When lorries hit cyclists the driver should have to prove they are not liable says Green Party leader

darrylxxx wrote:

I'm not sure if it's the same thing but 'common purpose' or 'joint enterprise' sounds very similar.

From wikipedia "joint enterprise is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all that results from that enterprise. A common application of the rule is to impute criminal liability for wounding a person to participants in a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it, despite the fact that the other participants did not have knives themselves."
https://en.wikipedia.org/wiki/Common_purpose

I know this is now under review though.

It's not, and it's quite right that this is under review. As the quote says, joint enterprise concerns criminal liability not civil.

kwi wrote:

My barrister basically summed up the difference between criminal and civil courts as, "In a criminal case they have to prove you are guilty, in a civil court you have to prove you are innocent."

Strictly speaking, in a criminal case you have to be proven guilty "beyond all reasonable doubt", but in a civil case you have to be proven liable "on the balance of probabilities". So in a criminal case you have to basically be certain, whereas in a civil case anything more than 50/50 is good enough.

truffy wrote:

Quote:

She argues that vulnerable road users killed by large vehicles should be entitled to compensation

What will they do with it, Nats?.

bok-bok-bok

Insurance, the company that owns the lorry etc ...

That is a sensible proposal and should be for anyone killed on roads

ianrobo wrote:

...explain why we should have presumed guilt (that is what what presumed liability really is) why should anyone on the road have to prove they are not liable/guilty.

It's not presumed guilt. That's been repeated many times, if you don't understand that civil liability and criminal guilt are different things, than that would be your misunderstanding. There are no criminal charges resulting from this proposed change in the law.

We have presumed liability in many areas of law, where it provides an overall benefit to protect victims where otherwise large numbers would be left with no protection and greater exposure to risk. Large amounts of health and safety law use the principle to protect people in the workplace, and as with driving workplace insurance is mandatory to cover this.

It's used when there is a significant need to redress harm to society. I think you might want to go and do some research into how much existing law you are arguing against, and what the impact to victims would be in abolishing it.

ianrobo wrote:

maybe instead of insults you could explain why we should have presumed guilt (that is what what presumed liability really is) why should anyone on the road have to prove they are not liable/guilty.

you are presuming that cyclists are not at fault and frankly from the behaviour I have seen in London (after all this is where most lorry/cyclist deaths/accident happen) it is difficult to say that.

I don't find it difficult to say that. "Cyclists are usually not the ones at fault" - look, there, I said it! The statistics of course also back it up. And, frankly, from the behaviour of drivers I see in London on a daily basis (including as a pedestrian), I find it very easy to say that.

And you really seem to be struggling with the difference between liability and criminal responsibility.

ianrobo wrote:

maybe instead of insults you could explain why we should have presumed guilt (that is what what presumed liability really is) why should anyone on the road have to prove they are not liable/guilty.

you are presuming that cyclists are not at fault and frankly from the behaviour I have seen in London (after all this is where most lorry/cyclist deaths/accident happen) it is difficult to say that.

Do you understand that there are two different areas of law - criminal and civil law? You are mixing them both up.

In criminal law the State is trying to convince a court that the defendant is GUILTY of an offence. They have to prove the case. In Civil law the claimant is trying to establish that the defendant is LIABLE for their losses e.g. injuries, damage to property, pecuniary losses, damage to reputation i.e. defamation, etc. The claimant has to prove their case. There are exceptions where the defendant is presumed to liable, as mentioned above, except where they can demonstrate otherwise. It is a rebuttable presumption of liability. To suggest that lorry drivers or drivers of HGVs would always be held liable if they are in collision with a vulnerable road user is bollocks as they may well to rebut the presumption of liability against them with compelling evidence to the contrary. This is how the law should be, in line with more forward thinking European countries already mentioned above. I suggest you do some research i.e. on law before making more ill informed posts.

ianrobo wrote:

exactly I disagree with that presumption it is always the fault of the driver running into the back of someone. Circumstances for each one are always different and should be judged on it's own merit.

