Strict liability - please sign petition

chiefsub68
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Strict liability - please sign petition

Postby chiefsub68 » 15 Sep 2007, 1:24pm

Hi

I've been campaigning for nearly 20 years, and I think strict liability on motorists' insurance policies will be an important factor in changing driver attitudes and general road user behaviour.

CTC has this on back burner at the moment, but I have a petition at the No 10 website to try to bring the matter forward. Please sign ... it's at http://petitions.pm.gov.uk/roadsafety9

Regards

Will (www.colchester-cycling.org.uk)

Your petition reads:

We the undersigned petition the Prime Minister to improve road
safety by introducing strict liability for motorists in
collisions

Youngsters are being asked to walk or cycle to school to be
green and reduce jams.

Walking and cycling are generally safe but parents will worry -
if they are brave enough to let youngsters be independent.

The perception of safety has to be improved.

Lower speeds and extra road education will play a part but this
petition is calling for a change to strict liability laws on
drivers’ insurance policies.

At present, in a car - bike/pedestrian collision, the cyclist
or pedestrian (probably the worst injured) has to prove the
motorist was reckless.

We want that burden of proof switched so the motorist –
choosing to use a ton of metal at speed – has to prove the
cyclist or pedestrian was at fault.

This only applies to insurance claims. In criminal law, drivers
in collisions remain innocent until proven guilty.

This rule exists in many EU countries with more walking and
cycling, and a better child road safety record, Let’s raise
driving standards and create better road user attitudes.

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meic
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Postby meic » 15 Sep 2007, 10:45pm

I am a bit confused about how it would be used in a civil case as the judge will weigh each case individually and decide what he deems to have happened.
I thought but do not know for sure that the law in civilised European countries was that it was the criminal law that laid the responsibility on the car driver to take care about causing harm with there dangerous toys. In which case after an accident they would have to prove they had done all possible to prevent it.
I signed it anyway but dont really think it is asking for the right thing. However the European situation will not be accepted easily in a country were cars are a form of deity.

PW
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Postby PW » 15 Sep 2007, 11:16pm

Signed it yesterday.
If at first you don't succeed - cheat!!

chiefsub68
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Postby chiefsub68 » 16 Sep 2007, 10:08am

In reply to Meic: if, in every case, a judge weighed up who was right and who was wrong, there would be no problem.

However, the vast majority of cases do not reach court and, more often than is fair or just, the motorist is assumed not to be at fault.

Strict liability is a presumption of liability BEFORE the case reaches a court of any sort - civil or criminal.

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?

GeoffL
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Postby GeoffL » 16 Sep 2007, 11:04am

I'm at a loss to understand why meic would sign a petition with which he appears not to agree and wonder how many other cyclists will be duped into agreeing with the hype.

Right now, we have enough ways for scammers to defraud the innocent using the compensation culture. I know of cases where the plaintiff has deliberately put themselves into a situation that might cause injury and then feign injury (usually something hard to disprove, like whiplash) or mental trauma to dishonestly obtain compensation. The "slam on" scam only works because of the tacit presumption of liability of any driver who runs into the rear of another vehicle. I believe that a presumption of liability will open the floodgates to further such fraud in our current, US-style, "do not delay, sue today" culture and until that culture changes presumed liability would be so open to misuse by fraudsters as to be more trouble than it's worth.

Should the proposal be adopted, I wonder how long before a pedestrian staged an incident to sue a cyclist, who under these proposals would be presumed liable, and how soon after that would compulsory 3rd-party insurance, possibly bicycle registration, and even tax discs (just so you can prove you have insurance) be foisted upon us.

As you might gather, I won't be signing.

Geoff

chiefsub68
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Postby chiefsub68 » 16 Sep 2007, 2:18pm

I'm advocating following European culture, not the "sue everything that moves" American version. Strict liability is far more than hype, as experience on the Continent shows: it is part of the "toolbox" which has led to more considerate driver behaviour and lower casualty figures.

