Wednesday, 4 September 2013

Strict Liability article

I recently wrote an article for Cycling Weekly on strict liability, looking at why it may not be the change that cyclists are looking for. 

Here is a longer version of that article, which may be of interest. Since it was published, the Department for Transport has announced that it will be holding a review of the sentencing guidelines for death by dangerous driving and death by careless driving.

The Liberal Democrat policy paper Green Growth and Green Jobs has recommended the introduction of strict liability in cycling cases, bringing this subject back into the public eye. The concept of strict liability is not a new one. In 1982, the great judge Lord Denning said that cars (“this dangerous instrument") deal in death and destruction and drivers should be liable to compensate anyone who they kill or injure. Spiderman's uncle put this view across more simply when he said, “with great power comes great responsibility”. It is hard to disagree with that. 

Currently, the person who causes a collision is liable to pay the victim damages for their injuries and financial losses. However, the victim must first show that the other party is to blame. With strict liability, the person in the more powerful vehicle is automatically presumed to be at fault and the duty is on them to prove that they are not liable for the accident. In practical terms it would mean that, following a collision between a car and bike, the driver would have to prove that the cyclist was to blame in order to avoid paying them damages. 

Supporters of strict liability argue that putting the onus on the more powerful vehicle will create a change in attitude and drivers will be more considerate and safety conscious around cyclists. However, it is unrealistic to think that this will come about by strict liability alone. If anything it may increase the divisions between cyclists and motorists as it gives fuel to the anti-cyclist mantra 'one rule for them, another for us'.

The effectiveness of strict liability at protecting the safety of cyclists and encouraging cycling may not be as clear cut as common sense would suggest. For instance, long after it was introduced in Ontario, Canada there are still a low number of cyclists and a high risk of injury. This indicates that strict liability does not necessarily lead to a culture of cycling. Conversely, strict liability came into force in Holland in 1992, long after a cycling culture was firmly established, demonstrating that cycling can flourish without it.

The movement for strict liability has already generated bad press in the Sun and the Daily Mail; it is easy to put a negative spin on the story. At the moment, a full campaign would be deeply unpopular and would further polarise cyclists and motorists. Our political capital would be better spent on promoting wide reaching changes that are really worth the fight and will actually reduce the number of accidents.

Strict liability is often misrepresented as having an impact on criminal law, whereas it actually only deals with cases for damages. It will not make motorists more likely to get points on their licence or receive a conviction. This is the main weakness of strict liability as, in my experience, cyclists are most concerned by motorists getting away with injuring cyclists and whether they can recover compensation is often a secondary issue.

It is demoralising when drivers receive a paltry sentence after having been found guilty of killing a cyclist. Causing death by careless driving has a minimum disqualification period of one year, which is painfully low and reinforces the dangerous message that driving is a human right that should not be taken away. If criminal laws were better enforced, and with more stringent punishments, the roads would be less threatening and the number of cyclists would grow. Cycling groups are already calling for this, such as by British Cycling, RoadPeace and the CTC. In my view, it is here that cyclists should concentrate our efforts.

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