Strict Liability: if you want it, ask for it.

If there's one reason why more people don't cycle, and one reason only, it's because the majority of people don't feel safe cycling on our roads.  There are many things that can be done to combat this; the provision of better cycle infrastructure, as I've previously espoused, will go a long way.  Maps providing 'quiet routes', free or subsidised cycle training, and behavioural campaigns can all help too, but to a much lesser extent.  The big wins come from reducing the fear of cycling.

I don't think it is irrational to be afraid of cycling in traffic.  I'm a 6ft tall twenty something lad.  I keep fit and can pick up the pace with the best of them when I want to.  I consider myself to be a strong, attentive and considerate cyclist; always looking ahead in the road and assessing what obstacle I might need to navigate next.  But that's not to say I don't sometimes feel genuinely terrified on our roads, no matter what my 'right' might be to ride there.  Being overtaken at speed whilst riding wide on the narrow back streets of Covent Garden by a 40-tonne supermarket truck whilst the driver screams out of his window "Get out of MY way!" is an experience that would deter most people.  It deterred me for a while.  If I had kids would I let them cycle in similar conditions?  Would my dear old Mum who rides at a stately but sedate pace be able to dodge and swerve at speed to avoid getting sucked under said supermarket lorry as I did?  Would I even feel comfortable letting her try?

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Navigating Holborn Circus

And even if my Mum, or my hopefully never-to-materialise-rhetorical-children did feel they could manage the streets, how much of a disincentive would it be to their riding if they knew that were they to be hit by a car, or a bus, or a truck that they would have to chase the Police to collect evidence properly, be treated like idiots by coroners, endure months of Court Room anguish only to have their collision essentially pooh-poohed and shrugged off as 'one of those things'?  That's what Eilidh Cairn's family have just been through, and the lorry driver who ran over and killed their beautiful daughter, their marvellous sister, was fined just £200 for driving with defective eye sight and was not even prosecuted for the collision.

The family of Catriona Patel are in Court this week going through the same broken, painful Judicial system essentially trying to prove that someone who was unfit to drive is guilty because his actions led to her death.  It's a sick set up that puts all of the onus on the bereaved to pursue Justice as fast as they can as it flees in the name of 'fairness'.

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Critical Mass against lorry danger, March 2010. Lauriston Road, Hackney, where flowers were laid on the spot where Shivon Watson was hit and killed by a skipper lorry.

If tomorrow I take a gun, point it at a cyclist and pull the trigger, I would do so in the knowledge of what the consequences of such actions would be.  The Law would not hesitate to find me guilty and serve up a suitable punishment.

If I drive past a cyclist in a car I know that bikes, by their very nature, can behave erratically (swerving pot holes, wobbling in the wind etc).  I should follow the advice given in the Highway Code and give that cyclist as much room as I would another car should I decide to overtake.  If I come to the traffic lights and pull up to the Advanced Stop Line, having passed my driving test and therefore having been deemed to understand the rules of the road, I should wait outside the box and "mirror, signal, manoeuvre" before driving off on green, checking for other road users before I set off.  Common sense, you'd think?  But there are plenty of  instances where a driver has hit a cyclist or a pedestrian in similar circumstances and gotten away with little more than a wrap across the knuckles.

Carlton Reid's take on Strict Liability, from his website I Pay Road Tax

"Strict Liability" (Wiki) is a legal process in force in all but 4 EU Countries for road traffic law, of which the UK is one.  Essentially it introduces a 'food chain' to the road environment; the more dangerous the vehicle you drive the more onus there is on you, as the source of danger, to be the one to look out for more vulnerable road users.  Cyclists are expected to look out for pedestrians, car drivers for cyclists, truckers in 40-tonne rigs for everybody else.  Under Strict Liability if you hit a cyclist in a car it's up to you to prove that you are innocent, as oppose to the injured cyclist (or their bereaved family) trying to prove that the bigger threat was guilty. 

Opponents to the EU 5th Motoring Directive, which will potentially bring 'Strict Liability' to our shores, will tell you that it will give errant cyclists free reign to ride as they please, even if it puts them and other road users in danger.  This is clearly nonsense; if the actions of a cyclist directly lead to the collision then the Courts of Law are still there to prove this and find the perpetrator of a collision guilty.  Furthermore I see potentially few cyclists flinging themselves into the paths of oncoming motorists in order to make a point.  Opponents also say that our laws are based on the bold principal of everyone being "innocent till proven guilty" but this is just a convenient soundbite.  If you rear-end a car in the UK you are guilty by default for being too close to the car in front, no matter how erratically or oddly that car might have been driving.  Strict Liability will introduce the same concept for more vulnerable road users, and already exists in other sectors of law such as commercial law with regards to dangerous practices.

