Presumed Liability (and Strict Liability)

[For a deeper explanation of presumed liability, see this later article.]

Back in February, I was prompted to write to my MP to request that the government consider introducing a principle of presumed liability*. The letter I wrote is shown below:

Dear David Crausby,

I am writing concerning the current state of affairs regarding the treatment of vulnerable road users by a small but significant proportion of motor vehicle drivers. My own experience as a cyclist, commuting 25 miles round trip to work and back, is that there is at least one incidence of a driver taking significant risks in relation to my safety every day.

In this country, where the roads are shared by motor vehicles, pedestrians and cyclists, it is clear that motor vehicles bring almost all of the risk to the situation. 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.

Given this huge imbalance in risk, it is surprising that, in most such incidents, the burden of proof when seeking redress currently rests on the injured party to prove negligence on the part of the injuring party. Since it is very difficult to prove negligence in such cases, the personal risk to those motorists who do not show regard for the safety of vulnerable road users is unlikely to be sufficient to influence their behaviour and cause them to take more care. All this does not seem fair to me.

The government claims to be concerned about the poor health of the nation including the problem of rising levels of obesity, ecological sustainability, and energy consumption, yet does not currently seem to have the will to take the actions that would be necessary to encourage a more active and sustainable lifestyle through activities such as replacing car journeys with foot or bicycle journeys.

Given these points, 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), an approach sometimes referred to as strict or presumed liability. This would show the commitment of this Government to its agendas of societal and social fairness, healthy living and ecological sustainability.

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.

Yours sincerely,

Yesterday, I received a copy of the response that my MP received from the Parliamentary Under Secretary of State in the Department for Transport, Mr Norman Baker. This is the response:

Dear David,

Thank you for your letter dated 22 February to Philip Hammond, in which you enclose an email from your constituent, who raises the issue of legal protection for vulnerable road users called “strict liability”. I am replying as the minister with responsibility for this issue.

If there is an accident, in road traffic personal injury cases in the UK, the burden of proof is on the victim to prove the other party was negligent. In contrast, many countries in Europe apply “strict liability” to vulnerable road victims, eg pedestrians, children and cyclists. To varying degrees, these are applied in Austria, Denmark, France, Germany, Italy, Netherlands and Sweden. Under “strict liability”, the burden of proof is reversed. Vulnerable victims, not drivers, are the ones assumed innocent with regard to causing their injuries. It is up to the driver to prove that the pedestrian or cyclist was negligent. Strict liability only applies to civil compensation and does not affect criminal prosecution.

The law often uses strict liability in situations where there is likely to be an imbalance in terms of responsibility and where there is an inherent danger. Strict liability is already in use in English civil law, including workplace health and safety incidents (an employer has a duty of care to their employees so far as is reasonably practicable) and product liability (a manufacturer automatically has to address the problem if the product they sell is defective, and those defects lead to injury, loss or damage).

Cyclists and pedestrians are vulnerable in collisions with cars and other motorised vehicles. The latest STATS 19 data show that in 2009, in car/pedestrian collisions, 299 pedestrians were killed with 1 car occupant fatality, whereas in car/cyclist collisions, 51 cyclists were killed with no car occupant fatality. In passing it should be noted that in 2009, in cycle/pedestrian collisions, one cyclist but no pedestrians were killed.

The road safety argument for strict liability is that it has the psychological effect of making drivers more aware of the vulnerability of children, cyclists and pedestrians. In support of this argument, many of those countries with strict liability have much better cycle and pedestrian safety in terms of fatalities per billion kms walked/cycled (using “International Road and Traffic Accidents Database” (IRTAD) 2005 report). The fatality rate for the most vulnerable group of child (10-14 year old) cyclists, which represent a group of road users who potentially would benefit most from strict liability, may be about 5 times worse in the UK than Netherlands and Sweden according to one European study[1]. Another report[2] on child road safety attributed some of this difference to the law of strict liability.

So far, so good, I thought. Perhaps they really are receptive to the arguments, and writing to the government can make a difference! Unfortunately, the last paragraphs read as follows:

However, there are also likely to be many other factors to explain these differences including the higher percentage of cyclists in those countries. Additionally, the evidence from the Think evaluation and other research suggests that driver behaviour change is more likely to be motivated by serious personal consequences, whether it be death or injury to themselves or others, or criminal punishments such as loss of their licence or imprisonment, than they are by any insurance issues. So the Department has focussed on those approaches to behaviour change rather than insurance or liability.

Any change in the law is likely to be very contentious and it would be important to have strong evidence of a benefit to justify a change in the law.

I hope this reply is helpful.

Yours sincerely,

Norman Baker.

[1] Bly et al. (2005) Child Pedestrian Exposure and Accidents – Further Analyses of Data from a European Comparative Study
[2] Christie N, Cairns S, Ward H & Towner E, (2004 July) Children’s Traffic Safety: International Lessons for the UK, Road Safety Research Report No. 50, DfT, London

So there we have it: “So the Department has focussed on those approaches to behaviour change”. Are they suggesting that “those approaches” on which they have “focussed” are working, then? Where is the evidence for that? It seems to me that there is much evidence to the contrary!

This reply seems to boil down to: “here are loads of arguments as to why we should move to [presumed] liability, and there is research to back these arguments up, but we think there may be an outside possibility that these are wrong, and it might require some political work, so we really can’t be arsed”. Or am I being too harsh?

*Technically, whilst “Presumed Liability” refers to the principle that the the motorist is presumed to be liable unless they can prove fault on the part of the injured party, “Strict Liability” refers to the principle that the motorist is presumed liable irrespective of whose fault the incident was. However the two terms tend to be used interchangeably by many people.