by Dave Anderson
January 18, 2013
The Case For Presumed Liability
First published on www.stewartpratt.com
Presumed liability (and here’s a good précis of what it is and what it is not) is – although already used in other countries – a reasonably contentious subject, mainly because the British are, in spite of what the front page content of the red-tops would suggest, very keen on rules and the proving of guilt. (Though – see the previous link – presumed liability is not really about guilt.)
THE STARTING POINT
Some years ago, I took the very British position of being against presumed liability. I view scientific process and scepticism as hugely important, so presumption is something that seems abhorrent in any process, let alone a legal one.
However, scientific process and scepticism means that with new evidence one must reasses one’s theories, and much recent evidence has shown quite clearly that the legal process as it stands is flawed to the point where I maintain that it is simply not fit for purpose when it comes to preventing people from the hazards of human-controlled vehicles (a cumbersome phrase, but I use it quite deliberately: I think if we sit and watch the legislation that will come out surrounding automated cars, such as those being developed by Google, we should end up asking ourselves why the same things were not and are not applied to human-controlled cars).
The curent case that highlights the issue is, as reported by the Solihull News, that of Tom Ridgway, who was struck by a taxi driven by Ichhapal Bhamra. Either at the point of impact or during the subsequent 90-metre passage of the vehicle, which crashed into road signs and a tree with Ridgway on its bonnet, the cyclist sustained fatal injuries and passed away shortly afterwards. Bhamra was charged with driving without due care and attention (not dangerous driving) and pleaded guilty; the sentence was a £35 fine (plus costs and victim surcharge). Bhamra, to some credit, is reported to have voluntarily handed back his taxi licence (no mention of his driving licence) and is understandably suffering from post-traumatic stress disorder.
Now, horrific as it is, there is nothing (in the context of fatal collisions with cyclists) particularly out of the ordinary about the events themselves. The curious aspect of this case is how it was apprently handled by the CPS. Anyone who has any interest in both cycling and the law should be paying attention to Martin Porter, who has brought that point into question himself:
“Apparently the CPS took the view that they could not prove that Bhamra’s carelessness had caused the original impact but merely that continuing on for a distance of 90 metres with Mr Ridgway on his bonnet, colliding with signs and eventually a tree was careless driving. They also decided that they could not prove that this ‘proveable’ carelessness, as distinct from the original collision, had caused Mr Ridgway’s death.”
This all hinges on provability. The law’s view is clearly thus: Driving along with someone on your bonnet and crashing into inanimate street furniture is demonstrably, and thus provably, careless; a collision between a cyclist and a car is not. (As a side note, I think a fairly compelling case could made for the suggestion that even if a cyclist does something stupid and a collision occurs, the driver could be argued to be careless – though not necessarily dangerous – by failing to account for it and leave space, which is precisely why we have rule 162 of the Highway Code, and which I think is an arument quite closely related to the point of presumed liability.)
Moreover, the law again displays its curious distinction between a careless action that causes death and one which does not – something I’ve previously said is questionable; especially when particularly severe injuries can be, and often are, described as being worse than a relatively quick death.
PRAGMATISM VERSUS DOGMA
Another case which I think demonstrates the inadequacy of the over-reliance on provability is that of Elizabeth Brown. It’s one I’ve mentioned before because I find the verdict utterly incomprehensible. The salient points: van driver drives at speed into rear of cyclist and kills her; van driver’s defence explicitly states that the cyclist was totally blameless; moreover, van driver claims to have not seen the cyclist in time due to his own actions which are clearly indicative of unsafe driving (ie following another vehicle too closely).
Now, this is the one scenario which bothers me personallyon the road (which is not to say that it’s the only one that should bother others). I can anticipate hazards in front of me and can modify my behaviour to minimse the risk, but if a vehicle drives into me from behind I can do nothing. And so it was in Miss Brown’s case: there was nothing she could have done and was entirely blameless in her death.
The crucial point for me is that if two parties collide on an open road, one proceeding directly into the rear of the other, and the party in front carries zero fault, where does the balance of fault lie? Any sane individual should, I believe, be of the opinion that it lies with the other party; the law patently takes the alternative view that either there is no fault – which is essentially a statement that killing people with a van every bit as much a part of a civilised society as eating breakfast – or that the fault lies with a third party. Whom, then? “Act of God”? Driving vans into people is comparable to wind and rain?
Anyway. Before I stray too far into hyperbole, the point is that the law as it stands fails to recognise what most – I would say “all” but clearly the jury differed – people would see as liability. And so maybe some presumption might beat some sense into it.
I cited the case in an online discussion recently and the counter-argument was that “you must take account of (1) proof beyond reasonable doubt, and (2) not hearing all the evidence … I sicken of people declaring others guilty and wrongly acquitted.”
Now, I agree with that. As I’ve said, I’m a firm believer in scientific process and the idea of proving something “beyond reasonable doubt”.
But – crucially – we must differentiate between our reverence of the due process and the specific definition of offences to which that process pertains. The point is that the legal system fails vulnerable road users in large part because of its high placement of the bar in terms of the specific definitions of “careless” and “dangerous”, not because of its inherent process.
Presumed liability is not the full solution; that is a combination of things. But the real burning issue is – on top of the fact that minor offences need to be dealt with harshly before that unlucky day when they result in death – that something is needed to focus the minds of drivers when the are anywhere near more vulnerable road users (and even when they may be: one cannot see round corners or, noting the case of Miss Brown, through vans), and which provides appropriately for those who suffer material loss, damage or bereavement in these incidents.
We need to work towards a system which accepts that humans are fallible (such concepts exist in socially progressive countries), and that means that protection for the vulnerable needs to be enhanced. Infrastructure delivers gains in that area, but that takes time and very considerable amounts of money. However, legislation can also achieve worthwhile gains, and takes neither time nor money in great measure. It takes will.
But, as we all know, in reality this has to go through politicians, and if one were cynical one might ask: Why go to the bother of mustering collective will, when you could just tell the electorate that you’ve spent some money on red tarmac?
Martin Porter has added a comment from Tom’s aunt to his post:
“It is the law which has failed to us, by bizarrely dividing the event into Before and After Impact … Indeed, the fact of Tom’s body being on the windscreen became a mitigating factor as the driver could not see where he was going”
I think you will agree, taking into account both cases I have mentioned, that when you are cleared of any offence because your tailgating prevented him from seeing the cyclist that was subsequently killed when you drove into her, and when a driving offence is mitigated by the fact that your windscreen is obscured by the body of the person that was killed when you drove into him, the law is patently not fit for purpose.
Things must change.