Strict liability too “contentious”, says transport minister

04/01/2011 Advocacy

Norman Baker, the minister for cyclists and pedestrians, has ruled out a law change that could protect ‘vulnerable road users’ because bringing in ‘strict liability’ for those operating vehicles on roads – which is normal practice in much of Europe – would receive too much opposition.

In 2002, when harmonisation with a EU strict liability law was mooted, the mass media went into overdrive to kill off any such law change, which was seen to be “anti-motoring.”

In fact, strict liability is not “anti-motorist” it is a strong-should-bend-to-the-weak concept. In insurance claims strict liability apportions blame to a vehicle operator, not the victim of a collision. So, a driver who rams a cyclist is automatically deemed to be at fault unless the driver can prove the cyclist was negligent. And a cyclist who rams a pedestrian is automatically deemed to be at fault unless the cyclist can prove the pedestrian was negligent.

In a letter to a Labour MP, prompted by a well-referenced letter from a constituent of that MP, Norman Baker lists the many reasons why strict liability is such a good idea and how it appears to save lives in other European countries but then he says the studies he cited aren’t enough evidence to push for a law that would be “very contentious.”

Baker writes:

In road traffic personal injury cases in the UK, the burden of proof is on the victim to prove the other party is negligent. The injured party in a crash between a motor vehicle and a pedestrian or cyclist is most likely to be the vulnerable road user. Under strict liability, the burden of proof is reversed. Vulnerable victims, not drivers, are the ones assumed innocent with regard to causing their injuries. It is up to to the driver to prove the pedestrian or cyclists was negligent. Strict liability only applies to civil compensation and does not affect criminal prosecution.

The law often uses strict liability in situations where there is likely to be an imbalance in terms of responsibility and where there is an inherent danger. Strict liability is already in use in English law, including workplace health and safety incidents and product liability.

Many countries in Europe apply strict liability to vulnerable road victims, e.g. pedestrians, children and cyclists. To vary[ing] degrees, these are applied in Austria, Denmark, France, Germany, Italy Netherlands and Sweden.

The road safety argument for strict liability is that is has the psychological effect of making drivers more aware of the vulnerability of children, cyclists and pedestrians. In support of this argument, many of those countries with strict liability have much better cycle and pedestrian safety in terms of fatalities per billion kms walked/cycled. The fatality rate for the most vulnerable group of child cyclists (10-14 year old), which represent a group of road users who potentially would benefit most from strict liability, may be 5 times worse inUK than Netherlands and Sweden according to one European study. ANother report on child road safety attracted some of this difference to the law of strict liability.

However, there are also likely to be many other factors to explain these differences including the higher percentage of cyclists in those countries. Additionally, the evidence from the Think evaluation and other research suggest that driver behaviour change is more likely to be motivated by serious personal consequences, whether it be death or injury to themselves or others, or criminal punishments such as loss of their licence or imprisonment, than they are by any insurance issues. So the Department has focused on those approaches to behaviour change rather than insurance or liability.

Any change in the law is likely to be very contentious and it would be important to have strong evidence of a benefit to justify a change in the law.