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.

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?

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…

Thanks @WheelsOnTheBike for this great -and funny- guide to strict liability the map will be an eye opener for many http://t.co/pHkL42lFV2

— Chris Boardman (@Chris_Boardman) May 21, 2015