Strict Liability – an idiot’s guide

There’s been an awful lot of gumph printed recently about Cycle Law Scotland’s campaign to introduce a system of ‘strict liability’ north of the border. This topic tends to circulate around every few years, with various publications immediately leaping onto the bandwagon to gain extra publicity by writing nonsense to inflame the masses.

It’s a moderately confusing subject which Cycle Law Scotland don’t explain particularly well in my mind, so I did some digging to try and get my head around what they’re proposing. For the benefit of any others similarly confused, I hereby present the Idiot’s Guide To Strict Liability. Most of it is summarised from a useful article by the Cambridge Cycling Campaign, but the tiger example is all me.

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.

Let’s start afresh and talk about something slightly different, but which is crucial to the whole thing – operating risk.

An example

I need to do the weekly shop. The local Morrisons (other options are available) is four miles away, so I contemplate two possible modes of transportation:

  1. I could walk
  2. I could ride Tiddles the Tiger

Tiddles the Tiger is an unusual option I’ll admit, but he’s well trained and can carry both me and a sizeable amount of groceries. Ever mindful of the safety of others, he also wears a sign around his neck saying ‘Do not touch the tiger’. Being slightly rushed, I go for Tiddles.

Here's what Tiddles might look like. He's clearly not got his riding harness on here.
Here’s what Tiddles might look like. He’s clearly not got his riding harness on here.

I’m proceeding down the street on the tiger at a sensible pace, keeping to the highway code and all that. Whilst stopped at the lights, a small child approaches, who we’ll call Jimmy. Now Jimmy is a fan of Winnie-the-Pooh, and sees in front of him a life size Tigger! What fun!

Wee Jimmy breaks free of his mother’s grasp, sprints towards Tiddles and, despite my desparate shouts, pats the tiger. When the dust clears, Jimmy finds himself only able to count to five, and Tiddles is merrily chomping down his arm.

Jimmy’s mum is somewhat miffed with this outcome, and we eventually find ourselves in a civil case where she’s attempting to claim some money for the trauma caused. It’s already been decided that I don’t have a criminal case to answer – my tiger handling skills were never in question.

This case could go two ways.

Without operating risk

I put forward the view that I have done nothing wrong. I was stationary at some traffic lights, and couldn’t have done any more to highlight to others the risks involved in touching the tiger. Therefore I should pay no compensation. Conveniently, the entire jury is drawn from a local circus, and to a man are well aware of the care needed around tigers. They side with me, and I leave with my insurer’s collective wallets intact.

With operating risk

I argue the same as above, and the jury nod in agreement. However, the legal chap working for Jimmy’s mum drops the Big Book of Risk on the table. Hang on, he says. You chose to ride a tiger! It doesn’t matter that you didn’t technically make a mistake, in selecting Tiddles as your mode of transportation for that journey, you placed on the public streets half a tonne of carnivore that wouldn’t otherwise have been there. Your personal choice for convenience upped the stakes for every other player in the great game of life, certainly way beyond the level Jimmy and his mum would be comfortable with.

In effect, your liability in this situation is determined not just by whether you made a mistake, but also by how much you choose to penalise others for their mistakes. And it was a choice – after all, if I had chosen to walk instead (possibly wearing a stripy tiger outfit), Jimmy may still have run at me, but no injury would have occured.

The jury side with Jimmy’s mum, and I am ordered to pay 90% of the total costs claimed. My insurers cough up, and Jimmy get a new prosthetic arm. In black and orange stripes.

Strict liability

That is what strict liability is about. Not an erosion of some fundamental principle of guilty or not guilty, not an automatic cash cow for every cyclist on the road; simply a statement that if your search for convenience ups the stakes for everyone around you when you travel, you should expect your insurers to have to pay proportionately more for the priviledge. Your premiums will go up as a result.

In our modern society, we’ve lost sight of exactly how dangerous the roads are. An average hatchback at 30mph exceeds the momentum of a charging black rhino and huge lorries crush pedestrians and cyclists beneath their wheels on a weekly basis, and yet we accept this every day as completely normal. Rubbing salt into the wound, we then insist that the person inside the big metal box has the same civil vulnerability as the person walking across the road.

Bizarre.

As an additional note, I suspect you’d also see more cyclists choosing to take out 3rd party insurance as a result of operational risk being incorporated into civil law. £41 per year with CTC (£16 if you’re under 18) gets you £10m in third party liability cover should a pedestrian run out in front of you – worth having, in my opinion.

Bonus facts

Fact number one. The countries in red below are those in Europe who do not have some kind of reduced liability for vulnerable road users. Notice the elite legal company we’re in?

Map of Europe showing countries without strict liability
Borrowed from Scottish Cycle Law. Countries in red are those without reduced liability for vulnerable road users.

