CityCyclingEdinburgh Forum » Debate!
Give Scottish cyclists a break, place assumption of guilt on drivers
(18 posts)-
Posted 12 years ago #
-
Oh no, I recognise that photograph! Run for cover!
I don't think I can read past the second paragraph, sorry.
Posted 12 years ago # -
It's not a bad article - though I've had to poibnt out in the comments, again, that this is a civil law matter and does not create a criminal presumption of guilt before proving innocence.
There are a few flippant comments. And yes, I noticed the photo too! (naughty boy, stealing pics).
Posted 12 years ago # -
One wee comment on the poll options above, since someone has voted for "Sort out the RLJ, ninja, headphone wearing cyclists first"
Again, this would have no effect on criminal cases, so we're only talking about civil law suits here. So if the driver could show that the cyclist who has launched the action had dangerously RLJ'd, been a ninja, or was wearign headphones (and the wearing of those headphones actually contributed to the incident) then that driver will not be liable.
It's a really subtle shift. Normally the cycling claimant has to prove the driver did something wrong; with strict liability the driver has to prove that he didn't.
Posted 12 years ago # -
Rather than seeking to automatically ascribe guilt, more realistic would be to highlight the relative capacities for harming others inherent in various forms of transport. Introduce a requirement that whatever legal entities are involved in the machinations following a collision are reminded of the unlikelihood of a cyclist having actively sought to end their journey under the wheels of a lorry or on the bonnet of a taxi? Forcibly remind those tasked with apportioning blame of the relative invulnerability (in collisions with cyclists or pedestrians) of the drivers the lorries and taxis? Stating something like "this may have reduced the driver's perception of the risk of a collision" would be forensically inadmissable without swathes of data to back it up but it's what some of us see every day when people heft their vehicles about as casually as if they're shouldering their way to the bar in a crowded pub.
Posted 12 years ago # -
Jeff kind of lost me when he started out with his sniggering confession that, broadly, he throws his bike into gaps between taxis, ignores red lights (although he sometimes shouts his own SMIDSY when he barrels through crossings) and takes what I would consider a cavalier approach to his visibility. As the starting point for arguing that we should presume the driver is always guilty it's not a very convincing one.
I'm not sure that his musings on Bryan Simons' behaviour or anyone else, adds anything nor am I convinced of the logic of his conclusion that it's not his or anyone else's complacency that leads to accidents, it's cars. Just cars. The sheer volume of them. Actually, as Dave and others have pointed out, its HGVs and taxis.
But what he means is to 'place the burden of responsibility on drivers' in the way that you might say to an older child, '...but she's only three and you're a much bigger boy. You need to take more care.' I'm not so sure that I want to be infantilised.
Posted 12 years ago # -
slight cat among pigeons,
first thing that police officers ask any lorry driver involved in rta is GENERALLY, was there anything that you could have done to avooid accident ?If the answer is yes,then due care and attention/dangerous driving, etc,you are heck ! Hgv are GENERALLY assumed to be guilty unless proved otherwise !I couldnt listen to call Kay yesterday, my bood was boiling !In industry, a forklift hits a pedestrian, the fork lift driver is instantly assumed to be at fault......legally !
scott.Posted 12 years ago # -
Which does rather beg the question "What if we treated the road as a workplace?", just as we do factories, warehouses, building sites, etc. Someone posted a link about applying H&S to the roads the other day, can't find it right now...
It seems that professional drivers are the problem as far as cycling fatalities are concerned.
Posted 12 years ago # -
But what he means is to 'place the burden of responsibility on drivers' in the way that you might say to an older child, '...but she's only three and you're a much bigger boy. You need to take more care.' I'm not so sure that I want to be infantilised.
I'm not sure that I follow this. To draw on splitshift's example above - suppose you were walking around B&Q and you were hit by a forklift truck.
If B&Q were a road, you'd get nothing unless you were prepared to take take B&Q to court and could prove through a legal judgement that you didn't contribute to the collision.
With a system of assumed liability, B&Q would have to pay out whenever its forklift drivers ran over people in the aisles unless they could demonstrate that the customer had contributed to it.
I don't see the latter as being infantilised; quite the reverse, it seems like the judgement of a mature society should be, when the overwhelming majority of people who are injured suffer as the result of driver error (what's the figure? 75, 85%?)
Defences would always be available - in a topical reference, perhaps the cyclist had no lights (which would probably be as good as an automatic defence). Even better, because far fewer people would need to drag their cases through the courts, court time would be freed up to really address the contentious issues.
All the win.
Posted 12 years ago # -
Occupier's Liability (and Vicarious Liability for actions of employees) are actually two of the areas where strict liability does exist.
In this case it would actually be possible to launch a civil action against the driver's employers (rather than the driver himself) to claim damages, relying on vicarious liability, thereby landing the employer with the burden of proving the driver did nothing wrong.
Posted 12 years ago # -
"The Health and Safety at Work etc Act 19742 requires you to ensure, so far as is reasonably practicable, the health and safety of all employees while at work. You also have a responsibility to ensure that others are not put at risk by your work-related driving activities. (Self-employed people have a similar responsibility to that of employers.)"
from
"Driving at work. Managing work-related road safety"
http://www.hse.gov.uk/pubns/indg382.pdfPosted 12 years ago # -
Posted 12 years ago #
-
@Dave said "I'm not sure that I follow this." I was responding to the broad structure of his argument which seems to me to say, 'regardless of the cyclist's behaviour (using his own examples of his own behaviour) we should just assume that the driver is at fault'. That seems to me, staying within his own argument, to make the cyclist like an infant who cannot reasonably be expected to understand or anticipate the consequences of his behaviour. On that basis, I would reject his whole argument even if there is a sentence or two that doesn't seem completely stupid.
I generally don't have a problem with the idea that the bigger vehicle should carry a heavier responsibility to ensure that they don't present a danger to other road users in general and more squashy ones in particular. But I like to see adults take responsibility for themselves too and not just try to offload that onto someone else just because they happen to be bigger.
Posted 12 years ago # -
Ah, I see. To be honest I didn't read much of the linked article because firstly, he sounds like he rides like a tit, and secondly, he seemed to be confusing civil and criminal law.
Posted 12 years ago # -
as I understand H+S, everyone has a duty of care to everyone else , as well as themselves , be carefull, whoever and whatever we are doing !
scottPosted 12 years ago # -
I'm willing to forgive his poor grasp of the law. His cycling, not so much.
Posted 12 years ago # -
@slowcoach, the problem with that document is that it basically says, as long as the company/self-employed trader carries out a risk assessment, then that's about it.
So when the HSE turn up after an HGV has crushed a cyclist to death, the employer says "Ah, but we carried out a risk assessment, here's a copy. Also our H&S policy regarding work related driving." So that's alright then.
If they did apply the rules of liability as they are construed for workplace premises then that would be different!
Posted 12 years ago # -
It is worth giving it another go, this was the out come of my last attempt. Since then I have found more about the way it works in NL, there is it only strict if the victim is below the age of 14 years. At 14 and over it there is a presumption the driver is liable unless the driver can show the cyclist was "reckless", in which cast the liability is 50/50. However, the Dutch say this is not a major factor in their roads being safer, infrastructure is far more important.
Posted 12 years ago #
Reply
You must log in to post.
posts
