'Strict Liability' laws

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CJ
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Re: 'Strict Liability' laws

Postby CJ » 16 Oct 2012, 1:04pm

meic wrote:
How can anyone can use such a machine in such a dangerous state in such circumstances and not even be banned from driving is completely beyond me.


Because a very large proportion of the population, probably a majority, would have been just as likely to do exactly the same thing as he did (without bald tyres). Those of us that set off on an icy morning, having made ourselves aware of the fact it is icy and driving in a manner which is suited to icy conditions are a distinct minority.

Exactly so. Because the test of whether someone is guilty of careless or dangerous driving (whether or not death is caused thereby) is a comparison with what the average so-called careful driver would have done. And as we who cycle the roads know from our daily experience, the average British driver is not careful enough!

Worse: the normalcy of careless impatience is reinforced by the decisions of our courts - assuming a case gets that far. I think the worst recent example is the failure of two juries to convict the killer of Peter Stubbs, who neglected to slow down when she was dazzled by low sun, but drove on at a speed far in excess of that which would enable her to stop in the distance she could see to be clear. The average person/driver obviously reckons that it's more important to 'make progress' than take care - and expects that everything in front and behind them is proceeding on the same premise, at a similar speed. And sad to say, that's probably true most of the time, which is why our rural main roads are 20 to 30 times more lethal to cycle on per mile, than minor roads in towns.

Anthony Maynard had been killed in similar circumstances a couple of years earlier. His relatives were incensed that the CPS did not even prosecute. But it seems the CPS was right: the British public do not think it is reasonable for a motorist to limit their speed on main roads, to that which would enable them to avoid hitting the odd cyclist they might perhaps encounter. Judge Tobin was clearly of that opinion when it came to the killing of Pat Kenny.

When I visit countries like Germany, I can't help feeling they've got a better system in all sorts of ways. Not only more and better cyclepaths, but laws (of which presumed liability is one) that motivate drivers to respect the priority of those paths at junctions and a system of policing (mentioned by Thirdcrank) that commands adherence to those laws not only through the laws themselves but the social norms they reinforce.

I think that the average British driver probably wants to drive within the speed limit and more carefully in general, but is bullied by a badly behaved and impatient minority who aggressively tailgate and noisily overtake anyone who holds them up. Thanks to a lack of traffic law enforcement they get away with it most of the time and boast of how it should only take X minutes/hours to get to Y, generating a climate of opinion in which anyone who doesn't drive at or above the limit wherever they can get away with it, or holds back behind a cyclist they might easily squeeze by, becomes regarded as a dithering fool. I don't know how we change that, but we must, and presumed liability is at least a fairy step in the right direction.
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Shootist
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Re: 'Strict Liability' laws

Postby Shootist » 16 Oct 2012, 1:12pm

pete75 wrote:Here's what the top 'accident' investigator said at the inquest . In his opinion the state of the tyres was irrelevant but the speed the man drove at was excessive for the conditions.