Fact two. We already have a couple of examples of strict liability in law across the UK, including:

  • All speeding offences (if you speed, you’re guilty, even if you didn’t realise you were speeding)
  • Sexual offences with a minor (believing that a 15 year old was 16 doesn’t reduce the guilt)
  • Vast swathes of tort law related to safety in the workplace
  • Possession of weapons and drugs

Strict liability isn’t some hippy ideal – it’s an established element of UK law already, and we’re just a bit behind the rest of the Western World when it comes to applying it to protect vulnerable road users.

 

PS: if you’ll forgive me for a somewhat prideful conclusion, this article was cited by Chris Boardman as both “great” and “funny”. My job here is done…

7 thoughts on “Strict Liability – an idiot’s guide

  • 2015-05-21 at 11:57
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    This is an excellent guide to Strict Liability. It’s much more than an idiot’s guide and should be called the essential guide to Strict Liability. I thought I knew much more about this than I apparently did so thank you.

  • 2015-05-21 at 13:16
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    I don’t think any of the 27 EU countries which have strict liability require cyclists to have third party insurance – you might just as well say that pedestrians should also be covered in case they cause an accident between two cars, and many dog-owners would regard it is essential that they have third party cover for their pet in case it slips its lead, runs in front of a car and causes it to crash into a lamppost.

    I would however agree that third party cover is probably a sensible precaution for any cyclist to take, but it doesn’t need to cost £41 (which is of course the full subscription for CTC, including all the other member benefits on offer). London Cycling Campaign offers it as a standalone product to non-members for £9.50pa, or of course free with a full subscription. http://lcc.org.uk/pages/third-party-liability-insurance

    And before you rush out to buy TP cover, you should take a look at your home insurance policy, if you have one. Looking at mine, I see I have cover for third party risks outside the home, for substantially all risks excluding the operation of motorised vehicles designed primarily for highway use – in other words, if I run someone over with my lawnmower, I am covered, with my car, I am not. (My bike is also covered) It seems to be standard clause as I found it in the standard policy wording for Direct Line home insurance which you can read on their website.

    So, in all probability, three quarters or more of the population are already covered.

  • 2015-05-21 at 14:13
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    A couple of thoughts.

    I think it would also be useful to make the distinction between “strict” and “presumed” liability, and to include the example of a driver rear-ending another vehicle – the driver behind is generally presumed to be liable for insurance purposes.

    While I am completely in a agreement that presumed liability in favour of the more vulnerable party – pedestrian or cyclist – should be an obvious piece of legislation to introduce (as the rest of Europe already has), I would devote a little time to the wider implications for making cycling safer therefore and more popular.

    Generally speaking strict/presumed liability would go some way to clarifying the prioritisation of liveable cities – active sustainable modes of transport – and undermining the driver’s misplaced sense of entitlement, but it does little to make cycling actually feel any safer. Most drivers never anticipate being in a collision, and liability is little solace when you’re lying broken in a ditch, or when that seems likely (or even possible).

    Basically some people think that strict liability is the answer to reclaiming the roads and making cycling genuinely popular again, but I would heed the advice on David Hembrow’s blog: http://www.aviewfromthecyclepath.com/2012/01/campaign-for-sustainable-safety-not.html

  • 2015-10-21 at 02:17
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    UK Traffic law has, since 1903, had all the measures in place to deliver the position you so neatly illustrated with the Tiger example, the law-makers recognised that the damage and injury that even the presence of a motor vehicle can inflict had a major issue for civil liability.

    Because of this we have, in its current form, Section 170 of the Road Traffic Act 1988 which requires the driver of a motor vehicle causing damage or injury by impact or simply presence (forcing another road user to crash for example) to provide the details needed to make a civil claim to any person reasonably requiring them.

    This is also the reason that motor vehicles require substantial insurance cover. You can drive without insurance BUT in place of an insurance policy you must have an insurance bond of readily available cash deposited to cover that liability – last I checked it was around £0.5m – most people buy insurance cover. Pedestrians and cyclists still have the same liabilities but the law realised that the extent of damage and claims arising had been covered by the individuals for many years before the Motor Car Act was considered, and now for most cyclists and pedestrians going about on the streets their household policy provides third party cover. Only when cyclists are joining in a competitive event would they need additional insurance cover – no different to the position for drivers taking part in motor sports – the normal policies are then void.

  • 2015-11-09 at 17:47
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    Actually in the case of Tiddles the Tiger, as a domestic animal, under current UK law (Animals Act 1971, Animals (Scotland) Act 1987) the owner is strictly liability should Tiddles harm a 3rd party. No if’s, no but’s, the law is clear the owner is liable to pay compensation to the harmed 3rd party.

    Note there is no legal requirement for animal owners to have insurance. However, drivers operating dangerous machinery are legally required to have public liability (3rd party) insurance, the problem is that the insurance companies go to great lengths to avoid paying out, even though this litigation increases the costs the insurance companies (they simply pass these extra costs on to everyone taking out an insurance policy).

  • 2015-11-15 at 21:33
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    Interesting point about the domestic animal strict liability. I shall, of course, claim that the example was deliberately set up to include this as a Easter Egg for the advanced reader :)

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