Friday 16 August 2013

Strict liability and the cyclist

Back in the late ‘80s I knew a young woman who had been the victim of a road “accident”.  She had been hit by a car while crossing a zebra crossing in Islington.  By the time I met her she had made a full recovery in purely physical terms, but she had suffered brain injury.  The prognosis was that the damage would never entirely repair, but she could make a very substantial recovery, in time, with the right treatment and therapy.  At this stage, she was only in the early stages of that recovery and in many ways her condition was similar to someone who had suffered a mild stroke – slurring words, a bit shuffling, somewhat puzzled and confused expression.

I lost touch with her and her boyfriend so I don’t know how things turned out in the end, but at that time they were very concerned for her future.  In theory, she could obtain the therapy she needed on the NHS but then, as now, she could be in for a long wait.  Then, as now, she could accelerate the process by going private, but of course for that you need money.  They had entered a claim against the driver but then, as now, the progress of a civil damages action was slow and uncertain.  Quite conceivably, the NHS waiting list would be shorter than the delays in the claim and any litigation.

Why should this be?  Because under English (and indeed Scottish) civil law of “tort” (ie a civil wrong) it is necessary for the plaintiff to prove firstly that he or she has suffered damage, and secondly that this damage is due to the negligence or recklessness, ie the tort, of the respondent in the claim.  Unlike a criminal trial, it is not necessary to prove the case “beyond reasonable doubt” – the courts make a finding on the balance of probabilities which is clearly a lower hurdle.  However, the key point is that the respondent does not have to prove his “innocence”, rather the plaintiff has to prove (to a point) the respondent’s “guilt”.  (In those days, there was no contingent fee legal service available so the plaintiff’s starting point was:  how am I going to afford to bring a claim?  Sadly, it appears that we may be returning to those dark days when those without cash had no access to law.)

That raises a number of problems.  One obvious problem is that the necessity to cast blame naturally raises the temperature of the proceedings.  Few people will readily admit such gross errors. That is human nature, and if you have to couch things in terms of recklessness or negligence, hackles are bound to rise.  I well remember the feeling I had when once, sitting at the wheel of my car in stationary traffic outside Clonmel, County Tipperary, I was shunted from behind and struck the car in front, and then got a solicitor’s letter alleging whiplash injury to the occupants of the car in front “due to the reckless or negligence of said person (ie, me)”.  My firm’s company car insurance manager had to help me to calm down and accept this is only a game.  (The Irish Republic used to be notorious for dubious whiplash claims, and motor insurance premiums there reflected that.  I don’t know whether that is still the case).

Probably more significant however is that fundamental rule of car insurance companies when involved in an incident – Never Admit Anything.  The plaintiff has to make a case against the respondent, through his/her insurer, and the insurer will fight the claim tooth and nail.  It isn’t personal – like a New York wise guy whacking a gang rival they would probably apologise and say “it’s just business”.   Paying out claims reduces profits – not good!

So, how does almost every country in Europe resolve this problem, of the weak confronting the mighty to obtain fair compensation?  They have a law of “strict liability”, that’s how.  The terms vary from country to country, but in essence there is a presumption that the stronger party has a strict liability to the weaker one, regardless of who is to “blame” .  We mostly know of it applied to road accidents, but in many cases it extends to other fields such as medical negligence claims against doctors and hospitals.  It has a number of advantages:  it helps to secure swifter and more certain recompense for an injured party, and it avoids the need to play the blame game.  The respondent can shrug and say “it’s just how it works”.  As the liabilities in question are required by law, under pain of criminal prosecution, to be covered by insurance, the respondent need have no fear for his finances beyond the loss of some no-claims discount at his next renewal.  The assumption of this liability is estimated to add, if introduced here, about £50 to the average annual motor premium – that is barely half what the insurers say they have to charge simply to fund fraudulent whiplash claims.

The UK is one of only five countries in the EU which do not have some form of strict liability.  Three of the other four are Ireland, Malta and Cyprus – all nations founded on the UK system of common law instead of the standard continental system of (Napoleonic) Civil Law.  The fourth is Romania – hardly a shining example to uphold!

