CityCyclingEdinburgh Forum » Cycling News

Presumed liability in the Grauniad

(84 posts)
  • Started 9 years ago by crowriver
  • Latest reply from Darkerside

  1. neddie
    Member

    My understanding is that 'presumed liability' and 'strict liability' are the same thing.

    What have I missed?

    Posted 9 years ago #
  2. ih
    Member

    Strict liability is where you don't have to have a guilty intent or knowledge. If you did it, you are bang to rights. Example, a speeding offence; you might not have intended to break the speed limit, nor have been aware that you were breaking it, but if you did, you are guilty.

    Presumed liability (and remember in the car/bike/pedestrian crash context this isn't criminal law, but civil law to get redress in case of injury) is where one party is presumed to have been responsible but if they can show on the balance of probabilities that they weren't responsible they will not be held liable for damages, or more likely, the injured party will be held to be partly responsible and damages will therefore be reduced. As I said in an earlier post though, in the case of a cyclist crashing with a pedestrian, the chances of the cyclist getting off completely are slim, because they would have to show that they couldn't have foreseen the pedestrian behaviour and that behaviour gave the cyclist no possibility of avoiding the crash.

    Posted 9 years ago #
  3. "So what actually is the point of presumed liability if not to help protect the person who is injured?"

    Pretty much just that it might make people take a bit more care around those who are more vulnerable, because the onus is on them to prove they didn't do anything wrong (whereas previously they could sit back and wait to see if the injured party could prove the injurer did something wrong). Like I say, it's subtle, but could have an impact (if you'll pardon the pun).

    Posted 9 years ago #
  4. sallyhinch
    Member

    Nice example from Germany of strict liability in practice here

    Whether it changes drivers' behaviour or not, I don't know (you'd think they'd want to avoid injuring children just on principle) but it does prevent a lot of stress in the aftermath.

    Posted 9 years ago #
  5. ih
    Member

    Yes, but can we all say presumed please, not strict.

    There is a difference, and it's an important difference.

    Posted 9 years ago #
  6. Actually, even with 'strict' liability it's not an absolute, and can be put to one side if fault of the injured party can be shown (and in the Netherlands the liability is known as 'strict' - the following quote is from Wiki, but remembering back to my Delict classes (not Tort in Scotland) I think it's pretty accurate):

    "A form of strict liability has been supported in law in the Netherlands since the early 1990s for bicycle-motor vehicle accidents.[3] In a nutshell, this means that, in a collision between a car and a cyclist, the driver is deemed to be liable to pay damages and his insurer (n.b. motor vehicle insurance is mandatory in the Netherlands, while cyclist insurance is not) must pay the full damages, as long as 1) the collision was unintentional (i.e. neither party, motorist or cyclist, intentionally crashed into the other), and 2) the cyclist was not in error in some way.[3] Even if cyclist was in error, as long as the collision was still unintentional, the motorist's insurance must still pay half of the damages, though this doesn't apply if the cyclist is under 14 years of age, in which case the motorist must pay full damages for unintentional accidents with minors.[3] If it can be proved that a cyclist intended to collide with the car, then the cyclist must pay the damages (or his parents in the case of a minor.).[3]"

    That said, I used to get annoyed about the difference between 'priority' and 'right of way' - only seems right that if we're going to lambast motorists for using incorrect terms like 'road tax', we should also seek to get terms correct. Whether the plan for the UK is presumed or strict really depends on how it is implemented.

    Posted 9 years ago #
  7. dougal
    Member

    While it's useful to know the difference between priority and right of way while reading the Highway Code it's largely immaterial which one is used when you're talking about who should turn first at a junction etc in day-to-day life. It's clear what is meant from context. And when you get lambasted for "not paying road tax" it's also clear what is meant: that motorists who say this believe they have ownership of the road because they pay extra. If no-one used this line of reasoning then calling VED 'road tax' would not be an issue.

    As for strict/presumed liability it seems both are used freely and it's hard to tell whether the speaker makes the choice based on understanding the legal implications or whether they just want to add variety to their prose.

    Posted 9 years ago #
  8. Ed1
    Member

    I think presumed liability in this context, is just for civil compensation claims, rather than criminal liability.

    The presumption is the car drivers liable for insurance purposes, but criminal liability has no such presumption.

    Posted 9 years ago #
  9. Luath
    Member

    I can see how presumed liability might work on roads where there is legislation governing how users should act. But even here cyclists would have to adopt a much more cautious approach that motor traffic because peds fear cars and so are much less likely to walk in front of them.

    But the prospect of presumed liability off roads, where anything goes and behaviour codes are advisory at best – I think it’s bad idea. I don’t see that careful cycling would offer any protection against liability for hitting a ped on a shared use path. Sure, the slower you go, the less damage you’ll cause but it’s not going to eliminate collisions altogether. Some pedestrians are oblivious to other users on shared paths in to the way they behave near motor vehicles because the consequences are much worse. The situation on roads is totally different – for starters if a cyclist moves into the path of a vehicle without looking they’re not likely to be around to make a civil claim.

    As for (uncontrolled) dogs – surely they rank somewhere just below motor traffic in the liability hierarchy?

