Intimidating Motorists?

General cycling advice ( NOT technical ! )
rfryer
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Re: Intimidating Motorists?

Postby rfryer » 5 Jun 2019, 11:23pm

pete75 wrote:We'll just have to agree to differ on this. Quite frankly if one of my children had suffered such injuries the last thing on my mind would be making money out of it.

If I was maimed by a careless driver and couldn't work, needed my house converted to cope with a disability, and the prospect of long term nursing care, one of the first things on my mind would be who was going to pay for it all.

thirdcrank
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Re: Intimidating Motorists?

Postby thirdcrank » 6 Jun 2019, 7:14am

Let's remember that the thread title is Intimidating Motorists?

Some have taken that literally and there's also been some jumbling of different aspects of the legal system, combined with the implication that cyclists are innately innocent.

I'd suggest that the question involves deterring bad driving or encouraging good driving.

Broadly speaking, there's already plenty of legislation in place but it is increasingly unenforced. That creates a particular problem with "bad driving" - a term for the offences included under ss 2 and 3 of the Road Traffic Act 1988 (dangerous, careless and inconsiderate driving) which are defined in terms of expected driving standards, which are deteriorating in line with the collapse in enforcement.
http://www.legislation.gov.uk/ukpga/1988/52/contents
The downward trend in enforcement has probably passed the point of no-return.

This is only indirectly connected with implied/presumed liability, which relates to civil law (compo) and seems shrouded in fog.

mattheus
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Re: Intimidating Motorists?

Postby mattheus » 6 Jun 2019, 8:27am

thirdcrank wrote:This is only indirectly connected with implied/presumed liability, which relates to civil law (compo) and seems shrouded in fog.

There really isn't any fog - it's a perfectly workable system. Google how many countries use it. (and then google for problems with it, if you insist - happy to discuss.)

As stated upthread, there is good reason to think that PL would improve driver behaviour around vulnerable road users (via the simple, non-violent avenue of hitting their wallets!).

Vorpal
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Re: Intimidating Motorists?

Postby Vorpal » 6 Jun 2019, 9:38am

pete75 wrote:
We'll just have to agree to differ on this. Quite frankly if one of my children had suffered such injuries the last thing on my mind would be making money out of it.

Making money? Really?
In the case I listed above Bethany was brain damaged and had limited walking ability. I don't know how she is doing today, but 6 years after being hit by a car, she still required a lot of support for day to day life. The family were awarded £5 million in the original court settlement, and the insurance company appealed that, not on the basis that it was too much money, but on the basis of contributory negligence (not wearing hi-viz & walking on the worng side of the road, nevermind that she was walking on the side with a verge & that's where the driver hit her). I don't see how that's 'making money'. https://www.slatergordon.co.uk/resource ... -accident/

I know of someone who was hit by a car whilst cycling. The driver was considered at fault. The driver was offered a choice between a course and points. The person I know of was in hospital, off work for some time, and afterwards needed physio, but there was a long waiting list for the specialist in his area, so he saw a private physio, thinking he'd be reimbursed by insurance. Initially the insurance company admitted liability and offered him £1500. He didn't accept it on the basis it was too low. He sent them all of his expenses, etc. They came back with an offer of £2000 that included reductions for various things, like the age of the bike and equipment, and also said that he was 'going too fast' at an estimated 35 mph downhill, and therefore contributed to the crash. It was at this point that my friend got legal help. In the end, he settled for £5000, 2.5 or so years after the crash, even though he figured he was out at least £6000 and could demonstrate most of it (reciepts for fuel, physio, etc.). Because the alternative was a legal battle, and he needed the money.

In another case, a friend of mine who was severly injured when a driver turned into his path out of a side road had insurance through BC, which was good, because he needed their help resolving his claim. The driver was considered fully at fault, but the insurance company initially offered a few thousand pounds (apparently based upon a payout table). He was in ICU for more than a week, off work for months, had mutliple broken bones (ribs, legs, vertebrae), needed physio and various support equipment during his recovery, trips into London to see specialists, etc. BC advised him to wait to settle until he better knew the long term impact and ongoing costs of his crash. They also got him some interim payments to cover physio treatments and transport.

