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Re: 'Strict Liability' laws
Posted: 17 Oct 2012, 10:44pm
by pete75
snibgo wrote: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.
I don't know. Is something dangerous if it doesn't endanger anyone. It must depend on the circumstances at the time. For example driving along a 5 mile straight fen road at 60 mph on the wrong side isn't dangerous when the driver can see there's no other vehicle for a mile or so yet when he can see something coming the other way and close to him it is.
I suspect the CPS only charge dangerous or careless when there is an injury or accident because that's the only reason they're made aware of such driving.
Re: 'Strict Liability' laws
Posted: 17 Oct 2012, 11:37pm
by snibgo
Well, to my mind, that's the problem with the current legal definition of "dangerous driving". It is largely divorced from the real-world action of actually endangering people, let alone injuring or killing them.
True,
RTA 1988 s2a includes causing injury. But the driver has two defenses. First, he can claim that it wasn't "obvious to a competent and careful driver that driving in that way would be dangerous". And if that claim fails, he can claim that his driving didn't fall "
far below what would be expected of a competent and careful driver".
This sets the bar for prosecution very high.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 7:46am
by Vorpal
pete75 wrote: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.
But there are areas of the law where the burden of proof is already on the party with the greatest responsibility.
There are numerous examples:
Employer liability
Building sites / works
pedestrians on a crossing
shunt accidents
Employer liability is probably the clearest example. If someone is injured through the course of their normal work, the employers insurance pays for treatment, independently of who is considered to be at fault. Fault, corrective actions, or prosecutions, when appropriate are all handled separate from the liability. But the burden of proof is on the employer.
In a shunt accident, the person whose vehicle hits the rear of another vehicle is normally liable, not only for damage to the vehicle in front, but also for any subsequent shunt accidents that result. The burden of proof is on the first driver whose vehicle hits the one in front. There is an assumption in liability that drivers have the responsibility to avoid hitting the vehicle in front. Unless there an injury, or a multiple vehicle accident, however, prosecution is unlikely.
This has nothing to do with guilt or innocence.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 9:30am
by Shootist
Vorpal wrote:But there are areas of the law where the burden of proof is already on the party with the greatest responsibility.
In a shunt accident, the person whose vehicle hits the rear of another vehicle is normally liable, not only for damage to the vehicle in front, but also for any subsequent shunt accidents that result. The burden of proof is on the first driver whose vehicle hits the one in front. There is an assumption in liability that drivers have the responsibility to avoid hitting the vehicle in front. Unless there an injury, or a multiple vehicle accident, however, prosecution is unlikely.
This has nothing to do with guilt or innocence.
This is not a matter of law, for there is no law (that i am aware of) that specifies what you say here. The liability derives from the rather obvious fact that someone driving with care will not collide with a stationary object that they are driving towards. The driver who does so collide would be a walk through for a Due Care prosecution should the police ever start bothering themselves with such things again. If a cyclist was to ride into the back of a stationary car, or even perhaps a pedestrian standing in the road admiring the view then they would be an easy prosecution for riding a pedal cycle without due care and attention. All of these things are the very essence of guilt or innocence.
(Here's a case where a cyclist appears to have been granted the same leeway as a motorist. He should have been convicted IMO.
http://www.thisisstaffordshire.co.uk/Cyclist-cleared-path-crash-blame/story-12484470-detail/story.html )
As regards liability on Zebra crossings, that is a matter of criminal law, confirmed by case law. If you are convicted of careless driving then a win in a civil case is more or less assured as the burden of proof is less. When the law says motorists will accord precedence to pedestrians on a crossing it is worded as an absolute. So, in a case where a heavy goods vehicle collided with a pedestrian who ran onto a crossing in a manner that meant the lorry driver would have had to change the laws of physics to avoid a collision, the driver was still found guilty of failing to accord precedence. Much sympathy was expressed by the court to the driver as it was acknowledged that it would have been impossible for him to avoid the collision, or to anticipate the actions of the deceased, but he remained convicted.
I'm no expert on employment law, but the fact that employers are obliged to have employers liability insurance doesn't automatically make that insurance pay for employees injuries regardless of fault. The employer has, I believe, to be shown liable for the injury. Example, removing a safety guard from machinery. It is not independent of fault. Same as the requirement for car insurance. Having your car insured is no indication that you are liabile for anything that happens while you are driving it.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 9:38am
by Shootist
pete75 wrote:I don't know. Is something dangerous if it doesn't endanger anyone. It must depend on the circumstances at the time. For example driving along a 5 mile straight fen road at 60 mph on the wrong side isn't dangerous when the driver can see there's no other vehicle for a mile or so yet when he can see something coming the other way and close to him it is.
As nothing more than a matter of interest, there is no law in this country that specifies you must drive on the left hand side of the road.
