The real problems created with increasing liability for drivers?

The real problems created with increasing liability for drivers?

There has been a string of letters to the Herald newspaper on the subject of Strict Liability. These letters provide an interesting insight into social attitudes with regard to driving. It all started on 26th October, with a letter from Brenda Mitchell, founder of the Road Share campaign for stricter liability. It was written in response to the news that in 2012 there was a sharp rise in the numbers of vulnerable road users killed on Scotland’s roads (cyclist deaths increased by 22% and pedestrian deaths increased by 33%). She lays out how she sees strict liability working: “a motorist involved in a road traffic collision with a cyclist or pedestrian would be presumed liable in a civil law claim against them for damages. If the injured party is under 14, over 70 or disabled, then the driver would be deemed liable, with the opportunity open to them to establish part fault. The same would apply in cases where cyclists collide with pedestrians, thereby working to give the more vulnerable road users the protection they so desperately need but currently lack.”

The first reply to this letter comes on 28th October, from Norman Dryden, who suggests that “strict liability on the part of careless cyclists for pedestrians would be of little value”. His main argument is that “Strict liability of cyclists for pedestrians is of little real value unless backed by compulsory insurance and the display of visible, valid registration details“. I feel that this is a rather weak argument, as it is rare for pedestrians and cyclists to cause harm to other third parties, however the same is not true of motorists. Most of the countries in Europe have a Law of Strict Liability and yet none of them have require cyclists carry compulsory insurance, why should Scotland be different? From the comments below it is clear that Mr Dryden, does not agree with me, he is entitled to his opinions as am I to mine. As he points out below may people whether pedestrians or cyclists, will be covered by the occupiers and personal liability section of household contents insurance which covers all family members resident at the address for accidents they may cause as pedestrians or cyclists. Some may have other, more specific, insurance. This I feel rather undermines the argument of little value without compulsory insurance. I am not in any away attempting to defamatory and misrepresent anyone, I am meanly expressing my option and I have given a free right of reply.

[I have modified this post due to complaints from Mr Dryden who disliked my interpretation of his letter, see the comments below]

On 30th October there two letters, one from John Maxwell and the other from Iain Mann. Maxwell expresses the opinion that Dryden is right, there is no need for a change to the law, and that, if enacted, strict liability would “penalise the law abiding majority”. He then claims that strict liability would “stand on its head the age-old principle that a person is innocent until proven guilty”. Clearly he fails to understand the difference between liability and culpability. Strict liability only applies in civil cases where the ‘innocent until proven guilty’ principle does not typically apply. In fact, strict liability already operates in many aspects of civil law, such as workplace regulations, consumer protection legislation and the control of dangerous animals. So introducing strict liability on the roads would not deny anyone their human rights, as Mr Maxwell suggests. Mr Mann also conflates liability and culpability. He then has a rant, blaming cyclists for causing accidents by being on the road, before suggesting that roads are solely there for the use of motor vehicles, and that cyclists should be made to use the footway along with pedestrians.

1st November brings a letter from Mrs Patricia Rowan entitled “Small children cycling represent a real hazard”. In this letter she suggests that children should not be allowed to use the roads, as they pose a “real hazard” to motorists. Evidently she thinks that no child should travel without being strapped into the back of a car. It is this attitude that has led to Scotland’s children having the one of the worst road death rates (per Km walked) and highest obesity rates in Europe and the return of rickets. Clearly she feels the roads are only for cars and that adults have no duty of care towards children.

The following day there was a second letter by Brenda Mitchell, where she corrects the false assertions of Maxwell and Mann above. She points out that all “who drive with due care and attention and in accordance with the Highway Code” have “nothing to fear from a stricter or presumed liability regime”. Brenda then states that “by slowly chipping away at [the] misconception” she is “confident that the public will understand the merit of [introducing] stricter liability into Scots civil law to protect vulnerable road users.” I am sure that she is right about this. However, the next letter, on the same page, suggests there is much chipping away still to do. I feel the need to quote this letter, by J Napier, in full:

The blinkered and frankly, selfish, views of the cycling lobby never cease to amaze me. Campaigners are once again calling for more money – that will be taxpayers money of course – to be spent on their hobby, on the grounds that it improves health and helps reduce greenhouse gas emissions from the transport sector.