Motorists, through compulsory insurance, have the benefit of full representation & legal assistance by their insurers to deal with and pay any
claim against them for compensation. Furthermore, the insurance companies are primarily interested in paying out as little as possible. And normally start with very low offers. Cyclists and pedestrians, on the other hand, often have to get (potentially expensive) legal representation to prove their case. This is grossly unfair. If you don't want to accept my word for it, read the report linked here that summarises the case for presumed liability (prepared for Road Share in Scotland).

If the UK does not introduce presumed liability, the government need to do something else, such as require MIB to represent vulnerable road users in such cases, or establish some sort of independent victims' representation to do so; and do so automatically, not when people apply because of the stress or problems of dealing with insurance.
“In some ways, it is easier to be a dissident, for then one is without responsibility.”
― Nelson Mandela, Long Walk to Freedom

thirdcrank
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Re: Intimidating Motorists?

Postby thirdcrank » 6 Jun 2019, 10:28am

mattheus wrote:
thirdcrank wrote:This is only indirectly connected with implied/presumed liability, which relates to civil law (compo) and seems shrouded in fog.

There really isn't any fog - it's a perfectly workable system. Google how many countries use it. (and then google for problems with it, if you insist - happy to discuss.)

As stated upthread, there is good reason to think that PL would improve driver behaviour around vulnerable road users (via the simple, non-violent avenue of hitting their wallets!).


This is hardly the first time this has been discussed on here, but I don't remember a clear explanation of how it might work within our wider legal systems. (We have two, one in E&W, the other in Scotland.) Our existing systems are important because there's unlikely to be a total change, and that possibility has been further reduced by Brexit, one of whose rationales has been preserving our legal system from foreign interference.

Bearing in mind that many drivers are not personally responsible for their own third party insurance, I find it difficult to see how it would change driver behaviour across the board, without other aditional measures. Re criminal offences, which as I have tried to explain are not directly related to insurance and compo, other countries have systems which involve an inquiry into what happened, rather than a search for guilt. The expert spinners in our legal system dub the former "inquisitorial" to give the air of Torquemada and chums.

mattheus
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Re: Intimidating Motorists?

Postby mattheus » 6 Jun 2019, 10:53am

thirdcrank wrote:This is hardly the first time this has been discussed on here, but I don't remember a clear explanation of how it might work within our wider legal systems. (We have two, one in E&W, the other in Scotland.)

Why would there be a problem? Strict liability already exists in UK law for some H&S/workplace issues. It's only an issue of financial liability*. If you perceive knock-on effects, let us know.


Bearing in mind that many drivers are not personally responsible for their own third party insurance, I find it difficult to see how it would change driver behaviour across the board, without other aditional measures.

Are you referring to drivers of company-owned vehicles? Well let's worry about the vast number of private car/van drivers first (and the self-employed). A win's a win!

There will be some effect from employers finding their premiums going up, and punishing/sacking careless drivers. Some big companies self-insure so they will see compo pay-outs as a direct cost, which won't be looked at kindly when the driver's next pay review comes around ...

*As you say:
...criminal offences, which as I have tried to explain are not directly related to insurance and compo

slowster
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Re: Intimidating Motorists?

Postby slowster » 6 Jun 2019, 11:35am

thirdcrank wrote:This is hardly the first time this has been discussed on here, but I don't remember a clear explanation of how it might work within our wider legal systems. (We have two, one in E&W, the other in Scotland.) Our existing systems are important because there's unlikely to be a total change, and that possibility has been further reduced by Brexit, one of whose rationales has been preserving our legal system from foreign interference.

I'm not aware how it works in other countries, but I imagine it would simply mean that where there was a civil case arising from an accident involving a vehicle driver and cyclist where the cyclist was injured or their bike damaged, the starting point for the burden of proof would switch from being on the cyclist to prove that the driver was negligent, to being on the driver to prove that they had not been negligent. (Proof in civil cases being on a balance of probabilities.)

This is not quite so outlandish and alien to our legal system as it might first seem (presumption of innocence etc.). There are other circumstances already under which the burden of proof can switch from plaintiff to defendant. An example is 'res ipsa loquitur' (the thing speaks for itself), a legal principle which developed because very often it was obvious that a plaintiff must have been negligent and responsible for the defendant's injuries, but there were no third party witnesses to say precisely what happened and exactly what the plaintiff had done/how the defendant came to be injured.

