CPGC Presentation October 2015
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Transcript of CPGC Presentation October 2015
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The star*ng point is the Duty of Care. We all owe a duty of care to other road users and that is a common law duty to exercise reasonable care and not to expose others to harm by our ac*ons. When considering a claim for compensa*on, you need to establish that a duty of care is owed, there has been a breach of that duty of care AND, as a result, a person has been injured. The important point is negligence. Negligence is established based upon the concept of balance of probability. Importantly, presumed liability does not do away with the concept of negligence. For a vulnerable road user to be compensated, there has to be a negligent act which resulted in the collision. Many argue that compensa*on is wrong and out of control. Some even suggest we have a “compensa*on culture” yet as Sheriff Principal James Taylor stated in his Review Of Expenses and Funding of Civil Li*ga*on in Scotland, “there is a different culture in Scotland“ and there is no evidence of a “compensa*on culture “ in Scotland. The whole purpose behind an award of compensa*on is an aPempt to put an injured individual back into the posi*on they would have been in but for the accident.
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In our fault based system for road traffic civil liability, it is the individual who bears the burden of proof. It is the individual who must establish the fault or negligence. In so doing, it is the individual who takes on the might of the insurance industry. Claims for compensa*on are made against insurance companies and not drivers. Drivers must pay for compulsory third party insurance. If a driver causes a collision and another is injured, his or her insurance company will pay any third party claim. Our present fault based system ignores the concept of harm and who brings most harm to a road traffic collision. As Lord Denning stated, “to require the individual to prove fault results in the gravest injus*ce”. Presumed liability is about recognising who is most able to bear the burden of proof. Is it the individual in our current fault system or should it be the large insurer in a presumed liability system?
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There is no automa*c en*tlement to compensa*on under presumed liability. Presumed liability is about transferring the burden of proof in recogni*on of who brings most harm. However, Road Share proposes to protect the children (<14), elderly (>70) and the disabled. They should be compensated without having to prove fault.
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Sally Low was killed following a collision with a car. She was on her own carriageway. An independent witness confirmed she had done nothing wrong. Despite that, the car driver’s insurance company would not compensate her family and it took 18 months for her 2 teenage sons and other family members to recover much needed compensa*on. Sally was a single mother and therefore the sole bread winner. Mark Lonnen was injured when a car driver opened his door into his path. Despite the straight forward circumstances, the driver’s insurance company would not compensate Mark. An ac*on had to be raised in court and it took 12 months for Mark to receive compensa*on. Alex Gibson was injured when a mini-‐bus overtook him. The driver did not leave sufficient room. The driver’s insurance company denied liability. Proceedings were raised in Court and it took 18 months for Alex to recover his award of compensa*on. Jamie Aarons was injured in a similar fashion to Mark Lonnen. On this occasion, a taxi driver opened his door into her path. He later denied liability. His insurance company maintained they had 6 witnesses that would prove that Jamie had cycled into an open door. Proceedings were raised in Court and the case sePled 11 months aeer the incident.
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To suggest that presumed liability will somehow turn Scots Law on its head is a complete nonsense. Principles of Scots Law are such that the individual has always been protected where the concept of harm is relevant. Take for example the Animal Scotland Act where a dog owner is strictly liable if his or her dog bites an individual. The work place had strict liability un*l it was removed following upon Sec*on 69 of the Enterprise and Regulatory Act. Before that and following introduc*on of strict liability in 1993, fatal accidents in the workplace were reduced from 1.3 per hundred thousand to 0.5 per hundred thousand over a 20 yr period. The Consumer Protec*on Act extends strict liability to the manufacturer or supplier of defec*ve goods. If an individual is injured as a result of a defec*ve product, the manufacturer or supplier is strictly liable to compensate that individual. All these examples take into account harm and who brings most harm to a situa*on. Why then is it so difficult for us to understand that presumed liability recognises the concept of harm? Why can we not take that one small step forward?
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Judges do take into account the aspect of blame worthiness. We seem to be half way there. For example, Lady Jus*ce Brenda Hale stated, “the court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is poten*ally a dangerous weapon”.
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From our research, we have established that no country in the world has achieved both high levels of walking and cycling and low casualty levels without presumed liability. Can anyone at Transport Scotland seriously state that there is any evidence that Scotland will achieve the desired increase in safe ac*ve travel without presumed liability when our research proves otherwise. It is not a coincidence that the countries in Europe with presumed or strict liability have a far bePer culture of road share.
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Presumed liability is about responsibility. Liability acts as an incen*ve to exercise care. If you are in control of an object of danger, then it is fair and reasonable that you should be presumed liable to compensate those injured following a collision. Presumed liability is also about social responsibility. Some complain that it is not fair and yet look at the evidence from the French insurance industry. The FFSA say that “insurers now support the "Loi Badinter" because, as well as providing quick and fair compensa*on, it has also “given high protec*on to vulnerable road users” and that “aeer the implementa*on of the law, the road traffic accidents decreased.” As a Na*on, how seriously do we take the health and safety of vulnerable road users? As a Na*on, do we care more about the insurance industry or more about our children, elderly and the disabled?
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The imposi*on of liability affects how categories of actors respond to the risks they create. Liability acts as an incen*ve to exercise care. Presumed liability will have a posi*ve affect not a nega*ve one.
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