Who is the guilty party in a road accident? A consideration of strict liability

An outline of the case for using Strict Liability in traffic accidents in the UK. 

·       What is ‘strict liability’?

·       What happens on the Continent?

·       What happens in the UK? 

·       What are the advantages in the use of ‘strict liability’?

·      The debate in the Lords and the government’s response.

·       My Freedom of Information question to the Department for Transport and the Department’s answer.

·       A Recommendation.

 

What is ‘strict liability’?

According to Wikipedia) “...a rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability.” (http://en.wikipedia.org/wiki/Strict_liability.

What happens on the Continent regarding traffic accidents?

According to Lord Haskel in the Lords debate detailed below, in the majority of European countries, liability in a collision does not depend on the individual circumstances of the incident but depends on how ‘vulnerable’ those involved are. The least vulnerable will bear the blame following the rule of ‘strict liability’. That means for instance that in a collision between a cyclist and a car, the car driver will be held responsible unless there are special circumstances.

What happens in the UK?

At present the situation is different in the UK. Liability in traffic accidents is established by determination of ‘fault’ based on the circumstances of the accident.

What are the advantages of using ‘strict liability’?

There is a video tutorial at  http://tinyurl.com/6sypsnn which includes a short history of 'strict liability' and its importance in the promotion of public safety. Incidentally 'mens rea' means 'intention'. At 12mins 40secs into the video there is a brief discussion of the advantages of using ‘strict liability’. These advantages are summarised here:-

Reasons for strict liability.

·         It is easier to prove

·         It takes less time in court

·         It encourages compliance with the law

·         It prevents defences being raised as an excuse

·         It makes regulation straightforward

·         It protects the public.

The debate in the Lords and the government’s response.

There was a Short Debate in the Lords on 7^th March this year, entitled Motorists and Cyclists which can be found at http://tinyurl.com/85qq9m6. Lord Haskel spoke “When I ride on the continent, in any country apart from Portugal and the Republic of Ireland, I feel safer. In all those countries the presumption in law is that if there is a collision between a motor vehicle and a bicycle, the driver of the motor vehicle is at fault

The question of ‘strict liability’ was spoken of favourably several times during the debate. However the Government response was negative:-

Earl Attlee when closing the debate said “The noble Lord, Lord Haskel, and others raised the issue of strict liability. In English civil law, the principle of civil liability in motor insurance is predicated on the establishment of fault. In order to prove fault, it is necessary to prove that the defendant's actions caused the accident and were either negligent or intentional. We have had the benefit of advice from the noble and learned Lord, Lord Scott of Foscote, which has saved me the effort of straying outside my area of expertise.

....My Lords, we have considered it, but it would be a little odd to have a completely different legal system just for cycles. There are serious complexities here that in my opinion are insurmountable...”

Several things stand out in this response:-

·       Earl Attlee admits that the subject is outside his area of expertise.

·       He misses the big picture when he defines the subject as one concerning cycles only, maybe understandably given the title of the debate, but misses the point and the value of ‘strict liability’ when applied to all road users.

·       He refers to serious complexities which are ‘in his opinion insurmountable’ when he admitted a few moments before that the subject was outside his area of expertise.

The impression is that the matter has not been given much thought, an impression which is reinforced by the result of a Freedom of Information question which was asked of the Department for Transport following this debate.

My Freedom of Information question to the Department for Transport and the Department’s answer.

On the 14^th March I asked a question under the Freedom of Information Act. The details can be seen at http://tinyurl.com/c843fyr.

The question was:- What comparative studies have been carried out to evaluate the effect of the rule of 'strict liability' applied to road accidents involving trucks/cars/motorcycles/cycles/pedestrians, in European countries with traffic situations comparable to our own?

The reply came on 2nd April: “No comparative studies have been carried out... However I can provide you with the following general advice which I hope you will find useful.”... There followed legal arguments that essentially defined the whole issue as a matter that depended on the law rather than any evidence of efficacy. However, unusually, no effort has been made to discover what the international situation is in practical terms, as against a decision based on legal criteria only.

Recommendation

The UK is out of step with the Continent. No effort has been made to judge the effectiveness of the Continental practice. The government should study European practice with a less legalistic attitude to determine whether it is a better system.

James S Wishart, BA, CEng, MICE.

01604 634417.