Driver ‘could have avoided' cyclists
Jun 26 2007 By Roland Hughes

THE driver of a car who killed four members of Rhyl Cycling Club when he lost control on ice "could have avoided them" – an expert claimed yesterday.
A collision investigator told the inquest into the deaths of the cyclists on the A547 near Abergele that Robert Harris should have had full control of his car after the initial skid.
PC George Skinner also blamed Mr Harris, of Abergele, for failing to drive at an appropriate speed for the road conditions and said that had he done so, the accident could have been avoided.
PC Skinner arrived on the scene within half an hour of the tragedy and confirmed some ice on the road.
But he said yesterday that the ice was on the road only in patches, and that there were enough dry patches on the road for Mr Harris to regain control of his vehicle.
He said Mr Harris should have paid attention to freezing conditions that morning, and not driven at 55mph, his estimated speed before the crash.
"It would have to be accepted that he failed to observe the ambient temperature display in his vehicle," the officer said.
"He set off on his journey having scraped ice off the window of his car, and subsequently drove through countryside where visible frost lay.
"He drove in an inappropriate manner for the prevailing conditions."
But he added: "In my opinion, there was sufficient grip available to the driver to control the vehicle.
"Had he driven according to the prevailing road conditions, as had the vast majority of motorists before this collision, then I am of the opinion this collision could have been avoided."
Mr Harris had told the hearing last week that his car slipped on ice and he was powerless to stop the vehicle veering into the cyclists’ path on the A547.
He had been driving from his Abergele home to work as a security guard at B&Q in Rhyl when the collision happened last January. He told police in the days after the crash: "I just lost control – I tried to counter the skid.
"All I could think of was not to hit them."
Last August, Mr Harris was fined and handed points for having three defective tyres, although PC Skinner said they played no part in the handling of the car on the day of the tragedy.
The inquest also heard that the force of the collision projected Wayne Wilkes 37 metres into an adjoining field, and Dave Horrocks 31 metres.

http://www.dailypost.co.uk/news/in-dept ... -19356834/


Now that's more interesting than the "Two wheels good, four wheels bad" approach. Interesting because it must be assumed that this officer said the same to CPS in his statement and they ignored it or the driver would have been charged with causing death by careless driving. I would take some issue with the officer about there being sufficient grip to retain control of the car on a road which contained patches of black ice. Probably the most difficult surface there is to maintain control on.

Presumably the CPS, an organisation noted for it's incompetence in any challenging situation, decided in it's wisdom that a defendant who relied upon the presence of black ice on the road as a defence would be likely to sway a jury in his favour. Quite possible I would suggest. If the officer's report can be relied upon I would say that the driver should have been prosecuted. A failure to do so would not be down to the court however, as they can only convict for offences charged. And the prosecution case would be slightly marred by the officer's opinion that the car could have been controlled. Not enough, I would have guessed, to prove beyond reasonable doubt if a competent defence was mounted. I would have preferred to see the case tried though, whatever the probabilities. It would have been in the public interest.
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Geriatrix
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Re: 'Strict Liability' laws

Postby Geriatrix » 16 Oct 2012, 1:25pm

reohn2 wrote:The "law" is an ass and needs to be changed.
Which begs the question.Will it be? We all know the answer.


Does the law need to be changed or the way we manage it?

At the risk of boring everyone I'll repost something I posted in another thread on industrial safety which I think has bearing:

The basis of industrial safety has its origins in safety theory developed in the 1930's by Herbert Heinrich - an American industrial safety pioneer. Heinrich theorised that for every serious casualty there was "x" number of minor casualties. Likewise, for every less serious casualty there was "x" number of incidences. This is known as Heinrich's triangle and the important point that it makes is that the only difference between the incident that has no consequences and the one that results in a serious casualty is chance. If you can reduce the number of incidences you will reduce the number of casualties.


In the area of Heinrich's study x=30, but its not a fixed number, it's a risk variable that depends on the type of industry but for the sake of example, I'll use 30 to illustrate my point.

I have first hand experience of the mining industry where Heinrich theory forms the foundation of the way safety is managed in two important ways.

1. if you can't reduce the incidences, you can't reduce the casualties.
2. Using Heinrich’s ratio, If every serious incident has 30 minor casualties, and every minor casualty has 30 incidences, it means the for every serious casualty there has possibly been 900 incidences which through chance alone have not resulted in a serious casualties. This means that there is not just individual culpability, but organisational culpability too. You can't do something 900 times without it NOT being noticed at a supervisory or management level so the management is either negligent or turning a blind eye.

Point 2 is a statistical possibility not an absolute fact but when there a serious casualty underground in a mine, and the cause is not obviously and “act of god” then a process of investigation performed by government mine inspectors starts. In this process the safety practice of the line management from the mine manager to those responsible for safety in the location of the incident is placed under forensic scrutiny. As a trainee engineer I witnessed this process after a fatality so I can tell you that for those involved it makes a tax audit seem like a visit from the vicar.