Cycling on our roads today is akin to bungee-jumping and far more dangerous. Just look at the accidents and casualties which are reported daily in the media. I cannot understand why schools, the Scottish Government and other agencies which ought to know better continue to encourage and support this most dangerous and unnecessary mode of transport, given the congested and totally inadequate state of our roads. Many safety experts argue that mixing traffic of very different sizes and speeds is a major cause of many accidents. Once our roads are fixed (and our cyclists are properly trained, licensed and insured), by all means encourage the sport. Until then recognise the dangers and advise accordingly.

The claimed reductions in greenhouse gas emissions is another misconception. How many litres of fuel and how many tons of greenhouse gas are produced daily by lines of vehicles having to slow down to a crawl – often for half a mile or more – before accelerating briskly to overtake a cyclist, only to find the manoeuvre has to be repeated a few yards further down the road? The only real winner seems to be the Treasury, which receives more tax from the unnecessary sale and consumption of extra fuel.

 

As a piece of satire this letter would be brilliant, sadly however, I get the feeling that Napier really believes that improving people’s health and reducing air pollution are a bad thing. Then there is the suggestion that anyone who travels be active means is only doing so as a hobby or sport, not as a legitimate means of transport to get to work or to go to the shops, and therefore, these people do not pay tax. Note that is “traffic of very different sizes and speeds” that is the cause of “accidents”, not people driving carelessly. Cycling (and for that matter, walking) is not inherently dangerous and for this reason there is no requirement to gain a licence or have compulsory third party insurance, whereas moving a vehicle weighing a ton or more in a public place is inherently dangerous, and it is for this reason there are laws in place to regulate the use of such vehicles. In the final paragraph we get to see clearly just what sort of driver he/she is, one who does not look ahead and plan their drive. Napier could learn a lot from this advice from a former driving instructor and advanced driver on how to overtake safely.

Today (4th November) there were another two letters, one from Roger Graham and the other from Bill Brown.

First we have Mr Graham tell us that he is a wonderful driver, as he managed to avoid hitting “a young cyclist”. Apparently this was because the cyclist was riding close to the kerb and fell off onto the pavement, but had the cyclist fallen the other way, then Graham would have hit him. For this reason Graham asserts that he should not be to blame if he ignores the advice given in the Highway Code on how much space is appropriate to give to other road users (see Rules 126, 162-167 & 212). We then get the “all cyclist jump red lights” canard, even though the evidence from police records and video studies shows that motorists are far more likely to jump red lights than cyclists, mainly as drivers of modern cars tend to feel invulnerable. Next we are told that roads are dangerous because they are for cars and not also for vulnerable road users, therefore cyclists should stay off the roads. Never mind that there is no right to drive, it is a privilege granted under licence. However, under Scots law we all have the right to walk, ride a bike or a horse as a means of transport. In Mr Brown’s letter, we are again told that it is the fault of the vulnerable road user for being on the roads, and that motorists have no duty of care to other people.

In my experience, motorists who think that cyclists are aggressive are invariably bad drivers, the thing most likely to cause vulnerable road users to react in an aggressive manner follows escaping from nearly being killed by the negligence of drivers who themselves are surrounded by a steel cage and who are often unaware that they have just nearly killed another person.

