I have just come across this excellent contribution to the 'strict liability' debate. Martin Caton MP speaking in the Commons on 19th July 2011 at 6.13pm. It can be found on the 'OurSociety' site
here. (Hansard source HC Deb, 19 July 2011, c893)
According
to a European comparative study of children’s exposure to accidents
conducted in 2005, the fatality rate for child cyclists in the most
vulnerable group—10 to 14-year-olds—was found to be around five times
worse in the
UK than in
the Netherlands and Sweden. Every year about 50 cyclists are killed in
collisions with cars. Many more are badly injured.
For
health and environmental reasons, there is a consensus across the House
and the country that we need to encourage more people, including
children, to take up cycling. It is incumbent on us, therefore, to
consider how we can improve the cyclist safety record in this country,
hopefully bringing it into line with other European countries. A good
starting point is to look at the difference between our country and
countries such as Sweden and the Netherlands. I am sure there are
several differences, but one thing stands out. Here in the UK, if a
cyclist or pedestrian is injured or killed in an accident with a motor
vehicle, it is for the victim or the victim’s family to prove that the
driver of the motor vehicle was negligent.
In Europe, we share that approach only with Ireland, Malta and Cyprus.
In
every other European country, stricter liability applies for insurance
purposes. Under stricter liability, which reverses the burden-of-proof
balance, it is for the driver to prove that the cyclist or pedestrian
was negligent and therefore caused or contributed to the accident. As
Lord Denning said, as long ago as 1982:
“There
should be liability without proof of fault. To require an injured
person to prove fault results in the gravest injustice to many innocent
persons who have not the wherewithal to prove it.”
I
believe that adopting stricter liability in this country for road
accidents would be an important step forward for justice and, more
importantly, would save considerable numbers of vulnerable people from
injury and even death.
A report produced for the
Department for Transport
in 2004, “Children’s traffic safety: international lessons for the UK”,
attributed at least some of the differences in the safety record here,
as compared with other European countries, to the law of stricter
liability in those countries. The evidence points to the fact that
stricter liability has the psychological effect of making drivers more
aware of the vulnerability of children, cyclists and pedestrians. That
is what the 2004 study concluded and it is also the conclusion of many
cyclists who have experience of cycling in this country and on the
continent. My constituent,
David Naylor
of the Swansea Wheelwrights cycling group, who first raised this issue
with me, is one such person. He wrote informing me that he has toured in
the UK, the Netherlands, Denmark, Germany, Austria and Switzerland. He
went on to say:
“This has made me aware of how
much safer one is over there. Motorists treat cyclists and pedestrians
with respect. The better infrastructure helps but my judgement is that
the existence of stricter liability is more important”.
When I took that up with the Department for Transport earlier this year, the
Minister
replied: “Even if there were some benefit for road safety such benefit
would need to be weighed against the disbenefit which might result from
overturning the well established and effective law that applies in civil
liability.” Personally, I think that road safety should trump legal
tradition every time.
We would not be
revolutionising British law if we applied stricter liability in these
cases because it is already part of our civil law on workplace health
and safety incidents and on product liability. It is even in the field
of motor insurance already, as it applies to car passengers. Extending
it to protect cyclists and pedestrians makes sense and I urge the
Government to give serious consideration to making the necessary changes
even if the insurance industry does not happen to like the idea.
