A Continental concept.
Could it ever happen here?
CityCyclingEdinburgh Forum » Debate!
Strict Liability
(20 posts)-
Posted 15 years ago #
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Great idea, but the motoring lobby is far too powerful here for it ever to happen.
Posted 15 years ago # -
In some circumstances we already have this de-facto: for example, if you hit the car in front, whatever it's doing, you're liable *in practice* (although there is no statute on the books saying so explicitly).
I'm not a lawyer, but I can only assume that this applies equally to 'overtaking car hits cyclist' accidents, as again this is a rear shunt, just they've hit a bike instead of a car.
So in practice, would the effect of strict liability be mainly making it easier for people to claim (because they don't need to deal with insurers' dubious/delaying tactics) rather than giving them a case where before they had none?
I mean, if you get hit by a car, it's true that you need to "prove they were at fault" by suing them, but if they hit you from behind this follows automatically, in practice?
The other observation I would make is that, as it is a defence under strict liability for the other person to be wholly at fault, presumably it is a partial defence if they are partially at fault, so we would still have to go through the victim-blaming 'contributory negligence' merry-go-round, just starting at the opposite conclusion.
(Don't get me wrong, I'm all for strict liability. But as it's very unlikely we'll ever see it, is the status-quo actually that bad?)
Posted 15 years ago # -
Given this topic is doing the rounds again, I attempted to get my head round what was actually being proposed.
If anyone has a spare ten minutes to proofread this I'd be grateful.
http://www.darkerside.org/2013/04/strict-liability-an-idiots-guide/
I'm debating whether I need to do more to tie in the example to the real world. Spell check also doesn't work on the work machine, so I'll catch any I've missed when I get home...
Posted 12 years ago # -
Third paragraph has different spelling for guilty:
‘innocent until proven guitly’Don't know about the analogy though, you've got an animal with a mind of its own as well as yours. I'm thinking why would someone be willing to walk around in a whole load of tigers.
You need to use something that is in direct control, well in theory, by whoever.Posted 12 years ago # -
I like the analogy.
I don't think there's an "h" in Winney the Pooh...Posted 12 years ago # -
I used a halberd for a blog post along similar lines.
Posted 12 years ago # -
Spelling mistakes corrected - ta!
Posted 12 years ago # -
I don't think there's an "h" in Winney the Pooh...
There isn't a "y" either; it's Winnie-the-Pooh if you prefer pre-Disney naming, or Winnie the Pooh if you like a made-for-TV smiling bear wearing a ridiculous red t-shirt.
Winnie (short for Winnipeg) was actually a black bear at London Zoo, and Pooh was a swan of no particular origin.
Posted 12 years ago # -
This only affects civil law rather than criminal...
This sentence is ambiguous. Does "this only affects" refer to the phrase or to strict liability itself?
Posted 12 years ago # -
As WC points out in this thread: http://citycyclingedinburgh.info/bbpress/topic.php?id=10000 strict liability does not necessarily affect the proportion of the payout.
So I would remove any references to 'proportions' to avoid confusing the reader further.
Clearly there are already a lot of misunderstandings and misinformation out there on strict liability. Some of that misinformation is no doubt started deliberately by opponents of SL, to bamboozle Joseph public into opposing it also.
Posted 12 years ago # -
Updated poor Pooh's name again. I've gone for the pre-Disney version, as my spidey senses detected a slight preference from Arellcat...
Eddie; true. I've reworded as follows:
"PS: if the phrase 'innocent until proven guilty' is lurking in your mind at the moment, banish it. This Cycle Law Scotland proposal would only affect civil law rather than criminal, so the concept doesn't really hold. We're interested in two people putting forward conflicting views, rather than the state attempting to prove that someone has crossed a certain boundary."
Legal stuff hurts my head. I'm much more of a numbers chap...
Posted 12 years ago # -
"
bike for Victory (@bike4V)
22/06/2013 08:57
A map of which European nations DON'T have Strict Liability on their roads. Scots, please follow @roadshare.http://pic.twitter.com/SRAqN9kPq3
"
Posted 12 years ago # -
"
He also restated his support for a "strict liability", putting the burden on drivers to prove they were not at fault in collisions with bikes.
"
Frank McAveety - Glasgow's cycling tsar
Posted 11 years ago # -
See, I think there are issues with that. I understand the argument that it's about placing a duty of care on those with most ability to do harm, and that it doesn't automatically mean punishment for drivers, and that it's about civil rather than criminal matters, but even so: if this is a good idea, there's a problem with the communication of it. I think it's at odds with most folks' sense of fairness. Ultimately if we're going to have better facilities for cycling I think ordinary drivers have to be 'on side' - is this the best way to go about that?
Posted 11 years ago # -
Definitely needs communicated better.
At the moment the message heard by the public is: "Drivers will always be at fault when they hit a cyclist and will go to prison."
The proper message is obviously: "The person most likely to cause harm (drivers over cyclists; cyclists over pedestrians) will have to prove they were not at fault in an incident. If they do then they will not be liable for such incident, or have their liability reduced accordingly. However, if not then they will be subject to civil reparation for the damage/harm caused."
Problem is, the second message isn't as catchy, or as easy to distil into a headline.
Posted 11 years ago # -
Strict liability in this context applies to civil law only. Therefore any notions of "innocent before proven guilty" are irrelevant, because it is a matter of civil liability, not criminal, and the standard of proof is "on the balance of probabilities" not "beyond reasonable doubt".
We already have strict liability in a number of areas of Scots law, including motoring offences (albeit criminal) and some areas of occupiers liability, Health and Safety at Work and liability for animals under the Animals Act (if your dog injures someone, you as owner are liable no matter what).
In the law of delict, the general order of things is that a duty of care is owed, and if that duty of care is breached (taking into account standard of care) and the breach of the duty of care caused the harm complained of, liability will generally be proven, unless a defence applies.
In strict liability, the normal burden of proof is transferred from the Pursuer to the Defender, as the Defender would have to prove that they were not liable.
The real change would be if all accidents involving cyclists would be made a criminal offence, as in The Netherlands. I don't think strict liability in civil law is that much of a drastic change actually, as in practice most of these types of claims are pursued as standard form insurance claims anyway almost as if strict liability was in place.
Posted 11 years ago # -
I think of it a bit like the white line down the middle of the road. If you are on the wrong side of the line and hit someone it will be assumed you are in the wrong vs someone on the right side of the line. However, you can argue why you weren't at fault.
It is a strong assumption rather than categoric.
This viewpoint makes me think (as a car driver) that it is onerous on me but not unfairly so..
Posted 11 years ago # -
There are a number of motorists out there who seriously think the onus should be on the cyclists and pedestrians to keep out of their way (basically stay off the roads). Bringing in a law of Strict Liability would help to put an end to this culture of bullying on the roads.
Here is another view point from today's Herald
Posted 11 years ago # -
I wouldn't rely too heavily on the Health and Safety Law analogy - Westminster is in the process of watering down strict liability in H&S Law. Strict Liability
Though the comparison between an employer and a motorist is not direct the thought process can be seen by the measures going further than Lofstedt suggested.
Posted 11 years ago #
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