presumed and strict liability

[dellzeqq]

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

 

[Red Light]

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?

 

[Alun]

Is there a European directive on this?

 

[MrHappyCyclist]

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?

 

[CamPhil]

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.

 

[Alembicbassman]

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.

 

[snorri]

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

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

 

[Alembicbassman]

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.

 

[MrHappyCyclist]

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.

 

[stowie]

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.

 

[Alembicbassman]

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.

 

[Alun]

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.

 

[rusky]

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

 

[PK99]

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

 

[MrHappyCyclist]

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.