Any insurance scheme is open to abuse - from someone dreaming up spills on the lounge carpet, to staging a rear-end shunt in the car. Following Geoff's argument to its logical conclusion, insurance wouldn't exist just in case someone ever attempted a scam.

Besides which, for each single fraudulent claim there are many thousands of honest claims, where people's policies are used for what they're intended - paying out compensation for a genuine incident. At the moment, cyclists and peds suffer because the cards are stacked firmly against them.

How many cyclists/peds are going to court now to fraudulently claim against drivers' insurances? You would have to be pretty determined to do that. I don't believe a change strict liability would increase the number of cases. You would still have to go to court - insurance companies aren't going to pay up if they have the faintest suspicion someone is trying it on!

Chiefsub

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Postby ncutler » 16 Sep 2007, 3:52pm

chiefsub68 wrote:I'm advocating following European culture, not the "sue everything that moves" American version. Strict liability is far more than hype, as experience on the Continent shows: it is part of the "toolbox" which has led to more considerate driver behaviour and lower casualty figures.


I have spent many happy days cycling cycling around Amsterdam & the Netherlands, and been vaguely aware of local opinions about motor vehicle liability and its effect on traffic behaviour, but I realise that I don't really know anything about the underlying law or practice.

Could you tell us something about the European experience ?

Nick

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Postby GeoffL » 16 Sep 2007, 6:16pm

chiefsub68 wrote:I'm advocating following European culture, not the "sue everything that moves" American version.

Unfortunately, the latter is what we have - even more so since the "no win no fee" legislation that allows anyone to "have a go" almost on a whim. This has spawned organised crime intent on using this legislation to defraud - and it's now big business. The proposed presumed liability legislation will make it even easier for the fraudsters.

Additionally, the measures you propose presume guilt until proven innocent, which goes against the most basic tenet of a fair legal system - the tenet that a person is presumed innocent unless proved guilty.

Geoff

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Postby 2Tubs » 16 Sep 2007, 9:14pm

Just signed it.

And speaking as a motorist as well as a cyclist, I fully support it.

Gazza
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hubgearfreak
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Postby hubgearfreak » 16 Sep 2007, 9:31pm

2Tubs wrote:Just signed it.

And speaking as a motorist as well as a cyclist, I fully support it.


+1 :D

chiefsub68
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More on strict liability

Postby chiefsub68 » 16 Sep 2007, 11:03pm

Many thanks to people for signing this, and I should make clear that I am a driver, too, with my Ford Mondeo covering roughly 4,000 miles a year.

What I know about strict liability has been picked up over 15 years, since getting an explanation from the Dutch equivalent of our Pedestrians Assn (now Living Streets). I have tried to find out more about it in practice - and exactly how many EU countries in which it is in force - but language has got in the way.

What I hope to do is to get the UK government to look at the issue, consider the pros and cons, and involve the public in a debate. It is far better placed than I am to get the necessary detail. When this was last considered, ten to 12 years ago, possibly under John Major, the Mail and Telegraph killed it with headlines like "£20 on car insurance - just because of cyclists", together with the usual "hard-hit drivers" banter.

From the information that I have, however, I am convinced it is an essential part of changing from a car culture to a culture in which vulnerable users are given more consideration.

I angled the petition on schoolchildren as, with the recent increase in child deaths, and a new crop of 11-year-olds going to senior school, I feel it is important. There's something not quite right about a Government that tries to get children to walk and ride to school (to reduce obesity and car jams) but which does precious little to increase their safety, perceived and actual. I am also concerned that although our casualties are already high, they could rise if more children suddenly came out on the roads (with typical spiderweb school catchments) without greater protection, even taking into account the "safety in numbers" lessons.

Geoff L raises the concern that strict liability could lead to cyclists being bound to have insurance (in case of a collision with a pedestrian) or possibly a bike registration scheme. I believe that the natural line is drawn between those who have the right to the road (peds, bikes, horses) and those who are there by licence (motorists), if only for the fact that the KSI figure for collisions involving cars is 2,000 times that for bike/ped collisions - some perspective! Also, bear in mind, the usual comparison between bike registration and the 37p dog licence still stands - administration and enforcement costs easily outstrip the money brought in.