Once upon a time in the UK it was socially acceptable to drink and drive; everyone did it and therefore it was what a Lawyer friend of mine called "a shruggable offence", that is to say something so common that it hardly seemed a big deal.  Social attitudes have changed on that front, and they can again for Strict Liability.  Right now if you overtake within inches of a cyclist it is a "shruggable offence".  No one will think any more of it, nor that it is especially serious.  Indeed, we even have cycle campaigns built around the whole inevitability of it all with "Sorry Mate I Didn't See You".  Strict Liability could help to change this, essentially forcing people to take the level of care they know they ought to around more vulnerable road users.  Twisting the arm of the worst perpetrators of road incidents is a course of action I'm prepared to ake if it increases the desirability and feasibility of walking and cycling for more people, and most importantly if it helps to make our roads safer.

The headline-driven backlash against even the idea of Strict Liability will, when the time comes, be so loud and so poisonous that it could, in true tabloid fashion, seriously compromise the likelihood of it ever being introduced here.  Indeed Petronella Wyatt of the Daily Mail has already had a good bash at it and wasn't afraid to use lies, damn lies, to push her agenda on this subject.  There will be many others too, and if they all shout loud enough don't be surprised if our leading politicians stand up in the House of Commons and say the very thought of this legislation makes them sick.

The key to getting legislation passed is to ensure that our elected officials have heard loudly and often from their constituents that said legislation is desirable to them.  Before the tabloids start their engines it would be no bad thing if every cyclist in the country dropped their MP and MEP a quick line telling them how MARVELLOUS they think Strict Liability is and how you simply won't be able to WAIT to vote for them again should they help usher in this legislation.  Do it, do it now, before Petronella Wyatt and her ilk get there before you.

You can write to you MP or MEP using the automated email service They Work For You.

With regards to lorry danger; Catriona Patel's hearing takes place this week at Inner London Crown Court.  The London Cycling Campaign is calling for signatures to a petition requesting all London Councils introduce cyclist awareness training for their lorry drivers.  Why not sign it over here? 

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15 comments:

David Hembrow said...

Strict Liability is a good thing, but it's being rather over-emphasized in some quarters. It seems to be the latest thing jumped on by anti-segregation types as something to do instead of campaigning for the changes which will really make a difference.

A change to the legal liability will be extremely hard to achieve when the majority are not cyclists and don't understand about cycling. This is what you're seeing from the rabid responses of the Daily Mail and others. If it is achieved, then convincing the police and courts to actually enforce it will still be difficult.

However, don't worry too much about this. It's not actually that important in the overall scheme of things. In the Netherlands, Strict Liability came only after the majority of people cycled, and when there was already a very high degree of segregation and planning around bicycles. It's a very minor issue because collisions are rare due to modes being kept apart. This is as true where there are no segregated cycle paths as it is where there are segregated cycle paths.

John the Monkey said...

We've not a cat's chance of getting the sort of segregated infrastructure you advocate under the current regime though.

I think the thinking around strict liability (or even enforcing the laws we currently have) is that they *could* be an easier sell in a climate of austerity than capital heavy infrastructure projects.

ibikelondon said...

Indeed John I think it's worth asking out loud for both, even if we have no chance of getting either. You don't turn up at the Olympics and say "I'm really hoping to win Bronze today" You go for Gold, and are happy - in a highly competitive field - to place anywhere at all.

Carlton Reid said...

Strict liability isn't so much a criminal thing, sadly. It's an insurance thing. It places the onus on the hitter's insurance company to prove innocence rather on the victim's insurance company proving the hitter is guilty.

In effect, this would be a minor switch in legislation. It would be a harmonisation of UK and EU law, something that happens all the time. However, it will need politicians with big balls to get it through parliament.

There's something about the Netherlands that prevents drivers smashing into cyclists, and it's not just protected cycle lanes. Strict liability is a bigger thing than David H is making out, as is shown in the video. It's not my view of strict liability in that video, it's a Dutch cycling expert's view.

The video was shot on a parliamentary fact finding trip to the Netherlands. The Lords and MPs loved the Dutch infrastructure. Did they come back and clamour for it, even though they're 'everyday cyclists'? Did they f*ck!

Now, on your point about motorists frothing at the mouth over strict liability I've covered this many times on BikeBiz.com.

David H says this is a "latest thing being jumped on" by people like me. Latest? As in 2002 you mean?

Check out the vile comments from the usual suspects:

http://www.bikebiz.com/news/read/motoring-lobby-furious-about-eu-plans-to-protect-cyclists-britis

ibikelondon said...

Your right - the bile with regards Strict Liability has been espoused before, and it will be again when the time comes for the EU to push the UK to harmonise their laws.

Whilst of course it's mostly about insurance and will really help with minor accidents, what I hope it will do is begin to redress the balance in serious cases like those of Eilidh and Catriona when it comes to the Courts. At least then there will be more of an even playing field. And, hopefully, it will help to make drivers just that little bit careful too.