How can you presume a liability when the reality is that many situations no one is to blame.

So to recap. Not only do you not support these proposed changes to presumed liability, you want to abolish the current status of presumed liability so that tailgating becomes much more common.

ianrobo wrote:

exactly I disagree with that presumption it is always the fault of the driver running into the back of someone. Circumstances for each one are always different and should be judged on it's own merit.

How can you presume a liability when the reality is that many situations no one is to blame.

Eh? There's very rarely no one to blame. I really can't think how that could be.

vonhelmet wrote:

ianrobo wrote:

exactly I disagree with that presumption it is always the fault of the driver running into the back of someone. Circumstances for each one are always different and should be judged on it's own merit.

How can you presume a liability when the reality is that many situations no one is to blame.

Eh? There's very rarely no one to blame. I really can't think how that could be.

there are situations where someone could brake quickly in front and the next driver could be a fair distance behind and still go in. Most cases would be clear cut and easy to resolve but to presume that someone is at guilt ?

I will give you a personal example, I was gone into the back of my car by someone, because of presumed liability I was found at no fault. However I did brake quickly at a perceived issue which was not there. This was years ago but in that case I could not argue if it was a no fault accident.

Why should we always presume for example Lorry drivers are at fault if some irresponsible cyclist seals up on their blindside ? Surely in that situation the cyclist is just as responsible for their safety as the lorry driver ?

It's a good policy...the sooner people understand that presumed liability already exists in some circumstances and that this is a sensible extension to the framework, the better.

ianrobo wrote:

exactly I disagree with that presumption it is always the fault of the driver running into the back of someone. Circumstances for each one are always different and should be judged on it's own merit.

How can you presume a liability when the reality is that many situations no one is to blame.

Thing is, before you said it was 'against all English law and practice', but now you have an example of how it already exists in 'English law and practice' (and there are other examples) you have changed your position to saying you disagree with English law and practice? Not very consistent, is it?

Its pretty rare that 'no-one is to blame', though, to be honest, I often feel its less the driver and more the road-planners, local council or, goddamit, the electorate who are to blame, and its tough to hold any of those to account (the last are a real bunch of scoundrels).

http://road.cc/users/ianrobo Not listening are you - no one is claiming anything about guilt in this debate.

A V Lowe wrote:

http://road.cc/users/ianrobo Not listening are you - no one is claiming anything about guilt in this debate.

yes they are the title of this article is

When lorries hit cyclists the driver should have to prove they are not liable

No that is against all english law and practice, the authorities be it insurance, police or others have to prove who is at fault, not presume someone is before the process starts.

ianrobo wrote:

A V Lowe wrote:

http://road.cc/users/ianrobo Not listening are you - no one is claiming anything about guilt in this debate.

yes they are the title of this article is

When lorries hit cyclists the driver should have to prove they are not liable

No that is against all english law and practice, the authorities be it insurance, police or others have to prove who is at fault, not presume someone is before the process starts.

Ehhh? The new proposal is a change to which party has the burden of proof which would be a REBUTTABLE PRESUMPTION. Currently in a Civil Claim a claimant has to show that a defendant was on the balance of probabilities NEGLIGENT. Fault is layman's terms. Has no basis in law, but don't let mis-understanding of how the law works hold you back.

ianrobo wrote:

No that is against all english law and practice, the authorities be it insurance, police or others have to prove who is at fault, not presume someone is before the process starts.

No, you're confusing guilt with civil liability, there's already the same presumption of liability of the driver that runs into the back of the vehicle in front, hence the fraudulent insurance/whiplash claims where one driver's pulled in front of another and braked so as to cause a collision.

