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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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The Sacred Driving Licence

The Sacred Driving Licence

Today saw the launch of the “Decade of Action for Road Safety 2011-2020“. Never one to miss a photo opportunity, David Cameron had agreed to help launch the UN’s Decade of Action for Road Safety and managed to get Britain’s two Formula One racing drivers, Lewis Hamilton and Jenson Button, to join him. We also had the announcement from Transport Secretary Philip Hammond of the introduction of On-the-spot fines planned for careless driving, as part of the Strategic Framework for Road Safety. All of this sounds like the Government is keen to do something about reducing the damage done. The Framework clearly says that “Road deaths and injuries are a tragedy for all those affected. And as well as the terrible human cost, they impose a heavy economic burden.” This sounds all very well, but let’s just have a closer look:

First, why were two racing drivers at a photo call to promote “road safety”? Button has a number of convictions for speeding and Hamilton has been charged with speeding in the UK and reckless driving in Australia. Not good role models in a country where 40% of young drivers think there is nothing wrong with breaking the 30mph limit by 10mph or more.

Secondly, there is a major problem with the Strategic Framework for Road Safety in that its central theme is absolving the majority of those drivers from their responsibility for most of the danger on the roads. It does this by diverting attention onto the very worst drivers, but has no serious intention of dealing with these people either!

The new strategy says that, instead of drivers being taken to court for driving offences, police can fine careless drivers. Offenders will get a fine of at least £80 and three points on their licence. This is not about making the roads safer, it is about cutting costs, by avoiding taking people through the court system. It isn’t even intended as a deterrent. In a country where you can be fined £1,000 for dropping litter, why is it proposed that an activity which puts lives at risk should only attract a fine of £80? Why is there such a reluctance to deal with the issue of danger on our roads?

We all have the right to use the roads, on foot, riding a bicycle or riding a horse, there is no right to drive. Driving on the public road is a privilege only permitted by licence, this licence is granted under trust after passing a driving test. The driving test is there to ensure that drivers can drive to a safe minimum standard. It is well known that the majority of accidents collisions on our roads are caused by driver error. This is why there needs to be a clear hierarchy of liability, with those capable of causing the greatest harm taking a greater level of responsibility.

However, we have somehow allowed the situation to arise where the holding of a driving licence is increasingly being seen as a sacred right. There are hundreds of drivers on the roads with 12 penalty points. All too often drivers who have broken the law (and the trust placed in them when they received their driving licence) avoid a driving ban, by claiming such a ban would inconvenience them. The courts will not accept such a defence for any other form of criminal activity, car crashes have long been a greater killer of the young than violent crime, so why such a softly, softly approach to driving?

In this country you can legally hold a shotgun under licence, however if you were to accidentally discharge it over the heads of people in a public place, you would expect to lose your licence. No court would accept the defence that it was OK because no one was hurt, or that it was caused by a momentary lapse of concentration, or that you had been distracted by a phone call on your mobile, or that such a ban would cause you inconvenience. Before anyone complains that this is not a fair comparison, being hit by a motor vehicle is just as damaging as being shot, the level of kinetic energy is about the same. It doesn’t make a difference to the person who is killed or seriously injured, whether they were shot or hit with a motor vehicle, they are still dead or maimed either way. Drivers should never forget, cars can kill!

We have a situation where most people think that they are better than average drivers, but at the same time 40% of drivers feel that they would fail a driving test if they had to take it again tomorrow. Until we have a change of attitude, drivers will undoubtedly continue to blame everyone else on the roads but themselves.

Addendum:
Sadly the Secretary of State for Justice, Kenneth Clarke QC, MP, seems to be incapable of understanding the concept of dangerous driving. Apparently “ordinary dangerous driving” isn’t a serious problem, but then this is a man who doesn’t think all rapes are a crime. All rape is rape and all dangerous driving is dangerous, both destroy lives. I just wish Ken Clarke would stick to playing records on the radio and leave the serious stuff to people who understand the real world. My thanks to Joe Dunckley for the tip off.

More news has come to light, this time from Scotland, where at least 387 drivers have more than 12 points on their licence:

More news has come to light from Scotland where at least 387 drivers have more than 12 points on their licence

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