Regards

Chiefsub

PS: Geoff L, I don't mean to be rude, so don't take this personally: please read what I'm writing. We are talking about civil, not criminal law. Civil law is about liability, not guilt, so "innocent until proven guilty" does not apply. The wording of the petition makes this clear. All I am seeking is a reversal of the current situation to restore the balance between drivers and cyclists/peds (often making much the same sub 2-mile trip for much the same reasons), one of whom can do a lot more damage due to carelessness, inattention or lack of manners.

Secondly, scamsters will try to take advantage of anything they can get away with, in every area of life. If "will someone attempt a fraud?" were the only test of every new scheme, then all new schemes would fail. The possibility of abuse needs to be considered, of course, but should be weighed against the likely benefits; as I said in my previous mail, I do not believe strict liability will lead to more fraudulent claims. We would have to look at evidence from Europe to see what happens there, but let's get the Government to open the debate first.

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Re: More on strict liability

Postby GeoffL » 17 Sep 2007, 9:28am

chiefsub68 wrote:Geoff L raises the concern that strict liability could lead to cyclists being bound to have insurance (in case of a collision with a pedestrian) or possibly a bike registration scheme. I believe that the natural line is drawn between those who have the right to the road (peds, bikes, horses) and those who are there by licence (motorists), if only for the fact that the KSI figure for collisions involving cars is 2,000 times that for bike/ped collisions - some perspective! Also, bear in mind, the usual comparison between bike registration and the 37p dog licence still stands - administration and enforcement costs easily outstrip the money brought in.

I've heard the argument, "those who use the roads by right rather than license" argument so many times. Yet we only use the roads by permission and that permission is easily taken away. Right now, the authorities can remove that permission WRT their area for any cyclist merely by the imposition of an ASBO. In the future, it would only take one piece of legislation to extend insurance and registration requirements to all classes of vehicles - including bicycles.

chiefsub68 wrote:PS: Geoff L, I don't mean to be rude, so don't take this personally:

I don't think you're at all rude, IMO you've politely presented your argument to support your opinion, to which you're entitled. I thought you were extending me the same courtesy!

chiefsub68 wrote: please read what I'm writing. We are talking about civil, not criminal law. Civil law is about liability, not guilt, so "innocent until proven guilty" does not apply.

A penalty is a penalty and being presumed liable without proof of guilt imposes such a penalty and so contravenes the spirit of article 6 of the ECHR. Consider someone who has built up considerable no-claims discount with more than a decade's accident-free driving. Should that person be unfortunate enough to be on the receiving end of a numpty cyclist doing something silly with no independent witnesses, the penalty to that innocent driver could amount to thousands of pounds in additional insurance premiums. If that were to happen to me (as a motorist), I would have to pay nearly a thousand pounds extra at renewal time (my current premium is just under £400) and each year for several years I'd have to pay extra until my NCD had been restored. Not only that, but because I'm a named driver on my wife's insurance, her premiums would go up because of the additional deemed risk I would present. IOW, the civil penalties are well in excess of the criminal penalties and so the safeguards against unjust penalisation should be at least as exacting IMO.

chiefsub68 wrote:The wording of the petition makes this clear. All I am seeking is a reversal of the current situation to restore the balance between drivers and cyclists/peds (often making much the same sub 2-mile trip for much the same reasons), one of whom can do a lot more damage due to carelessness, inattention or lack of manners.

Right now, there is a lot of anti-cyclist feeling in many motorists and, like it or not, the "cycle-nazi" stereotype exists. I'm convinced the reason for this is "kick-back" against those who claim to be pro cycling but in reality are just anti-motorist and use the slightest excuse (often with no justification) to have yet another pop at their target. I'm not saying that's you, merely that should your proposal become law it would add fuel to the anti-cyclist feelings.

