driver at fault petition

[spindrift]

http://www.colchester-cycling.org.uk/News/roadsafetypetiti.html

As stated on the petition, the current burden of proof of liability rests with the cyclist or pedestrian - they need to make a case against the insured party in order to claim on the motorists' insurance. If they choose to do this, and the insurance company contests it, then the case goes to civil court, and a judge will decide which party has been careless/reckless.

However, most cases do not get this far - either no claim is made, or a claim is made and abandoned, and the cyclist or pedestrian is assumed to be to at fault.

Strict liability would reverse that. The motorist is - in insurance terms - automatically liable. If the motorist wishes to contest the case, they have to take the issue to court to try to prove the cyclist or pedestrian was careless/reckless.

I believe that, in Europe, this test of recklessness is dropped in the case of a child aged one to nine. The thinking is that they are not fully able to assess a road situation: the motorist should have altered their driving behaviour to take into account the possibility that children were likely to be present and/or (if they had seen them) likely to act in an unpredictable manner.

As for the confusion between criminal and civil cases, a European judge operating under Roman law might possibly take strict liability into account in a criminal case - I simply don't know! In Britain, with a criminal court jury, strict liability would only have an effect if it had changed public perceptions and attitudes, and this could be reflected in how the prosecution presented a case. As always, a final decision of criminal guilt would rest with a jury.

Interestingly, in the recent case in which two UK motorists caught by a speed camera tried to claim they could not be forced to incriminate themselves, the European Court of Human Rights judgement noted that people "who choose to keep and drive cars" have implicitly "accepted certain responsibilities" under UK law.

I'm not a lawyer but, surely, strict liability would simply be an extension of this aspect of that judgment.

As far as acceptance in the UK is concerned, there is possibly a good case here for a case to be taken to the European Court of Human Rights - why should we be worse off than cyclists/peds in Holland and Germany?

 

[CotterPin]

Government response

Downing Street has responded to the petition. Note the excessive use of the "a" word. Apparently it's just one of those things when someone dies on the road and we should get over it.

http://www.pm.gov.uk/output/Page13961.asp

"The Government recognises the potential tragedy that can be caused by serious road traffic accidents. It shares the concern that vulnerable road users should be properly protected. Accidents can occur for many reasons and the outcome of an accident, for example a death or serious injury, is not necessarily as a result of a motorist acting unreasonably or driving in a dangerous manner. Motorists should not be unfairly penalised but it is right that they should always have in place insurance cover for damage to third parties and to their property and that vulnerable road users should be able to claim against it when liability has been proven.

"Most claims for damages, including those for personal injuries, are brought as negligence claims. For a negligence claim to succeed the claimant must show that the defendant had a duty to take reasonable care towards the injured party, and that as a result of a breach of that duty, the injury was caused. It must also be shown that the type of loss or injury for which damages are being claimed was a foreseeable result of the breach of the duty.

"The determination of liability in individual cases is a matter for the courts, having due regard to all the circumstances of the case and the actions and standards that it is reasonable to expect from each of the parties involved. Where liability is determined in favour of a claimant, under the principle of contributory negligence the amount of any damages awarded may be reduced to reflect the extent to which the claimant's own negligence may have contributed to the injury.

"It would not be appropriate to change the law to provide that motorists should automatically be liable for any accident involving a motor vehicle and a pedestrian or cyclist. This would lead to unfair results in cases where the motorist is driving entirely responsibly and the accident is caused by the irresponsible behaviour of the pedestrian or cyclist. The current law enables the court to decide where responsibility for the accident lies and to award damages accordingly."

 

[gambatte]

The current law enables the court to decide where responsibility for the accident lies and to award damages accordingly."

<sarc>Just like it allows it to impose sentences accordingly.......<sarc>

 

[spindrift]

It would not be appropriate to change the law to provide that motorists should automatically be liable for any accident involving a motor vehicle and a pedestrian or cyclist.

That's not what the petition said.

 

[snorri]

The fear is

Would you like to pay £100 a year more, because some 'yoof' shoots out of an alley, straight in front of you, and theres no other witnesses?

That may be the fear, but it would not be the reality. If drivers were required to take more responsibility for their actions they would drive more carefully in the presence of pedestrians and cyclists, resulting in a reduction in injury and damages, which in turn will reduce the number of insurance claims. Less money paid out by insurance companies and reduced insurance premiums for drivers.
Everyone's a winner, less injury and grief for cyclists, reduced insurance premiums for drivers.

 

[CotterPin]

That may be the fear, but it would not be the reality. If drivers were required to take more responsibility for their actions they would drive more carefully in the presence of pedestrians and cyclists, resulting in a reduction in injury and damages, which in turn will reduce the number of insurance claims. Less money paid out by insurance companies and reduced insurance premiums for drivers.
Everyone's a winner, less injury and grief for cyclists, reduced insurance premiums for drivers.

Shame the government can't see that. This is the usual kowtowing to the motorist lobby.

 

[spen666]

Would you like to pay £100 a year more, because some 'yoof' shoots out of an alley, straight in front of you, and theres no other witnesses?

1/

Liability would not be the motorists in this situation. You've not understood properly what strict liability means.

2/

Countries that have adopted strict liability have seen accidents fall because idiot drivers take more care. Fewer accidents means lower premiums, not higher.

Sadly it is you who appears not to have understood what strict liability means.


Strict liability is where the person is held responsible ( ie liable) irrespective of the cause.

The petition itself is misleading as I said on this thread back in September.

There is a huge difference between strict liability and changing the presumption of guilt ( in civil sense). In other European countries the presumption, in the absence of evidence to the contrary is that the driver of a motor vehicl is liable. This is a rebuttable presumption. It is totally different to strict liability


Can you name any country who have introduced a system of strict liability rather than a rebuttable presumption?

 

[spen666]

Holland, Belgium and Sweden have 'presumption of liability' (its not 'strict liability' or 'presumption of guilt' as you don't have 'guilt' in civil cases) laws. In Belgium it is related to vehicle size - e.g if a lorry that hits a car then the presumption of liability will apply to the lorry.

I Agree- too busy thinking of criminal work - it is of course changing the presumption of liability