Herein lies the core of the problem, there are a significant minority of drivers who clearly believe their desire to drive where and how they please is more important than the safety of other people (whether the writers of the letters above, fall into this category I leave it to the reader to decide). For this reason strict liability is important for the protection of vulnerable road users, as these motorists are the people who will never accept that they are at fault for any harm they cause to others. Unfortunately, we can not simply expect those who are surrounded by a steel cage and feel invulnerable, to respect the safety of others. A simple look at the number of people seriously injured or killed on our roads tells us that. Repeated surveys carried out by motoring organisations and insurance companies have also shown that the majority of drivers admit to breaking the law, whether it be exceeding the speed limits or using mobile phones while driving, these are instances of everyday dangerous driving. Yet, despite this, most people think of themselves as being “above average” drivers. It is time that we ended the culture of over-casualised driving and remind everybody again that a driving licence is a privilege, not a right. Let’s be clear, strict liability is not a panacea to making our roads safer. To do that effectively, we will need to restructure the roads to suit the needs of all users, not just the motorised, we need to adopt a Sustainable Safety approach to achieve a better road safety. Even then we will still need strict liability to provide justice for the vulnerable in the event of something going wrong.
 

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9 thoughts on “The real problems created with increasing liability for drivers?

  1. You blog:-

    “His (Norman Dryden’s) main argument is that strict liability would be of little use, as cyclists don’t carry compulsory insurance. This is a rather spurious argument, thrown up with little thought about why motorists are required to have compulsory third party insurance and other road users are not.”

    No, it is not “a rather spurious argument, thrown up with little thought”. It is an argument formed by years of experience of liability claims with two major insurance companies, and decades of experience of the laws of negligence and legal liability. And there are good and valid reasons why compulsory insurance is a necessary corollary to strict liability.

    It does not matter how few or many accidents there are. If they involve death or serious injury, then strict liability is of little or no value to the victim or their family if the liable party has no resources. Such claims can run to hundreds of thousands of pounds for death or lifetime support.

    Many people, whether pedestrians or cyclists, will be covered by the occupiers and personal liability section of household contents insurance which covers all family members resident at the address for accidents they may cause as pedestrians or cyclists. Some may have other, more specific, insurance.

    However, in the individual case of accident, the victim will not be guaranteed compensation unless the individual at fault has massive personal resources or is covered by insurance. That is self-evident. That compulsory insurance is not required in other countries for presumed liability is evidence of their lack of cogent political thought on the issue, not of something to be emulated.

    And you still show a total lack of awareness of the Scots Law of slander and defamation. You should make your arguments impersonally on their merits. You should not take an individual (me ) and ascribe to them “a rather spurious argument, thrown up with little thought”.

    The law of slander and defamation is another example of what you claim to admire and promote – presumed liability. If you make a statement which is claimed by me to be defamatory, then the fact that it is untrue is presumed. The onus is on you as defendant, to show that it is true. I wish you well in establishing in a court of law that anything I say on a public forum is “a rather spurious argument, thrown up with little thought”

    Time for further amendment of your statement, I would suggest and recommend.

    I have previously recommended that you have the courtesy to remove my name and your offensive prejudicial references to my letter from your blog.
    That is obviously the safest route for you – to remove my name and ALL your
    defamatory and fanciful misrepresentations of what you think I wrote. I hope that is also now obvious.

  2. We both certainly have the right to our views. I express my view in measured, reasonable, and impersonal terms. What you do not have the right to do is to express your views by misrepresenting and maligning me on a blog site.

    Do you really think the problem will be resolved by you deleting my comments to your blog, or ignoring my emails? I suggest you contact me immediately to agree a retraction and apology. You have my email address, my letter gives my home address, from which you can find my landline number. You are offered the opportunity to delete your comments and to contact me and to discuss terms for settlement.

    Norman Dryden

  3. You blog:-

    ‘He (Norman Dryden) finishes his letter by saying that accidents are the fault of “aggressive” cyclists being on the roads and that therefore there is no justification for strict liability. ’

    You quote the word “aggressive”, to ascribe it to me.

    I made no such statement. The only occurrence of the word in my letter is:-

    ‘Cyclists will experience aggressive and incompetent drivers’

    and,

    ‘and that therefore there is no justification for strict liability.’

    could not have been stated by me as following from something that I didn’t say.

    My final paragraph was composed and submitted as

    “The speed and behaviour of many cyclists, particularly in towns, needs some
    attention, as does their training and road skills. Strict liability
    legislation does not seem warranted at present. It is not as equitable as
    established legal principles, nor is it particularly relevant: it is a
    single-sided proposal dealing with only one aspect of much wider and more
    significant issues which can be better addressed in a balanced, fair and more effective way.”