I suspect the CPS only charge dangerous or careless when there is an injury or accident because that's the only reason they're made aware of such driving.
This is the case only because of the policy not to prosecute non injury 'accidents' except in exceptional circumstances so CPS will not be informed of such things. OTOH, if the police chase (sorry, 'follow'. They don't chase any more) a muppet in a car and he drives badly he will be charged with that offence even if nobody is injured.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 10:53am
by snibgo
As nothing more than a matter of interest, there is no law in this country that specifies you must drive on the left hand side of the road.
Yes there is, when there is other traffic.
Highway Act 1835, s78.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 10:58am
by [XAP]Bob
snibgo wrote:As nothing more than a matter of interest, there is no law in this country that specifies you must drive on the left hand side of the road.
Yes there is, when there is other traffic.
Highway Act 1835, s78.
Beautiful wording - but a wrapper function around the definition of carriage would have helped
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 11:04am
by Shootist
snibgo wrote:As nothing more than a matter of interest, there is no law in this country that specifies you must drive on the left hand side of the road.
Yes there is, when there is other traffic.
Highway Act 1835, s78.
I stand corrected. Interesting then that police motorcyclists in particular are trained, and will use, the whole width of the road in order to increase observational distance, including, if safe to do so, the opposing lane.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 12:17pm
by Mark1978
Shootist wrote:I stand corrected. Interesting then that police motorcyclists in particular are trained, and will use, the whole width of the road in order to increase observational distance, including, if safe to do so, the opposing lane.
'Offsiding'. I thought they didn't do that any more.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 1:48pm
by CJ
I agree with the removal of that same leeway in cyclist-pedestrian collisions. In other words: the cyclist should have to prove intent or gross negligence on the part of the pedestrian victim in order to avoid liability.
Apropos this case, jumping over puddles is normal for 4-year-olds. The cyclist should have taken appropriate precautions. I bet he didn't ring his bell on approach - or even have one. Like you I am surprised that he was not convicted simply on his own account of what happened.
The mother's version is weird though. Why would you pass right of one person walking to the left of an 8-foot wide path, then swing sharply in front of them and mount the verge in order to pass on the
other side a child also walking on the left - especially when about to turn right? It makes no sense. Perhaps the cyclist got off because the mother discredited her entire evidence with an unbelievably exaggerated account of what happend. The chairman of the bench said it was one person's word against another, so if one person's word didn't seem to make sense...
I think this is probably an example where the duty of care principle would have delivered better justice than the adversarial principle. Sauce for the goose is sauce for the gander and I would also want car drivers to give a much wider berth to 4-year-olds in case they jump sideways over puddles and take the blame if they don't - regardless of what nonsense distraught parents thought they saw.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 3:13pm
by pete75
CJ wrote:I think this is probably an example where the duty of care principle would have delivered better justice than the adversarial principle. Sauce for the goose is sauce for the gander and I would also want car drivers to give a much wider berth to 4-year-olds in case they jump sideways over puddles and take the blame if they don't - regardless of what nonsense distraught parents thought they saw.
I thought strict or presumed liability would only be meant to apply in civil cases not in criminal court trials like this one.
If someone,regardless of age, decides to jump sideways in front of a moving bicycle or vehicle without warning then I don't see how the driver/rider can be to blame if they are proceeding in a sensible and lawful manner.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 3:22pm
by kwackers
pete75 wrote:I thought strict or presumed liability would only be meant to apply in civil cases not in criminal court trials like this one.
If someone,regardless of age, decides to jump sideways in front of a moving bicycle or vehicle without warning then I don't see how the driver/rider can be to blame if they are proceeding in a sensible and lawful manner.
Easily.
You're approaching a young child, how much room should you leave?
We expect motorists to leave enough room for us to deal with road imperfections, why shouldn't someone leave enough room to deal with the random behaviour of a child??
Seems to me whether you're a driver who hits a cyclist because they had to swerve two feet to the side or a cyclist who hits a child that jumps to the side you're both just as guilty of not applying due care.
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 3:29pm
by Si
CJ wrote:I agree with the removal of that same leeway in cyclist-pedestrian collisions.
Also means a lot more members for the CTC with its third party insurance
Re: 'Strict Liability' laws
Posted: 18 Oct 2012, 3:42pm
by Guy951
Si wrote:Also means a lot more members for the CTC with its third party insurance
Or British Cycling
Re: 'Strict Liability' laws
Posted: 19 Oct 2012, 8:44am
by Regulator
How was he treated leniently? The fact that he was prosecuted for causing cuts and bruises means that he's been treated much more harshly than most motorists would be treated. A motorist is highly unlikely to even be prosecuted unless there were very serious injuries or a fatality.
As it was, the magistrates made it clear that the CPS had failed to meet the burden of proof. Are you suggesting that the bench all happened to be cyclists who were being lenient on another cyclist?