PS Carlton, I don't consider you to be one of those "anti-segregation types" and nor do I think SL is something you've jumped on recently. I saw your 2002 piece when I was researching this one. Our idealogical difference seems to stem from how loud we should call for segregation in places or not, not whether the application of Dutch-style cycle lanes in certain places is a good thing or bad. For all the toing and throeing between our 2 blogs I suspect we are closer on this issue than might first seem apparent, which makes things all the more surprising considering the strength of feeling we've whipped up between the two camps.

All the best,

Mark

Paul M said...

If you are asking me to lobby my MP for strict civil liability, then I am happy to do so. What I will not, cannot do, is seek any presumption of criminal guilt until proven innocent. That is repugnant, and it is no excuse to argue that it effectively exists in other circumstances - it shouldn't.

If you embellish the debate in terms of guilt or blame, you are bound to lose the argument, and you are offering up a perfect effigy for the Daily Mail to burn.

All the same, strict liability has two obvious benefits: it means that the vulnerable claimant doesn't have to prove, on the civil law test of balance of probabilities, that the other party was at fault, so cases should resolve far more quickly. I assume they also don't risk losing part of a claim on contributory negligence (eg not wearing a helmet). This is not about fault or blame, it is about liability which is a purely legal concept. Secondly, the person defending the claim will face an increase in insurance premiums and loss of no claims discount which should make themm think at least a little about the consequences of an accident.

None of this prevents a truly criminal act from being prosecuted. We don't need any new laws to achieve that - we just need the ones we have to be enforced.

christhebull said...

Of course, in that Daily Fail article, the cyclist WOULD have been held responsible for colliding with a pedestrian. IMO the only way to sell strict liability is to emphasis the pedestrian aspects of it.

David Hembrow said...

Carlton: It seems rather a straw man is being erected here. I've never said it was "just about protected cycle lanes", and I'm not aware of anyone else who has ever made that claim either. It would be absurd to make such a suggestion.

Roads here are designed not only to accommodate cyclists and keep them safe, but also to make driving a very different experience to what it is in the UK. Junctions have such things as smaller radii to reduce speeds, but also small roads are in effect no-go-zones for drivers because rat-running is not possible by using them. Segregation is what has lead to the high subjective safety of cycling in the Netherlands, but it does not always require cycle paths.

Give him a chance, and Hans has much to say about all of this as well as about the law. In fact, he had much more to say in your original longer video. What you've done with your strict liability video is to quote a small part of his presentation out of context.

Your video shows much cycling in segregated and or traffic calmed areas, or of crossing streets, along with a sound-track giving a gross simplification of the law. An official simplified version of the law can be seen here. It's rather more complicated than it is being made out to be in your video, and you'll see that in many cases a driver in an incident will not be held 100% liable.

You might also like to consider that most Dutch people I've mentioned this to are unaware of the legal difference, and that there is no simple phrase (like "strict liabilty" in English) to describe it. That's how conscious the Dutch are of this law. It's certainly not something which comes to the forefront of every driver's mind when he sees a cyclist.

You may well have been interested in strict liability since 2002, but sadly for that time I think you've been misinterpreting both the law and also its implications on what actually happens on the streets of the Netherlands. This remains a very small part of the picture.

The "fact finding trip" was somewhat a missed opportunity IMO. It's not all that often that politicians from the UK show any interest at all in cycling, and what they got was a tour which was organised in large part by a railway company looking to renew its contract, together with an emphasis on "bikes and trains".

Cyclists deserve better.

ibikelondon said...

@Paul M To clarify, I mean strict civil liability. My references to some rather unpleasant court cases occurring at the moment was meant to portray the idea that perhaps a greater insurance burden (which strict liability will provide) might make drivers operate carefully enough to stop such cases happening in the first place, not that in a criminal sense the bigger party is guilty be default.

Of course when it comes to a criminal case the Courts of Law exist as they are and do what they do. But perhaps the introduction of civil liability will make those higher courts operate will help to nurture an approach to road safety by the wider populace which might be reflected in the decisions of those higher courts.

Thanks for your thoughts!

ibikelondon said...

@David Thanks for stopping by and giving us an insight in to how things are on the roads in Holland. Thanks also for taking the time to illustrate your POV with first hand experience - it speaks volumes.

As you rightly point out we need a tapestry of measures to encourage cycling, and our campaigns should of course be pushing for all of these, starting with the 'big ones' as their 'Gold medal' aspirations!

The Woollen Typist said...

The Daily Mail and Petronella Wyatt are fine examples of the ignorant attitudes held by many road users.

Also with all the 'cuts' the government seem to be making, not sure whether all this is going to feature highly on their list of priorities...unless, of course, people get in there and contact their MP's and keep pestering them.

Dave Escandell said...

Great blog article in the main. Just a comment as to 'strict liability' is that really what cyclists want? has the terminology been confused?

hopefully this clarifies it a bit

http://cycling.access-legal.co.uk/2010/11/fixed-penalty-notices-were-london-cyclists-illegally-fined-in-the-summer.html

Dave Escandell said...

sorry, I meant this link.

http://cycling.access-legal.co.uk/2010/11/strict-liability-v-presumed-liability.html#tp

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