OK, enough of the preamble.  Strict liability is widely opposed in the UK.  Most of the opposition is from the “usual suspects” – motoring organisations, the insurance industry (which would have to pass on the cost to policyholders), elements of the press, mainly the right-wing end such as the Daily Mail who, I suspect, know which side their bread is buttered with regard to advertising revenues.

But stop, who is this, also (apparently) opposing strict liability?  Pro-cycling advocacy groups!  Yes!  Apparently they consider it a distraction, and a way for government to take a cop-out from addressing the real issues of danger facing cyclists, namely the mixing of small, slow, vulnerable road users with fast, heavy, dangerous ones, which can only be adequately fixed through proper measures to segregate the two where possible, and to calm the dangerous element where not.

Amen to that, I say.  I wholeheartedly agree that the UK must urgently move towards a northern European model of cycle infrastructure, probably following the Dutch model although we should also look at others such as the Danish approach.  But, when it comes to discussion of strict liability, I sometimes feel that campaigners are only seeing it through the spectrum of cycling.  This is exemplified by the post by “Freewheeler” – “what will not bring about mass cycling (No N) – Strict Liability”.  They are ignoring the implications for other road users – pedestrians, or indeed occupants of passenger cars who get into a smash with a cement truck, who would also be covered by strict liability. 

You could say that the physical measures advocated for cycling would greatly improve the safety of these people too.  I agree – and the Dutch approach to road design was never exclusively about cyclists, taking consideration for pedestrians, children, the elderly etc too.  It is also fair to say that, in this scheme of strict liability which would impose the same obligations on cyclists in their interaction with pedestrians, the risks pedestrians face from cyclists are negligible compared with what they face from motorists – in the decade ended 2007, according to statistics released to Parliament by then transport minister Jim Fitzpatrick, a pedestrian was two hundred and sixty three times as likely to be killed by a motor vehicle as by a cyclist, and one hundred and thirty times as likely to be seriously injured.

This, apparently, justifies cyclists not being required to have third party insurance.

Well, while the risk of suffering life-changing injury at the hands of a cyclist is indeed vanishingly small, what if you were one of that vanishingly small minority?  Your injuries might well require a six or even seven figure sum of compensation to enable you to live a satisfactory life with the consequences of those injuries.  The number of people who, without insurance, would have the resources to pay out on a claim or judgement of that scale must be very few indeed, especially as the courts will certainly not visit the sins of the cyclist on his/her family by grabbing their principal asset, often their home.  To say that cyclists should not have some form of insurance cover simply because it is unlikely that they will need it is a cop-out.  Most insurance is taken out despite a perception that it isn’t really necessary, but just in case.

Cycling groups will of course then say that forcing cyclists to have insurance (some, myself included, do, mainly through membership of the CTC, LCC or British Cycling) would be poor public policy because it would discourage people from taking up cycling.  The same is probably true about compulsory cycle helmets, licensing and one or two other measures favoured by UKIP.  Furthermore, it doesn’t address the position of child cyclists, who cannot personally be held liable for a civil claim under our system. 

I accept that argument, but I don’t think we can leave it at that.  There has to be another way.  There already exists a fund, which motor insurers are obliged to pay a levy to, which deals with compensation to victims of uninsured drivers, of whom there are estimated to be up to a million in the UK (I wonder how much that adds to the average motor premium???)  Perhaps a similar fund could be established to cover claims for injury caused by cyclists.  Or, “Schrödinger’s Cat” comments that he thinks the Dutch have a system whereby cyclists receive insurance through some form of social levy, rather like the state-sponsored compulsory health insurance policies which are used to fund the health systems in most mainland European nations.  Given that (as also pointed out by cycle campaigners) individuals could incur liabilities to compensate for injury in other capacities totally unrelated to cycling, for example as householders failing to deal with a trip hazard in their front yard, perhaps there is a case for a compulsory levy to cover insurance for all types of third party liability which are not covered by specific provisions such as road traffic law?