Thu 10 Feb 2011
As I have said before on this blog, I am in favour of the UK having a law of strict liability on the roads, so thought I should try and do something about it. This being a legal issue, I thought the best way forward would be to try lobbying my elected representative, who could in turn could lobbying the Government to change the law. Therefore I wrote the following letter and sent it by e-mail to Sheila Gilmore MP.
Dear Sheila Gilmore,
Could I please ask you to consider the fairness of this case?
When a car driver injures a pedestrian, the burden of proof is on the pedestrian for claiming compensation. It appears, our legal system does not favour the more vulnerable.
Car colliding with pedestrian or cyclist:
Hundreds of pedestrians and scores of cyclists get injured or killed by car drivers every year. The 2008 road casualty figures show that 332 pedestrians were killed in car/pedestrian collisions, and in car/cyclist collisions 52 cyclists were killed. In all 390 cases not one car driver was killed. Amongst pedestrians, cyclists and car drivers, it is clear that the car driver is the most likely party to inflict injury or death upon the others.
Cyclist colliding with pedestrian:
The 2008 road accident statistics by the Department for Transport show that one pedestrian was killed in a cyclist/pedestrian collision. It is clear when comparing pedestrians and cyclists, that the cyclist would be seen as the stronger party.
I find it very hard to understand that the burden of proof would be on the more vulnerable road user and not the one who is actually more likely to cause harm: inflicting pain and suffering through causing injury, or devastating families by causing death. All this does not seem fair to me.
If you think so too, could I please ask you to get in touch with the Minister for Transport, the Minister for Road Safety and your party colleagues on the Transport Select Committee. It would be much appreciated if you could highlight to them, that we should subscribe to a more civilised system that is favouring the vulnerable.
Liability should therefore be considered on a fair and proportionate basis to provide legal protection to the vulnerable road user. This could be achieved by establishing a hierarchy of care where the burden of proof would always be on the user of the heavier vehicle (the party more likely to cause injury or death). This would show commitment of this Government to its agenda of societal and social fairness.
This principle of proportionality described above is in place in all but five European countries. The UK being one of them; the other four are Ireland, Romania, Cyprus and Malta.
Looking forward to hearing from you.
Yours sincerely, etc.
Some weeks later I received the following reply:
Thank you for your email concerning the burden of proof in road traffic personal injury cases. I apologise for the delay in responding to your enquiry.
It is important to clarify from the outset that justice is devolved to the Scottish Parliament. I would strongly recommend also writing to your MSP who will be able to provide you with more information about the situation in Scotland.
However I can make some brief comments on the current situation in England and Wales.
It is a general principle of the law that the accuser has to prove that the incident in question occurred and that the accused behaved negligently. Thus you are correct to say that in road traffic personal injury cases in England and Wales, the burden of proof is on the victim to prove the other party was negligent.
There are however areas of the law that apply the standard of strict liability, whereby the burden of proof is reversed and the accused has to prove that the accuser behaved negligently. Strict liability applies where there is likely to be an imbalance in terms of responsibility and where there is an inherent danger.
Strict liability does not currently apply to road traffic personal injury cases. I am aware that some have argued that the law should be changed so that it does, as this might encourage drivers to be more aware of cyclists, injuries incurred by cyclists would drop, and more people would take up cycling as a result.
However I am also aware of counter-arguments that suggest such a change could have a negative impact on cycling. These stem from the fact that cyclists would be liable in collisions with pedestrians. As few cyclists have insurance, it is unlikely that awards to pedestrians would ever be met. The only way to ensure the law works effectively would be to compel cyclists to purchase insurance, which could in turn put people off cycling.
I am a keen cyclist myself and do not own a car. I am a member of the All Party Parliamentary Group for Cycling, and I wish to see cycling encouraged across the UK. It could be that the introduction of strict liability to protect certain classes of road user would assist in improving safety. I think this is a subject that would be worthy of detailed consideration. To this end I have forwarded your correspondence to the Chair of the Transport Select Committee. I will inform you when I receive a response.
You may wish to note that last April the previous Government introduced a new accelerated claims process for road traffic accidents for personal injury claims in England Wales. Although this did not change the law with respect to burden of proof, it did attempt to deliver fair compensation to the claimant as soon as possible at proportionate cost.
Sheila Gilmore MP
I find the counter-argument that a law of strict liability would deter cycling somewhat disingenuous, surely if you do harm to another you should be liable for any harm done. Besides, I like many others, do have 3rd party liability insurance as part of my household insurance.
So what lessons have I learned from this? Well first and foremost, before writing letters find out which parliament has jurisdiction over the area of law which you are trying to change. Also that if your elected representative is on your side, they will reply. Even if the “elected representative” is not on your side, it is worth reminding them that they work for you and not their parties corporate sponsors, although some of them have a habit of forgetting this. This is a habit which needs to be broken!
So I urge you to do the same, contact your elected representative and remind them that they work for you. If you would like to the use the letter I have laid out above as a template, please feel free to do so, but I would suggest adding in the precedents given in the addendum below. In the mean time I have to find out what is the current state of play with “strict liability” is in Scotland and lobby my elected representatives at Holyrood.
Addendum: since writing the above, it has come to my attention that the concept of strict liability is not entirely foreign to UK legal jurisdictions. It is already used, for example, to provide compensation for injuries to consumers from defective products, to employees from defective work equipment and to the general public from runaway animals. This precedent strengths the arguments given above.