Friday, 22 June 2012

Stricter Law Enforcement (not Strict Liability!)

I've just finished reading this article in The Times which is pressing for strict liability in cycling accidents. This would mean a presumption that a car driver is liable in any accident with a cyclist. The argument may hold a little more sway than usual as Mark Cavendish is lending his support, and it would be for the driver to prove otherwise. I have already blogged about strict liability here so I will not trot out the arguments again. However, I will mention the case of O'Connor -v- Stuttard as it illustrates that there is already a heavy onus upon drivers in civil cases, which is what Mark Cavendish says is needed.

O'Connor -v- Stuttard

This case was heard in the Court of Appeal in June 2011. There were a group of children playing with a football in a quiet residential side street and the defendant was driving towards them at about 10 mph. He saw the group of young children playing on the right hand side of the road and slowed further and positioned his car very close to the left side of the road. As he was doing this, the claimant (a 9 year old boy) ran across the road, from right to left, about 15 metres in front of the car. The child reached the left pavement and continued to play with the ball. The boy was not looking towards the car but was concentrating on the movement of the ball. In order to control the ball, the boy moved backwards to the very edge of the pavement, so much so that the heel of his left foot overhung the edge of the kerb. The driver struck the back of the claimant's foot as he was passing, causing him quite serious injury.

The Court of Appeal found that the driver was driving, albeit slowly, very close to the kerb of a pavement on which the young boy was playing ball. The boy was looking at his ball, not at the approaching car and the driver should have appreciated that the boy was wholly unpredictable. As a result, the driver should have either stopped or sounded his horn or both. The driver did not do either, so was found to be liable for the boy's injuries.

Criminal Cases

In my view, it is not civil law which has the problem, as there is already a fair system in place and a strong onus on drivers to act responsibly. (This is notwithstanding the changes to be introduced by the insurance-backed and ill thought out Legal Aid, Sentencing and Punishment of Offenders Bill, which will come into force in April 2013, but that is another story).

The issue comes with the criminal sanctions for those who cause accidents with cyclists. Take Robert Wightman, the Cumbrian coach driver who has today been cleared of killing two brothers (Christian and Niggy Townend) whilst they were cycling on the A595. Wightman told the jury he could not see the brothers, apparently due to the sun being in his eyes. The jury also heard that the coach’s windscreen washer was not working because freezing had displaced the pipes from the nozzles to the washer fluid bottle. As a result, grit and ice had smeared on his windscreen and Wightman said he could only see 20 to 30 metres ahead, and conceded he could not have stopped in that distance.

I have not heard all the evidence in this case, but it seems remarkable that there was no conviction in this case. However, the most frustrating thing is how few criminal cases even make it before a court in the first place, as the police show little appetite for prosecuting motorists where cyclists have been injured or put at risk.

RoadSafe London

The London Metropolitan police's RoadSafe London website was set up to encourage people to report "criminal, nuisance and anti-social behaviour on the roads of London". However, a Freedom of Information request showed that only 21 cycling intelligence reports were generated from the 530 near misses reported by cyclists plus (no doubt) a share of the 476 reports of anti-social driving. This means that only 3% of the cycling complaints resulted in any further action, which is horribly low by any standards.

There are few positive tales given by cyclists who try and prosecute drivers. Martin Porter QC has written in detail on the inaction by the police, even when they are handed video footage of dangerous driving. For these reasons, I think Mark Cavendish (and the other groups calling for strict liability) should redirect their gaze away from trying to change civil law and should focus on the inadequacies of legal enforcement. Otherwise it may only be a matter of time before private prosecutions are needed to get justice for cyclists.


  1. My perception is also that there are few prosecutions for car vs bike incidents, and that sentences are frequently lenient. However, I also sympathize with the view that there is little served by throwing a driver into jail for a lapse in concentration.

    Instead, I'd like to see significant driving bans being levied much more frequently for careless/dangerous driving offenses. It is bizarre that we have to pass a fairly stringent driving test to be granted the privilege of driving, but that subsequent driving in a way that would clearly cause a fail is not penalized by revoking that privilege.

    I do think that volume of sentencing is important, as well. At the moment, my perception as a driver is that I'm unlikely to be censured in any way unless I speed past a safety camera, or are involved in a serious accident. And even then, I'm probably going to be OK. It would be far more healthy if I were to expect a ban for any infringements of the highway code, or contact with any other road user. I don't think that such a significant change in attitude can be effected without a larger volume of sentencing.

    1. Hi Richard - thanks for your post. The point you make about the difficulty of the driving test vs the laxity of the penalties once you have passed is a good one.

  2. The sooner that HSE get a handle on the road as a workplace we may move to the more sensible terminology for this campaign. You have wrongly quoted Mark Cavendish, he has picked up a detail I've also been trying to wake the Strict/Stricter Liability crowd to.

    Mark use the term Presumed Liability. The HSE also uses the presumption of liability to apply the condition described as Duty of Care. An employer in discharging their Duty of Care makes sure that the equipment used is in good order, the employees appropriately trains and the operating conditions controlled. Employees also carry the liability for duty of care - for example when using something dangerous like a chainsaw.

    There is thus a Presumption of Liability born by the operator in an incident involving a chainsaw, or in another example, a gun, even if the injured party may have a key element of fault through wandering in to the operating zone, there is a presumed liability on the operator to operate with due care to accommodate the errors of others, given the destructive power of the equipment being used.

    This transfers directly to the operator of a motor vehicle, especially a large motor vehicle with (through failings in the design and legislation which deliver these) no collision management system, no minimum standard for direct vision, and vehicle length legislation that delivers flat fronted trucks with engine blocks close to that front panel making trucks far more dangerous than they might be, if the legislation permitted .