For example an employee is found dead in a factory as a result of physical injuries next to a machine which has dangerous exposed moving parts: the employer will held liable unless they can provide evidence that proves they were not negligent, e.g. evidence that it was the employee that removed the guards from the machine 5 minutes before the accident, despite the employee having being properly trained and clearly warned not to remove the guards, and despite the employer being pro-active in checking regularly that the guards were fitted and in good condition and suitably disciplining any employee caught removing the guards. Otherwise it is simply presumed that the employer must have been responsible for the guards being removed, whether it was done by the employer personally, vicariously (by another employee), or by the deceased because the employer had failed to train them properly and supervise them and/or tacitly encouraged it because productivity increased without the guards in place.

The difference between something like res ipsa loquitur and presumed liability for drivers, is that the former usually requires it not to be realistically possible that anyone other than the defendant could be responsible for the plaintiff's injuries (e.g. a third party or the defendant themself). Presumed liability for drivers raises the prospect of drivers' insurers having to pay for injuries to cyclists even though it was the cyclist who was negligent/the cause of the accident. Arguably, such unfairness in what would probably be a small percentage of cases is justified by the much larger number of incidents where the driver is at fault but it cannot be proved (especially when considering cases where the cyclist has suffered life changing injuries and/or is killed and their family has lost its breadwinner).

I'm sceptical that presumed liability would improve driving standards, but I imagine it would increase the sale of dashcams to drivers who want to be able to prove their innocence and have proof of the negligence of others (whether cyclists or other drivers).

thirdcrank
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Re: Intimidating Motorists?

Postby thirdcrank » 7 Jun 2019, 9:29am

This is based on something I prepared earlier.

With thanks to snibgo here's the report of a European Court of Human Rights (ECHR) judgememt in the case of O’Halloran and Francis v. the United Kingdom
http://cmiskp.echr.coe.int/tkp197/view. ... 6DEA398649]
(One unusual feature is that the UK Govt., won and with a clear cut decision at 15 to 2.)

This was about a fundamental principle in our legal system: the right to avoid self-incrimination AKA the right to silence. This had arisen because of the increased use by the police of camera enforcement, which inevitably involves the registered keeper of the vehicle being required to identify the alleged offender, who may be themself.

IIRC, a prosecution had already failed in Scotland on the grounds that an involuntary confession was inadmissible. There was another broadly similar one in England and it went to the top shop (which covers both countries) and then on to the ECHR.

The ECHR judgment seemed to rely heavily on a judgment in the Privy Council (the Supreme Court as was) delivered by Lord Bingham of Cornhill which began

The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. ....

Tucked away towards the end is the concurring judgment of Judge Javier Borrego Borrego (Spain) who found for the UK but was unhappy with the arcane way his colleagues got there. With a directness worthy of a cycling forum, he quotes another bit of Lord Bingham's judgment
"All who own or drive motor cars know ... that by doing so they subject themselves to a regulatory regime ...”

Adding
...we must ask: why spend twelve pages trying to explain what everyone already knows?


I think that shows that our legal eagles understand the issues. It would be good to build on that. I think it's correct to say - although I'm not going looking for a link - that perhaps a decade ago the former Association of Chief Police Officers (ACPO) proposed creating a separate legal framework for dealing with summary traffic offences, which briefly meant fixed penalties without the automatic right to go to court instead. This was rejected by the government as "decriminalising" offences, the implication being that it trivialised them. What's the biggest deterrent: a belief they can't touch you for it or the certainty of being clipped say a £ton and three points or more?

mattheus
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Re: Intimidating Motorists?

Postby mattheus » 7 Jun 2019, 2:00pm

That goes without saying,

slowster
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Re: Intimidating Motorists?

