - it's not just 51%/49%. After all, in civil proceedgings the more serious the matters alleged - and teh potential outcome for the respondent - the more cogent the evidence must be.


 
There's no strict legal definition of 'beyond reasonable doubt'. Most of the definiions are derived from case law, 'a high degree of certainty' is another definition.


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## Alembicbassman (2 Feb 2012)

Interesting watching the 'Coppers' documentary where a senior detective in the Notts Constabulary said his officers had to prove the case 100% to get a conviction, that was his understanding of the standard of proof. If a senior detective can't understand it how juries make sense of it I don't know.

With the English legal system favouring a black letter approach over the Continental interpretive approach (i.e what is in the spirit of the law) means we have problems understanding the laws that originate through the EU (straight cucumbers et al.). Presumed and Strict liability are probably dealt with differently in other legal systems than here.

I guess the emphasis is more on getting what best for the injured party rather than a concerted attempt to screw as much money out of the other side as it is here in the UK. Since most insurance cases never reach court even if presumed liability was put on a statutory basis would have little effect in the 'Real World'


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## spen666 (5 Feb 2012)

Alembicbassman said:


> Interesting watching the 'Coppers' documentary where a senior detective in the Notts Constabulary said his officers had to prove the case 100% to get a conviction, that was his understanding of the standard of proof. If a senior detective can't understand it how juries make sense of it I don't know.


 never occurred to you that juries are directed by the judge on the standard of proof needed?


> ....
> 
> I guess the emphasis is more on getting what best for the injured party rather than a concerted attempt to screw as much money out of the other side as it is here in the UK. Since most insurance cases never reach court even if presumed liability was put on a statutory basis would have little effect in the 'Real World'


 

Some strange thinking here

What is best for the injured party is somehow different from getting as much compensation as possible? Given the only ( in practice) remedy in a PI case is compensation, then how is it a difference?

Secondly, the change to presumed liability would have a massive effect in the real world as insurance companies would be compelled to settle more cases. The insurance companies only settle cases on the basis of their insured's legal liability. With presumed liability, you would find more cases are paid out on as the defendants are unable to rely on the victim not being able to prove the defendant was liable.


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## MacB (5 Feb 2012)

spen666 said:


> Secondly, the change to presumed liability would have a massive effect in the real world as insurance companies would be compelled to settle more cases. The insurance companies only settle cases on the basis of their insured's legal liability. With presumed liability, you would find more cases are paid out on as the defendants are unable to rely on the victim not being able to prove the defendant was liable.


 
What massive effect? I don't personally know any cyclists that would treat it as a licence to play 'chicken' with the traffic. In the real world we're actually not certain what would happen, we can make some educated guesses. A reduction in incidents could be one, a hike in insurance costs could be another, yet another could be improvements in traffic planning.

I wouldn't be dropping my guard coz I'm guaranteed a payout, I'd rather not suffer injury, or damage to my bike.


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## spen666 (6 Feb 2012)

MacB said:


> What massive effect? I don't personally know any cyclists that would treat it as a licence to play 'chicken' with the traffic. In the real world we're actually not certain what would happen, we can make some educated guesses. A reduction in incidents could be one, a hike in insurance costs could be another, yet another could be improvements in traffic planning.
> 
> I wouldn't be dropping my guard coz I'm guaranteed a payout, I'd rather not suffer injury, or damage to my bike.


Think you've misunderstood my post. I have never suggested anyone would play chicken. I was talking about how it would change insurance company's attitudes to payouts and reduce lengthy litigation


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## CamPhil (24 Feb 2012)

The supposed effect in countries that have presumed liability is that the road user's perception is altered concerning the risk to them in any incident involving a more vulnerable road user.

Sort of like hanging their wallet on the outside of their nice secure cage - they know that a collision will not cause them any physical harm, but they also know that it stands a very high probability of causing them financial harm.
People are generally risk averse when it comes to their finances.

It is said to lower insurance costs overall, since increased aversion to risk translates to more careful behaviour, fewer collisions, and lower claims.


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