So how would your proposal "restore the balance between drivers and cyclists"? Right now, things are pretty equal in the eyes of the law and what you really seem to want is to skew the balance to put motorists at considerable disadvantage (not to mention the additional costs your proposals would inevitably cause). There are already an estimated two million uninsured drivers in this country, and many of those are uninsured because they cannot afford the already high costs. Ironically, your proposal could just tip the balance for thousands of others - i.e. it could increase the number of uninsured drivers. Also, it could increase the number of "hit and run" incidents. While most will take it on the chin if they are to blame, I suspect considerably fewer would hang around and take the blame for something they didn't do!

chiefsub68 wrote:Secondly, scamsters will try to take advantage of anything they can get away with, in every area of life. If "will someone attempt a fraud?" were the only test of every new scheme, then all new schemes would fail. The possibility of abuse needs to be considered, of course, but should be weighed against the likely benefits; as I said in my previous mail, I do not believe strict liability will lead to more fraudulent claims. We would have to look at evidence from Europe to see what happens there, but let's get the Government to open the debate first.

We must agree to disagree on the possible increase in fraudulent claims. However, the evidence supports my opinion in that it was the presumption of guilt in rear-ending cases together with "no win, no fee" that created the "slam-on" scam, and "no win, no fee" that's given rise to (I'm convinced) millions of fraudulent claims for compensation from employers. I'm not at liberty to disclose the employer, but I know for a fact that 5% of the workforce have made such claims and the employer's insurers have paid out because it's too expensive to fight. That employer is a charity who now face considerably inflated insurance premiums and have had to scale down their work and make other staff redundant as a direct result. This is the sort of thing that happens when you skew the balance in the way you propose.

Now cyclists and peds already have "no win, no fee", which allows them to take a speculative pop for compensation, and "do not delay, sue today" encourages them to do just that. If a presumption of liability is added to the mix it will be an open invitation for fraud on a massive scale. This is entirely predictable and IMO safeguards need to be put in place. Adequate anti-fraud safeguards could leave the cyclist or ped in a worse position than at present.

For me, the only way that your proposal would be acceptable would be if there were sufficient deterrent to dissuade fraud. For example, a mandatory custodial sentence for those convicted of such fraud together with a fine at least the equal of the compensation fraudulently sought. However, it would be better if there were a system in place that compensated genuine victims of traffic accidents without penalising either party. Only then would there be no presumption of guilt and the separation of the civil and criminal aspects that you claim exists but which pragmatically does not. Until we can get that true separation of civil and criminal aspects, anything along the lines you propose has to be unjust and unfair.

Geoff

chiefsub68
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Agree to disagree!

Postby chiefsub68 » 17 Sep 2007, 11:48am

I can see flaws in Geoff's argument and he can obviously see flaws in mine. We will have to agree to disagree to avoid boring other readers of this thread. Geoff's notes have, however, given the likely view of the typical motorist.

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Postby 2Tubs » 17 Sep 2007, 1:10pm

I have taken the liberty of posting this petition on West Midlands Cycling group forum that I belong too.

Hopefully you'll see some interest from there as they're all a bunch of car hating, Guardian reading, tree hugging, cycling eco warriors.

Bloomin' hippies!

>;o)

Gazza
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Postby 2Tubs » 17 Sep 2007, 1:17pm

GeoffL wrote:
chiefsub68 wrote:Additionally, the measures you propose presume guilt until proven innocent, which goes against the most basic tenet of a fair legal system - the tenet that a person is presumed innocent unless proved guilty.


Where as at the moment, it is the cyclist/pedestrian who is presumed to be guilty.

What's the difference?

I say we should always give the benefit of doubt to the vulnerable. So in the case of a cyclist and a pedestrian coliding, the cyclist should assume responsibility. After all, surely he should have been cycling in a responsible manner at speeds that would enable the easy avoidance of the accident in the first place.

And I think it's an idiot fraudster who'd throw themselves under the wheel of a Land Rover so that he could call 0800 CLAIMNOW. Not sure that'd be as big a problem as people believe it to be. And what the heck, that'd be one less idiot in the world.

Gazza
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