This process is well known (and feared) within the mining industry and profoundly influences safety culture. EVERYONE has a sense of accountability. Incidences are taken seriously not ignored. It makes you pay attention to the way you work.

Compare this to the way we manage road safety. When a driver for example uses a mobile phone behind the wheel (that's an incident in the Heinrich triangle) and nothing happens, rather than seeing this as luck, the driver becomes deluded into believing that HE can do this safely and his behaviour becomes positively reinforced. It doesn't take long before the law applies to someone else and his behaviour becomes routine practice. And this happened in very dimension of driving (or cycling) it doesn't just happen with mobile phones.

It gets worse because those responsible for managing or enforcing the safety are turning a blind eye as well. The police don't act on incidences because they are too “minor”. The CPS wont prosecute and the courts are passing sentences that offer no deterrent.

There doesn't appear to be accountability or any sense of culpability at ANY level.

Perhaps strict liability, or whatever you want to call it will bring some form of accountability back into the frame but I think that its accountability that should be the focus of attention rather than the law itself.
For a successful technology, reality must take precedence over public relations, for nature cannot be fooled - Richard Feynman

Geriatrix
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Re: 'Strict Liability' laws

Postby Geriatrix » 16 Oct 2012, 2:29pm

I read CJ's post after typing up and submitting mine. My post wasn't as articulate but I was trying to say the same thing in a different way.
For a successful technology, reality must take precedence over public relations, for nature cannot be fooled - Richard Feynman

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Re: 'Strict Liability' laws

Postby reohn2 » 16 Oct 2012, 9:52pm

Geriatrix wrote:
reohn2 wrote:The "law" is an ass and needs to be changed.
Which begs the question.Will it be? We all know the answer.


Does the law need to be changed or the way we manage it?


Possibly.
The,detection rate/punishment levels definately need to be looked at if there's any intention to reduce the crime rate.
But as I've said so many times on here,the problem is a social one not just confined to the roads.And my belief that we live in criminals paradise isn't one that will be changed soon,more's the pity.
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Re: 'Strict Liability' laws

Postby snibgo » 17 Oct 2012, 5:39am

Yes, I think the law should be changed. Currently careless applies "if (and only if) the way he drives falls below what would be expected of a competent and careful driver." Which is another way of saying that "careless" means "not careful", which is true but not very helpful.

"Dangerous" add the word "falls far below". How far is far? How long is a piece of string?

It seems to me that the law should state that injuring or killing another law-abiding person is one definition of "dangerous". Thus a car driver who runs into and injures a cyclist, provided the cyclist was cycling legally, would automatically be driving dangerously.

Laws by themselves make little difference, but the attendant publicity might help change society's appalling attitude that safety is subordinate to speed.

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Re: 'Strict Liability' laws

Postby anothereye » 17 Oct 2012, 8:51am

snibgo wrote:... It seems to me that the law should state that injuring or killing another law-abiding person is one definition of "dangerous". Thus a car driver who runs into and injures a cyclist, provided the cyclist was cycling legally, would automatically be driving dangerously.
I disagree. I want to see more prosecutions for both careless and dangerous driving regardless of whether anyone is injured or killed; why wait for a collision before apprehending bad drivers, we see them everyday?
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Re: 'Strict Liability' laws

Postby [XAP]Bob » 17 Oct 2012, 9:12am

anothereye wrote:
snibgo wrote:... It seems to me that the law should state that injuring or killing another law-abiding person is one definition of "dangerous". Thus a car driver who runs into and injures a cyclist, provided the cyclist was cycling legally, would automatically be driving dangerously.
I disagree. I want to see more prosecutions for both careless and dangerous driving regardless of whether anyone is injured or killed; why wait for a collision before apprehending bad drivers, we see them everyday?

Not an exclusive definition. If you kill/injure then you were being dangerous.

