Stricter Law Enforcement (not Strict Liability!)June 22, 2012
I’ve just finished reading this article in The Times which is pressing for strict liability in cycling accidents i.e. a rebuttable presumption that a car driver is liable in any collision with a cyclist. The argument may hold a little more sway than usual as Mark Cavendish is lending his support. I have already blogged about strict liability here so I will not trot out the arguments again. However, I will mention the case of O’Connor -v- Stuttard as it illustrates that there is already a heavy onus upon drivers in civil cases, which is what Mark Cavendish says is needed.
O’Connor -v- Stuttard
This case was heard in the Court of Appeal in June 2011. There were a group of children playing with a football in a quiet residential side street and the defendant was driving towards them at about 10 mph. He saw the group of young children playing on the right hand side of the road and slowed further and positioned his car very close to the left side of the road. As he was doing this, the claimant (a 9 year old boy) ran across the road, from right to left, about 15 metres in front of the car. The child reached the left pavement and continued to play with the ball. The boy was not looking towards the car but was concentrating on the movement of the ball. In order to control the ball, the boy moved backwards to the very edge of the pavement, so much so that the heel of his left foot overhung the edge of the kerb. The driver struck the back of the claimant’s foot as he was passing, causing him quite serious injury.
The Court of Appeal found that the driver was driving, albeit slowly, very close to the kerb of a pavement on which the young boy was playing ball. The boy was looking at his ball, not at the approaching car and the driver should have appreciated that the boy was wholly unpredictable. As a result, the driver should have either stopped or sounded his horn or both. The driver did not do either, so was found to be liable for the boy’s injuries.
In my view, it is not civil law which has the problem, as there is already a fair system in place and a strong onus on drivers to act responsibly. (This is notwithstanding the changes to be introduced by the insurance-backed and ill thought out Legal Aid, Sentencing and Punishment of Offenders Bill, which will come into force in April 2013, but that is another story).
The issue comes with the criminal sanctions for those who cause accidents with cyclists. Take Robert Wightman, the Cumbrian coach driver who has today been cleared of killing two brothers (Christian and Niggy Townend) whilst they were cycling on the A595. Wightman told the jury he could not see the brothers, apparently due to the sun being in his eyes. The jury also heard that the coach’s windscreen washer was not working because freezing had displaced the pipes from the nozzles to the washer fluid bottle. As a result, grit and ice had smeared on his windscreen and Wightman said he could only see 20 to 30 metres ahead, and conceded he could not have stopped in that distance.
I have not heard all the evidence in this case, but it seems remarkable that there was no conviction in this case. However, the most frustrating thing is how few criminal cases even make it before a court in the first place, as the police show little appetite for prosecuting motorists where cyclists have been injured or put at risk.
The London Metropolitan police’s RoadSafe London website was set up to encourage people to report “criminal, nuisance and anti-social behaviour on the roads of London”. However, a Freedom of Information request showed that only 21 cycling intelligence reports were generated from the 530 near misses reported by cyclists plus (no doubt) a share of the 476 reports of anti-social driving. This means that only 3% of the cycling complaints resulted in any further action, which is horribly low by any standards.
There are few positive tales given by cyclists who try and prosecute drivers. Martin Porter QC has written in detail on the inaction by the police, even when they are handed video footage of dangerous driving. For these reasons, I think Mark Cavendish (and the other groups calling for strict liability) should redirect their gaze away from trying to change civil law and should focus on the inadequacies of legal enforcement. Otherwise it may only be a matter of time before private prosecutions are needed to get justice for cyclists.