Postby slowster » 7 Jun 2019, 2:56pm

thirdcrank wrote:I think that shows that our legal eagles understand the issues. It would be good to build on that. I think it's correct to say - although I'm not going looking for a link - that perhaps a decade ago the former Association of Chief Police Officers (ACPO) proposed creating a separate legal framework for dealing with summary traffic offences, which briefly meant fixed penalties without the automatic right to go to court instead. This was rejected by the government as "decriminalising" offences, the implication being that it trivialised them. What's the biggest deterrent: a belief they can't touch you for it or the certainty of being clipped say a £ton and three points or more?

The problem with legal punishments (whether fines or points) for the relatively less serious driving offences, like careless driving, is that they don't appear to be very effective in reducing the offending rate, in reducing accidents as a result of such poor driving and in making the roads safer. It obviously doesn't help that police resources are so stretched that they are unlikely to actively seek out such offending (the various close pass initiatives are an isolated exception that demonstrates how something which should be policed as a matter of routine is only tackled by a handle of traffic officers for the limited period of the initiative). I suspect the offences and the legal sanctions do little more than help to prevent current average driving standards getting worse.

Something that I believe would potentially make a huge difference would be to give police the power to require a driver to re-take their driving test. So instead of issuing a penalty notice with points on the license and/or a fine, once the threshold of careless driving was crossed, the police would give the driver, say, 3 months to get re-tested. During that time the driver would be able to carry on driving. If they passed the test that would be the end of the matter, but if they failed they would then lose their full license and be issued with a provisional license in its place, i.e. they would be treated as a learner driver and would have to be accompanied by a full license holder until they had again taken and passed the test. Drivers should be able to appeal the decision to re-take the test, but if they lost the appeal I would suggest they then be required to take the extended test for disqualified drivers instead (which should make the driver think twice about an appeal).

The prospect of being required to re-take the test would probably be something that most of us would fear much more than a fine or points, and consequently should have a stronger deterrent effect.

Despite the fact that most drivers would fear, even hate, to have to undergo a re-test, I suspect that such a measure would have widespread public acceptance, because it is harder to argue against the logic of saying that people who are guilty of careless driving should be able to prove, via the test, that they are able to meet the minimum legal standard for determining that someone should be allowed to drive unaccompanied. (I suspect there would be a cognitive dissonance - we would all know that we were guilty of similar poor driving at some point, but we would not have a lot of sympathy for someone who was caught and required to re-take the test, nor would we feel that they should be allowed to continue to drive on a full license if they failed the re-test).

Another likely advantage of such a policy, is that it may encourage/help the police to be more pro-active and assertive in enforcement. On a recent thread it was mentioned how traffic officers reviewing video evidence submitted by a cyclist would not take enforcement action unless the driving was particularly and unequivocally poor and unsafe. If the decision the officer has to make is not "Do we issue a fine and points?", but "Should we get them to take a re-test to make sure that the video is not representative of their driving being below the standard of a competent driver?", it becomes potentially an easier decision for the officer to make, especially to take action on any seemingly borderline case ("Let's just make sure they meet the legal minimum standard").

Obviously serial offenders should not be able to repeatedly wipe the slate clean by re-taking and passing the test each time they are caught. Repeat offending would demonstrate that the driver was able to drive safely (i.e. they had re-taken and passed the test) but was choosing not to do so, and so then points, fines and bans would be the next step in legal sanctions.
Last edited by slowster on 7 Jun 2019, 8:10pm, edited 2 times in total.

mattheus
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Re: Intimidating Motorists?

Postby mattheus » 7 Jun 2019, 3:09pm

My gut reaction to that is positive.

The problem with re-tests (and also with the idea of making ALL drivers re-test more frequently) is - apparently - resources. So you might get a situation where officers/courts hardly ever use this sanction.

Nevertheless, worth looking at, IMHO.

rfryer
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Re: Intimidating Motorists?

Postby rfryer » 7 Jun 2019, 4:19pm

slowster wrote:Another likely advantage of such a policy, is that it may encourage/help the police to be more pro-active and assertive in enforcement. On a recent thread it was mentioned how traffic officers reviewing video evidence submitted by a cyclist would not take enforcement action unless the driving was particularly and unequivocally poor and unsafe. If the decision the officer has to make is not "Do we issue a fine and points?", but "Should we get them to take a re-test to make sure that the video is not representative of their driving being below the standard of a competent driver?", it becomes potentially an easier decision for the officer to make, especially to take action on any seemingly borderline case ("Let's just make sure they meet the legal minimum standard").