    Posted 9 years ago #
  10. acsimpson
    Member

    Does anyone know how the hierarchy would be decided. If it's size then as someone has already mentioned some pedestrians would rank below cyclists while if it's speed then cars would be above HGVs, (and some dogs above bikes).

    Assuming that dogs are seen as property (is that not what they are). Then allowing your dog to run wild would hopefully be recognised by the court as a significant factor in any collision. Of course if the "wild" dog caused you to crash into the dog's owner it may be very difficult to prove that it wasn't being kept close to heel.

    I hope that when this is implemented curious anomalies like the East Craigs' path network will be formally changed to permit cycling.

    Posted 9 years ago #
  11. Tulyar
    Member

    @ih is another confused person this is liability - a civil issue concerning loss or damage, not guilt a criminal issue relating to intentional or careless action.

    Motoring law has, since the Motor Car Act in 1903, and section 22 of the Road Traffic Act 1930 (now section 170 RTA 1988) actually had the facility to deal with the presumption of liability through introducing the presence of a motor car which is capable of doing a substantial amount of damage, into a collision or similar incident.

    Because of this vastly increased level of damage the 1903 act and subsequent legislation also went to great lengths to ensure that any person taking a motor vehicles (and - I'll need to check this) a light road locomotive and pre 1903 Motor Car Act vehicles covered by preceding legislation was able to pay-up in the event of causing injury or loss from the presence (note that - the presence) of their motor car when an incident occurs. In fact the first prosecution for the early Section 170 offence and liability for damage did not involve the driver colliding with another road user, but did cause 2 deaths, for which he was prosecuted (concerning the criminal offence) and sued for the civil liability.

    It is actually possible to drive a vehicle without third party insurance BUT you will need to have a pretty substantial reserve of secured funds to self-insure - I think the required figure is now around £10 million.

    The basic tenets of presumed liability are established in almost every other aspect of our daily lives, most notably through the Health & Safety at Work Act, and the 'Duty of Care' where anyone using equipment or processes that could be harmful has to make sure they prevent that harm, and as a result will need to be covered for any civil liability arising from an incident - EVEN IF THE AFFECTED PARTY SUCCESSFULLY BECOMES THE WINNER OF A DARWIN AWARD - you go around chopping down trees, shooting game etc. and someone gets hurt you are liable nem con for at least some of the costs.

    Presumed liability actually saves everyone money and time, and for any injured party it gets at least a basic settlement agreed without the pain & distress of a threatened court battle which generally never happens, once the solicitors break the impasse on who pays how much at the start. The initial payment may be changed in the light later detailed negotiation, but a principle to pay say 50% of a calculated amount quickly and without prejudice, reflecting the position on that duty of care is what is being argued for.

    Posted 8 years ago #
  12. Tulyar
    Member

    @acsimpson - basic mechanics - a 32T truck at 40mph needs to dump 5.5 Megajoules of energy to stop KE= 0.5 x M x V x V and that leaps up to around 9.5 Megajoules at 50mph. Stopping abruptly - in say 1 second for ease of calculation and at 40mph you need to do something with 5.5 MW of power. That is a lot of bending and breaking or heat-about 2m fan heaters. .

    Posted 8 years ago #
  13. ih
    Member

    Hi @Tulyar. Late night for both of us. Are you saying I'm confused about civil and criminal issues. I've said in all my posts that this is a civil issue, not criminal. I'm not confused.

    Posted 8 years ago #
  14. Schemieradge
    Member

    "

    Yes, but can we all say presumed please, not strict.
    "

    Yes, but I thought the Roadshare proposals suggested strict liability be used in the instance of children or over 70's being involved.
    Is that no longer the case? (I struggled to find mention of it on their website - sure it used to be there)

    Posted 8 years ago #
  15. Dave
    Member

    I didn't see an answer to Min's question on who comes off worst in ped-bike collisions. Probably nobody bothers to record this in case the answer is politically awkward?

    I've hit three peds since moving to Edinburgh that I can remember. All were walking in the same direction I was cycling and stepped off the kerb, but I only had a headcam on for the last one, so it's probably a good thing that presumed liability didn't exist back then, or the no-win no-fee brigade might have forced us to sell the house.

    (Interestingly, all three times the pedestrian came off best and was suitably apologetic. The first time I broke my elbow, the next time I hit the deck in a general sort of violent way, and the last time I was bounced out into the road and collided with a car. I posted footage of that here. However, the plural of anecdote != data and clearly you can sometimes get extensive damage if you are hit by a bike.)

    I guess headcams will become a must-have when you need to conclusively prove that you shouldn't have to sell your house, and vice-versa, arguing that the footage isn't admissible for whatever reason will become the raison d'être of our learned friends acting for the claimant?

    Posted 8 years ago #
  16. steveo
    Member

    Or we all need to get increasingly expensive third party insurance to help counter the ambulance chasers.