You might also have been dangerous and lucky.
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Re: 'Strict Liability' laws

Postby Shootist » 17 Oct 2012, 9:41am

Careless driving? Everyone here that drives a car has at some time driven it carelessly. Everyone here who rides a bike has at sometime ridden it carelessly (Also an offence BTW). Momentary carelessness is a human enough thing of which we all have been guilty at some time or other. Section 3 of the Road Traffic Act also contains the offence of inconsideate driving. Now, inconsiderate driving requires a state of mind, a presence if you will, of an intention, which seems to be the far more serious behaviour, but hardly anyone is prosecuted for such an offence.

We do not need new laws. For God's sake we have all the laws we need, and as many again that we don't. Instead, we need to return to the idea that prosecutions and their attendant punishments should be more widely used. As has been mentioned before, at one time, any road traffic 'accident' resulted in a full prosecution file being submitted by the police, and rare it was that there was no prosecution. Now, even in injury cases, the event, if recorded at all, is just another statistic, with prosecution not always followed.

The other day I was reading in the local rag of a sports car that had left the road and smashed into a lamp post. There were no serious injuries to the occupants and no one else was involved. The police took no action against the driver. Why not, I ask? Answer, because it was too much bother, yet the degree of carelessness, which existed by definition, was exactly the same as if the driver had killed a cyclist and two pedestrians. all quite possible given the incident took place at the edge of a large housing estate and a popular dog walking area.

The police will complain of insufficient resources, the CPS of public interest and lack of evidence. Both are being deliberately misleading to say the least. The fact is, they have saddled themselves with the most incredibly complex and wasteful system of management (I use the term in it's loosest possible sense). Neither do they train the officers well. CPS are another matter altogether. Both organisations seem to have the same two operting rules. Rule 1) We are always right. Rule 2) When we are wrong, rule one applies.

Those here who seem to want to dispense with evidence and apportion blame according to wheel numbers are in practical terms seeking to dispense with justice altogether. What they want will, if achieved, hasten progress towards the police state we are already, in many ways, living in.
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Re: 'Strict Liability' laws

Postby pete75 » 17 Oct 2012, 3:23pm

Shootist wrote: Section 3 of the Road Traffic Act also contains the offence of inconsideate driving. Now, inconsiderate driving requires a state of mind, a presence if you will, of an intention, which seems to be the far more serious behaviour, but hardly anyone is prosecuted for such an offence.



Deliberately driving through a large puddle next to a bus queue perhaps. It's not careless or dangerous but certainly inconsiderate.

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Re: 'Strict Liability' laws

Postby Shootist » 17 Oct 2012, 4:15pm

pete75 wrote:
Shootist wrote: Section 3 of the Road Traffic Act also contains the offence of inconsideate driving. Now, inconsiderate driving requires a state of mind, a presence if you will, of an intention, which seems to be the far more serious behaviour, but hardly anyone is prosecuted for such an offence.



Deliberately driving through a large puddle next to a bus queue perhaps. It's not careless or dangerous but certainly inconsiderate.


That is the sort of thing that inconsiderate driving has generally been reserved for. But the sentencing powers are exactly the same as for careless driving. Why isn't driving too close to a cyclist on a road inconsiderate rather than careless? Or cutting someone up? Or so many other things that cyclists suffer?
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CJ
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Re: 'Strict Liability' laws

Postby CJ » 17 Oct 2012, 4:47pm

Shootist wrote:The other day I was reading in the local rag of a sports car that had left the road and smashed into a lamp post. There were no serious injuries to the occupants and no one else was involved. The police took no action against the driver. Why not, I ask?

The other year I read of a van that had smashed into the back of two cyclists, killing one and very badly injuring the other. The CPS took no action against the driver. Why not I ask.

Is not the fact of allowing your vehicle to run into the back of another vehicle lawfully on the road in front of you proof enough of carelessness? Is it not just as good proof as the fact of leaving the road and hitting a lamp-post?


Those here who seem to want to dispense with evidence and apportion blame according to wheel numbers are in practical terms seeking to dispense with justice altogether. What they want will, if achieved, hasten progress towards the police state we are already, in many ways, living in.