Although I'm generally in favour of your suggestion, I don't really get the bit quoted above. You don't say whether retesting should be at the expense of the offender or the state; I'd be strongly in favour of it being the offender's problem. Given that, I see the punishment (of taking another test) as being significantly more draconian than "fine and points"; a bit cheaper, but also inconvenient, with a real risk of extreme inconvenience when the test is failed. In that context, why is that an easier decision for the officer to make?

I'm also not in complete agreement with the assertion that "legal punishments (whether fines or points) for the relatively less serious driving offences, like careless driving, is that they don't appear to be very effective". I'd say that the appearance of inefficacy was entirely due to lack of application of the existing legal punishments. How many people do you think would get done for speeding if it was a known fact that as soon as you exceeded the limit by 1mph you would instantly be fined and pointed?

slowster
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Re: Intimidating Motorists?

Postby slowster » 7 Jun 2019, 7:33pm

rfryer wrote:In that context, why is that an easier decision for the officer to make?

Changing the question from "Should we punish this person?" to "Should we make sure this person is safe to drive?" alters the perspective. When faced with important and difficult decisions, especially in any official capacity, people tend to be conservative and err on the side of caution. For the first question erring on the side of caution will be more likely to result in a decision not to punish, for the second question it will be more likely to result in a decision to re-test the driver. That change in perspective is likely to be shared by judges, juries, other drivers and society at large.

With that change in perspective, the fact that the cost and inconvenience of a re-test might be worse than a fine and points becomes irrelevant, because it is not a punishment and the price is simply what everyone has to pay to undergo the statutory driving test: it's the cost of the service. The real risk of extreme inconvenience if the test is failed is similarly not a punishment nor is it something which would weigh on the mind of a police officer (or anybody else), for the reason that passing or failing the test is something entirely under the control of the driver. If they failed the test society at large would not take the view that taking away their full license was harsh. On the contrary, society would consider it unacceptable that someone who had failed the test was allowed to keep their full license.

With regards to efficacy and enforcement, one of the problems with enforcement of driving offences like careless driving (unlike the example you use of speeding) is the element of judgement and subjectivity involved on the part of the police, CPS and juries about what constitutes careless driving and whether a particular instance meets that threshold. The suggestion I have made would involve a relatively quick and inexpensive process, similar to requiring a driver to attend a speed awareness course rather than the matter going to court and having to present the evidence etc.

thirdcrank
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Re: Intimidating Motorists?

Postby thirdcrank » 7 Jun 2019, 8:30pm

Re insurance.

A fundamental bogey for insurers is that indemnifying policyholders against their own negligence may tend to make them more negligent, eg somebody insured against burglary may be less concerned about security than somebody without it. A fundamental aspect of third part motor cover is that the policyholder has to be identified before there can be a claim against there policy, no matter what the rules are for settling claims. That needs a good system of investigation of collisions - something that the authorities have all but given up on in the UK, except in the gravest of crashes. The Motor Insurers Bureau (MIB) data published regularly - dressed up as the extra costs to insured drivers - indicate that quite a lot of drivers have no insurance cover, so they seem unlikely to be bothered by the system of settling claims. Again, it seems to me that uninsured vehicles must be an indicator of a lack of enforcement. On a brighter note, the power of the police to seize uninsured vehicles seems to be effective although it was introduced after I retired so I don't know how much of that is spin.

Mike Sales
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Re: Intimidating Motorists?

Postby Mike Sales » 7 Jun 2019, 8:47pm

thirdcrank wrote: On a brighter note, the power of the police to seize uninsured vehicles seems to be effective although it was introduced after I retired so I don't know how much of that is spin.


I am interested in that so I searched. This is a bit out of date.

The Motor Insurers' Bureau (MBI) warning comes after its new estimates suggest around 118,500 vehicles with no cover will have been confiscated by the end of the year.
This is a 2% rise on the 116,000 motors seized in 2014 and around 2,000 up on its target for the year. Its 116,500-vehicle goal was reached a fortnight early.


https://www.rac.co.uk/drive/news/motoring-news/seized-uninsured-cars-on-the-up/