    Posted 8 years ago #
  17. Morningsider
    Member

    I think it's worth remembering that the UK is odd in not having some form of strict/presumed liability for traffic collisions. Many European countries with far higher rates of cycling have this. There is no evidence that cyclists are being sued in great numbers by pedestrians in The Netherlands or Denmark, where pedestrian/cyclist collisions must be far more common than in the UK. Also, the vast majority of cyclists in these countries don't have insurance.

    I don't think there is any reason to assume Scotland would be any different to these countries.

    Posted 8 years ago #
  18. Dave
    Member

    Actually that would be quite a useful data set - does house insurance cover cycling collisions over there, and if so what is the claims landscape like?

    I'm guessing this info is vaguely accessible as we recently discovered that one postcode in western Edinburgh has the highest rate of housebreaking anywhere, and so on...

    I think what I am trying to say is, "citation needed"?

    Posted 8 years ago #
  19. steveo
    Member

    Decent segregation for pedestrians as well as drivers must help in The Netherlands and Denmark; I can't imagine the armada of bikes in use in the Netherlands trying to use the Barnton path or the canal or at least if they did there would be far fewer dogs on them.

    Also whats the culture like there, have they been swamped with ambulance chasers and adverts telling them they're entitled to money regardless. New Zeland waived the right to sue for damages and instead set up a national Accident Compensation Scheme to pay for damages without involving (as many) lawyers which has a massive impact on insurance rates and has helped curb the claim culture we've developed here.

    Posted 8 years ago #
  20. Greenroofer
    Member

    I'm sure I've said this before at some point, but a close reading of my home insurance policy seems to imply that I have third-party liability cover for anything I do anywhere (pretty much) except if it involves driving a car.

    Posted 8 years ago #
  21. neddie
    Member

    The Accident Compensation Scheme in New Zealand also meant that 3rd party insurance was not required and therefore not prohibitively expensive for 15 year old boys driving muscle/super cars.

    This meant there was a high occurrence of 15 year olds wrapping their 3 litre Toyota Supras around lampposts.

    Often these were well-off Asian students who had gone to NZ to study...

    Posted 8 years ago #
  22. Morningsider
    Member

    Dave - I am happy to trust the word of a friend, who worked as a lawyer in The Hague for several years, on this matter. I can't provide a citation, but its good enough for me.

    Posted 8 years ago #
  23. steveo
    Member

    Which is countered by a very restrictive licence scheme where new drivers can't be on their own or with their mates after a certain time or drive a decent sized car for a while. Still not perfect their accident rate is appalling.

    No system is perfect but I'd take ACC over ambulance chasers...

    Posted 8 years ago #
  24. Schemieradge
    Member

    "And if you look at countries where similar measures are already in place, there’s far less litigation, which means that drivers pay lower insurance premiums."

    Posted 8 years ago #
  25. Dave
    Member

    It seems hard to reconcile, doesn't it? It simultaneously makes it easier for people to get a pay out, yet reduces the amount insurance companies actually pay out (lowering premiums). Very curious.

    "I am happy to trust the word of a friend, who worked as a lawyer in The Hague for several years, on this matter."

    Fair enough, just wondered if there was actually "no evidence that cyclists are being sued in great numbers" in terms of some data published somewhere.

    Posted 8 years ago #
  26. ih
    Member

    I've tried to see what the position is in Netherlands for cyclist/pedestrian collisions. Can't find anything. Does anyone know the cyclist/pedestrian crash civil law there? Maybe the liability question in these situations reverts to other laws rather than the 'strict liability' (I don't think they call it strict btw - even in Dutch) law governing collisions with motorised vehicles.

    Posted 8 years ago #
  27. UtrechtCyclist
    Member

    I'm pretty sure the Dutch liability laws that govern car/bike crashes also cover bike/peds.

    Most Dutch people (around 90% I think) have a general personal liability insurance which covers them for a wide range of liabilities unrelated to cycling, but also includes accidents when riding a bike. I had it in Holland and I seem to remember it costing around four euros a month.

    Posted 8 years ago #
  28. UtrechtCyclist
    Member

    "In the Netherlands, you are legally liable if someone suffers damage through an accident caused by you. Personal liability insurance (aansprakelijkheids-verzekering, AVP) covers almost all damage for which you, your child or your pet might be held liable, regardless of how the incident in question occurred. Damage caused by motor vehicles is not covered by the AVP."

    http://www.iamsterdam.com/en/local/official-matters/finance/insurance

    Posted 8 years ago #
  29. ih
    Member

    Ah. Thanks @Utrecht. So it looks like this 'strict liability' rule applies to motor vehicles only, but if damage is caused by others (dogs, cyclists, pedestrians etc) it's the AVP that covers the personal liability, or if you don't have AVP, you have to cover it yourself?

    Posted 8 years ago #
  30. Dave
    Member

    I seem to remember it costing around four euros a month.

    Seems pretty reasonable (although as soon as I typed that, I couldn't help thinking that for a family of four it would significantly exceed the cost of our fully comp car insurance).

    Presumably there must be some kind of no-claims style mechanism that stops you just paying €48 for the year and running over hundreds of helpless bystanders. And do teenagers have to consider giving up cycling as the insurance becomes super expensive? (Or as it presumably is, they just go uninsured)

    Posted 8 years ago #

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