Now we're back on topic I think, which is civil liability, like if was using my electric hedge-trimmer and someone walks by too close, lacerating their arm on the end of it. I do not know, but I'm pretty sure that anyone using a hedge-trimmer is supposed to keep it well away from other people and stop it before it can hurt anyone. If I wanted to say it was the injured parties fault I think I'd have to prove that they deliberately threw themselves onto the blade.

That's what we want on the roads, that anyone using a motor vehicle stops it before it can hit an unprotected human being, and that all the injured party has to prove to claim on the vehicle's insurance is that they were injured by that vehicle. And if the insurer believes the collision to have been unavoidable due to a deliberately negligent act by the injured party, they should have the burden of proving that.
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Re: 'Strict Liability' laws

Postby pete75 » 17 Oct 2012, 9:30pm

Shootist wrote:
pete75 wrote:
Shootist wrote: Section 3 of the Road Traffic Act also contains the offence of inconsideate driving. Now, inconsiderate driving requires a state of mind, a presence if you will, of an intention, which seems to be the far more serious behaviour, but hardly anyone is prosecuted for such an offence.



Deliberately driving through a large puddle next to a bus queue perhaps. It's not careless or dangerous but certainly inconsiderate.


That is the sort of thing that inconsiderate driving has generally been reserved for. But the sentencing powers are exactly the same as for careless driving. Why isn't driving too close to a cyclist on a road inconsiderate rather than careless? Or cutting someone up? Or so many other things that cyclists suffer?


I've a slightly different take on inconsiderate compared to careless/dangerous driving. My understanding is that careless or dangerous is intentional or unintentional driving that causes danger to another road user or vehicle. A crude example would be that a driver pulling out of a side turning in front of a cyclist and fails to see him or misjudges his speed is guilty of careless and one who pulls out knowing he will hit the cyclist is guilty of driving dangerously. Not that anyone would admit the latter.
Inconsiderate driving, as in my puddle example, is something that causes inconvenience or unpleasantness to others but doesn't endanger them. As such I think it's probably a lesser offence than careless.
Perhaps inconsiderate should be made a fixed penalty, civil offence like parking. A cyclist or whoever gives a plausible report to the Peelers and a no points, 50 quid fine ticket is sent to registered owner on a pay up or go to appeal basis. I'm sure the word would soon get around, overtake within a few inches of a cyclist and it's a ticket.
From my experience of human nature I'm fairly certain that if a person made a false claim of inconsiderate driving they wouldn't turn up to give evidence at an appeal and the ticket torn up.

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Re: 'Strict Liability' laws

Postby pete75 » 17 Oct 2012, 9:42pm

CJ wrote:
That's what we want on the roads, that anyone using a motor vehicle stops it before it can hit an unprotected human being, and that all the injured party has to prove to claim on the vehicle's insurance is that they were injured by that vehicle. And if the insurer believes the collision to have been unavoidable due to a deliberately negligent act by the injured party, they should have the burden of proving that.


In my experience politicians and the powers that be like to insert thin ends of wedges. Civil and criminal codes are both based on common law which is based on precedent and presume innocence or lack of blame until proven otherwise.
If this precedent was broken and reversed in one branch of law it's a racing certainty that politicians would use this to make similar changes whenever and wherever it suited them.

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Re: 'Strict Liability' laws

Postby snibgo » 17 Oct 2012, 10:04pm

pete75 wrote:Inconsiderate driving, as in my puddle example, is something that causes inconvenience or unpleasantness to others but doesn't endanger them. As such I think it's probably a lesser offence than careless.

It's the same offence. It can only be "inconsiderate" is someone has been inconvenienced, but "careless" doesn't need anyone else to be around. Not does the separate offense of "dangerous". A driver might be guilty of "dangerous driving" even when nobody is actually endangered.

However, I suspect the CPS only charge "dangerous" when, as you say, there is apparent intent to injure.