Understand the difference now ?

ianrobo wrote:

A V Lowe wrote:

http://road.cc/users/ianrobo Not listening are you - no one is claiming anything about guilt in this debate.

yes they are the title of this article is

When lorries hit cyclists the driver should have to prove they are not liable

No that is against all english law and practice, the authorities be it insurance, police or others have to prove who is at fault, not presume someone is before the process starts.

Nope. If I crash into the back of another car whilst driving, I will be presumed liable and my insurance will be paying out unless I can prove otherwise. If I'm a very naughty person and I'm driving without insurance, every other person involved can sue me in a civil case which I will lose unless I can prove they were at fault. I will also face a criminal charge for not having insurance and possibly a criminal charge related to my driving if there is evidence to support that.

That's your quick introduction to the principle of presumed liability in civil law, distinct from criminal culpability.

A V Lowe wrote:

http://road.cc/users/ianrobo Not listening are you - no one is claiming anything about guilt in this debate.

yes they are the title of this article is

When lorries hit cyclists the driver should have to prove they are not liable

No that is against all english law and practice, the authorities be it insurance, police or others have to prove who is at fault, not presume someone is before the process starts.

ianrobo wrote:

In this country we have presumed innocence and not guilt in the justice system.

There should never be presumed fault or non fault at all and the facts should do that.

In any bike collisions I have had the experience has been good in my dealings with police/insurance companies but you have to be forceful in what you say happened.

The concept of presumed liability in civil legal cases seems to escape your grasp.

It certainly does not cause any excessive issues with delivering fair judgment in the European countries using it, which is nearly all of them.

Glad to hear your interactions with the police, CPS and insurance companies have been positive. That is not mirrored by most who are the victims of road violence / road traffic collisions.

gmac101 wrote:

There is already a law that you have to prove you are innocent if you are charged under it. Carrying a knife in public, pretty much any knife, is illegal without reasonable excuse and it's your job (as the knife carrier) to prove that you have that excuse.

Presumably the prosecution's first job is to prove you were carrying a knife and you are presumed innocent of that. Any excuse for carrying it is secondary to that.

the_jm wrote:

gmac101 wrote:

There is already a law that you have to prove you are innocent if you are charged under it. Carrying a knife in public, pretty much any knife, is illegal without reasonable excuse and it's your job (as the knife carrier) to prove that you have that excuse.

Presumably the prosecution's first job is to prove you were carrying a knife and you are presumed innocent of that. Any excuse for carrying it is secondary to that.

I don't really grasp your point here. In the case of a lorry killing someone, the prosecution wouldn't have much trouble proving that the driver was driving the lorry or that someone was dead.

Is that not the equivalent to 'proving you were carrying a knife'?

Clearly if there was serious doubt as to who the driver was that would be another issue.

Though I'm not at all clear whether you are arguing against the post you quote or agreeing with it.

Plus of course the whole analogy is in danger of confusing criminal guilt with civil liability.

FluffyKittenofTindalos wrote:

the_jm wrote:

gmac101 wrote:

There is already a law that you have to prove you are innocent if you are charged under it. Carrying a knife in public, pretty much any knife, is illegal without reasonable excuse and it's your job (as the knife carrier) to prove that you have that excuse.

Presumably the prosecution's first job is to prove you were carrying a knife and you are presumed innocent of that. Any excuse for carrying it is secondary to that.

I don't really grasp your point here. In the case of a lorry killing someone, the prosecution wouldn't have much trouble proving that the driver was driving the lorry or that someone was dead.

Is that not the equivalent to 'proving you were carrying a knife'?

No, it is not. The offence is 'having an offensive weapon in a public place" the prosecution's job is to prove that beyond reasonable doubt. Mitigating factors are irrelevant if that cannot be proved. In your scenario of a lorry killing someone, the prosecution has to prove whatever the driver was charged with, not that the lorry killed somebody. The point is that there is no presumption of guilt.

The gentleman in question admitted to carrying the knife prior to a police search and in court he did not at any time contest that - his defence rested solely on his reasonable excuse