    Even allowing for the paragraph split in the Herald editing, the following text to ‘does not seem warranted AT PRESENT’ obviously qualifies and justifies my reasoning on strict liability, and that it is much wider than your selective misquote, as would have been obvious if you had linked to or accurately quoted my letter.

  4. You blog:-

    !Norman Dryden, who suggests that “strict liability on the part of careless cyclists for pedestrians would be of little value”. His main argument is that most if not all the risk to pedestrians comes from cyclists and not motor vehicles’

    I stated no such argument – which is in any event an argument IN FAVOUR of strict liability of cyclists for pedestrians.

    My argument is clearly stated in my letter:-

    “Strict liability of cyclists for pedestrians is of little real value unless backed by compulsory insurance and the display of visible, valid registration details.”

  5. You are indeed entitled to your views.

    I have in my previous comments,politely suggested you remove this section from your initial blog.

    You can indeed make your points but not in a context which (under Scots Law)
    slanders and defames me. That remains on display in your initial blog. I have emailed you privately on this.

  6. Presumed liability for cyclist.

    My letter to the Herald was addressing specific problems of injustice which can arise with presumed liability, and gave argument and evidence to this effect.

    The link to it, and the useful comments which followed, is

    http://www.heraldscotland.com/comment/letters/strict-liability-on-the-part-of-careless-cyclists-for-pedestrians-would-be-of-little.22537279

    I made NO argument that ‘ most if not all the risk to pedestrians comes from cyclists and not motor vehicles’. I have long and expert knowledge of the statistics of traffic accidents. I made clear the personal context in which ‘I’ was at risk, and why.

    Cyclists’ presumed liability for pedestrians is a quid pro quo offered for presumed liability of motorists for cyclists. It is of little value, particularly for the few deaths and more numerous injuries caused to pedestrians, if not backed by compulsory insurance. That is a statement of the obvious.

    Stating that I was ‘expecting praise for driving with the minimum level of due care and attention’, is a pejorative and sneering misrepresentation. Nothing I wrote was to that effect or seeking praise.

    I do not ‘finish my letter by saying that accidents are the fault of “aggressive” cyclists being on the roads’. I make some comments on the contribution to safety necessary from ALL road users, and the best way they ALL could achieve this. I express particular concern for vulnerable road users.
    Since the topic is on reducing accidents to cyclists, I make some moderately expressed comments on the obvious problems and he need to address them and the obvious factors to be addressed, including by themselves.

    I am a cyclist and in favour of action on safe cycling. I have professional experience of road safety, and expertise on road law and the law of negligence and liability. I have personally pursued issues of road safety for many decades, particularly in the interests of cyclists.

    The ‘problem’ seems to be that I have a balanced view of the issues, and an interest in any law changes being fair and just.

    You seem to have an agenda, and are using my name and prejudicially misrepresenting what I say outwith the carefully structured context and content of a letter addressing a particular aspect of the law.

    You do your agenda, and constructive progress on road safety, no favours, and much harm, by such tactics, as well as being gratuitously offensive.

    Others who have commented and interacted on my letter have done so with fairness and personal courtesy on all sides.

    I’ll be interested to see if you have the courtesy to remove my name and your offensive prejudicial references to my letter from your blog.

    Norman Dryden

    1. You are as entitled to you views as I am to mine, your comment is published. Thank you for the link to the letter, I was unable to find it at the time, people can now read it and make up their own minds.

      Here is what you letter say:

      “You have featured several letters from cyclists and pressure groups promoting strict civil liability of motorists for accidents with cyclists (“Time to act on stricter liability”, The Herald, October 26).

      The quid pro quo of strict liability of cyclists for accidents with pedestrians is also proposed.

      I walk very extensively in the city, and can choose when and how I interact with road traffic on my journey. With appropriate care for myself and consideration for others, that is generally a swift and safe process. The only significant exception involves cyclists, where reckless cycling on pavements, careless manoeuvres, and failure to stop at light-controlled junctions and pedestrian crossings, are a constant risk to pedestrians and other road users.

      Strict liability of cyclists for pedestrians is of little real value unless backed by compulsory insurance and the display of visible, valid registration details. That would involve major administrative overheads and costs and, it is to be hoped, formal training and testing. Is this what is on offer?

      I am a former cyclist and, as a car driver, give particular attention to the difficulties and vulnerability of cyclists. In recent years I can recall three significant events when cyclists, without signal or warning, suddenly moved into my path and could have been killed or severely injured had I not been able to take emergency avoiding action.

      My awareness and caution will have contributed to avoiding collision, but timing, luck, and my not being distracted by other hazards, played a part.

      In each case the cyclists were careless or reckless. In two cases they were teenagers seemingly lacking training and road sense; in two cases there were no witnesses and under strict liability it would have been difficult to defend an assumption of fault on my part.

      Cyclists will experience aggressive and incompetent drivers. However, the majority of drivers are people of good intent, many of whom would suffer severe and lasting psychological trauma if they killed or seriously injured others in a road accident. That would be exacerbated if they are not at fault, but held liable because of lack of evidence.

      We do need much better skills and behaviour from all road users. Better training and enforcement both have a part to play. But accident rates will best fall further by defensive driving and cycling: moderating speed to cope easily with the road and traffic conditions, and making allowance for your own mistakes and misjudgments as well as for those of others.

      Particular consideration is required for vulnerable road users, but they, in turn, need to recognise their own vulnerability and exercise particular care.

      The speed and behaviour of many cyclists, particularly in towns, needs some attention, as does their training and road skills. Strict liability legislation does not seem warranted at present.

      It is not as equitable as established legal principles, nor is it particularly relevant: it is a single-sided proposal dealing with only one aspect of much wider and more significant issues which can be better addressed in a balanced, fair and more effective way.”

  7. The basic tenets of Strict Liability were actually delivered in the first Motor Car Act of 1903 – when the car was actually defined specifically as being not a light road locomotive, and also recognised as a carriage for the purpose of fundamental Highway Law going back at least as far as the Highways Act 1835.

    First, in recognising the massive damage that a motor car could cause the 1903 Act made it a legal requirement for the vehicle and driver to be insured to cover their liability to third parties, with the scale of the insurers operation considered sufficient to meet the scale of likely claims. Individuals, travelling on foot or on cycles are often likewise covered through household insurance, or cover through membership of a cycling club.

    The current legislation also has (in England its RTA 1984 s.170) a requirement for a driver to provide ‘details’ to ‘any person reasonably requiring them’ if the motor vehicle they are driving causes damage or injury by its PRESENCE on the road (note that no actual contact is required so that being forced to crash on a bike by the presence of a motor vehicle is equally grounds for founding a civil claim)

    So it should be a relatively simple matter of actually using the law as it is already available to use, which reminds me about the Highways Act 1835 s.72 (but in Scotland this is technically Roads (Scotland) Act 1988 section 129(5)) Cyclsts are pilloried for breaking these laws, but through their own admission 54% of UK drivers regularly lay themselves open to a £60 fixed penalty fine, and 3 points on their licence. In Scotland the regional figure does drop to 40% though. The evidence is also clear that drivers offend more dangerously and frequently from the annual toll of dead and seriously injured pedestrians from collisions with cars driving on footways. The evidence is clear for all to see in cars parked on the footway and the English offence of obstructing traffic (on foot just in case you’ve failed to notice) can incur fines up to level 3 (£1000) and a ride for your car to the Police Pound, which does not come cheap either. I am amazed at the total lack of enforcement, and the short term opportunity to fill coffers with a great crop of FPN’s and court fines. Oh that would of course be an assault on the poor put-upon motorist, sadly a minority group in Central Glasgow where barely 35% of households own a car, but tolerate a daily invasion thanks to the M8 and near limitless provision of places to park and create the problems at peak hours. But that’s another story.

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