Strict Liability - Examples of why it should be introduced

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Re: Strict Liability - Examples of why it should be introduc

Postby Xplora » Thu Jun 14, 2012 9:25 pm

jules21 wrote:
Xplora wrote:This is precisely why such an offence is necessary. Hitting the bus is preferable to mowing down pedestrians. The car has airbags and all sorts of gear to reduce the severity of impact. If hitting the vulnerable person on the footpath meant 4 weeks in the clink, he would have hit the bus instead.

with respect, i think it's highly unlikely that anything other than self preservation instincts would have influenced the driver's evasive actions in those circumstances. they would not have time to weigh up the legal outcomes of their vehicle control inputs.

Very hard to be definitive about this, because we don't know the driver, but you CAN make those decisions. You might not get the opportunity to correct them, but this is precisely the point - if you can't take responsibility for the vehicle, you shouldn't be using it. I can't quite work out how charging onto the footpath is going to seem like a better plan than the bus, but I'm not the guy. I am not here to make his excuses though - just to advocate for a change in the rules.

Since riding regularly, I DO feel the weight and seriousness of driving a car when I'm behind the wheel. Most people simply don't appreciate what driving a car means. The law is there to force people to take their actions seriously.
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Fri Jun 15, 2012 12:32 pm

Xplora wrote: I am not here to make his excuses though - just to advocate for a change in the rules.


What change, exactly? To what rules? Give us some critical evaluation.
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Re: Strict Liability - Examples of why it should be introduc

Postby Xplora » Fri Jun 15, 2012 1:07 pm

high_tea wrote:
Xplora wrote: I am not here to make his excuses though - just to advocate for a change in the rules.


What change, exactly? To what rules? Give us some critical evaluation.

Refer to the wide body of discussion already at hand. I don't expect you to repost a thesis every time you make a comment :lol:
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Re: Strict Liability - Examples of why it should be introduc

Postby jules21 » Fri Jun 15, 2012 1:11 pm

Xplora wrote:Refer to the wide body of discussion already at hand. I don't expect you to repost a thesis every time you make a comment :lol:

i'm not disagreeing with you necessarily, but my reading of the 'body of discussion' is that people are confused about what a strict liability provision for cyclists would be or mean, other than generally shifting more responsibility onto motorists. as hightea said, it needs to be more precise than that.
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Fri Jun 15, 2012 2:11 pm

Xplora wrote:
high_tea wrote:
Xplora wrote: I am not here to make his excuses though - just to advocate for a change in the rules.


What change, exactly? To what rules? Give us some critical evaluation.

Refer to the wide body of discussion already at hand. I don't expect you to repost a thesis every time you make a comment :lol:


Nice try. It hasn't been pointed out how the law has failed in this situation, let alone how it should be fixed. So. What's the problem? How would you fix it?
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Re: Strict Liability - Examples of why it should be introduc

Postby Xplora » Fri Jun 15, 2012 5:36 pm

Adopt the Dutch approach. Blanket blame for motorists unless it can be shown that the vulnerable party was at fault. Automatic guilt for this situation on the driver. Jail time is appropriate. Accidents are accidents when you are powerless to avoid them. The guy chose the footpath over the bus, and hit a vulnerable road user. Should have hit the bus, safer for everyone except him. Not my problem - you want to drive a car, you take responsibility for the results of that decision.

The law failed terribly to protect this woman. An expectation that an offence has occurred once the car hit her, without any discussion, is the most appropriate approach. I feel people who can't control cars are literally bulls in the china shop, wielding sledgehammers. If they break plates, they need to be punished without discussion about how they broke them. I don't care why it happened. You just smashed plates, and those plates are more important than your freedom.

Epic metaphor overkill :shock:
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Re: Strict Liability - Examples of why it should be introduc

Postby exadios » Fri Jun 15, 2012 6:03 pm

Xplora wrote:
high_tea wrote:
Xplora wrote: I am not here to make his excuses though - just to advocate for a change in the rules.


What change, exactly? To what rules? Give us some critical evaluation.

Refer to the wide body of discussion already at hand. I don't expect you to repost a thesis every time you make a comment :lol:


All of "the wide body of discussion already at hand" that I have seen is hopelessly vague. Are you talking about amendments to the civil law or the criminal code?
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Re: Strict Liability - Examples of why it should be introduc

Postby exadios » Fri Jun 15, 2012 6:06 pm

Xplora wrote:Adopt the Dutch approach. Blanket blame for motorists unless it can be shown that the vulnerable party was at fault. Automatic guilt for this situation on the driver. Jail time is appropriate. Accidents are accidents when you are powerless to avoid them. The guy chose the footpath over the bus, and hit a vulnerable road user. Should have hit the bus, safer for everyone except him. Not my problem - you want to drive a car, you take responsibility for the results of that decision.

The law failed terribly to protect this woman. An expectation that an offence has occurred once the car hit her, without any discussion, is the most appropriate approach. I feel people who can't control cars are literally bulls in the china shop, wielding sledgehammers. If they break plates, they need to be punished without discussion about how they broke them. I don't care why it happened. You just smashed plates, and those plates are more important than your freedom.

Epic metaphor overkill :shock:


As I understand it the "Dutch approach" consists only of civil law provisions. No criminal offense, no "guilt", no prison etc.
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Fri Jun 15, 2012 7:06 pm

Xplora wrote:Adopt the Dutch approach. Blanket blame for motorists unless it can be shown that the vulnerable party was at fault. Automatic guilt for this situation on the driver. Jail time is appropriate. Accidents are accidents when you are powerless to avoid them. The guy chose the footpath over the bus, and hit a vulnerable road user. Should have hit the bus, safer for everyone except him. Not my problem - you want to drive a car, you take responsibility for the results of that decision.

The law failed terribly to protect this woman. An expectation that an offence has occurred once the car hit her, without any discussion, is the most appropriate approach. I feel people who can't control cars are literally bulls in the china shop, wielding sledgehammers. If they break plates, they need to be punished without discussion about how they broke them. I don't care why it happened. You just smashed plates, and those plates are more important than your freedom.

Epic metaphor overkill :shock:


You completely misrepresent the "Dutch approach". It's about civil liability, like exadios said.

Forget about automatic guilt. It may be a fun topic to pontificate about, but it's unconstitutional. It's not going to happen. Take your own advice, read the thread. The problems with such an approach have already been pointed out. The solution at present, is to have defences available, but that's not the case if you create a complete legal indifference to why something happened. Such a law is, not to put too fine a point on it, monstrous. It imposes guilt for genuine accidents - situations where the driver is in no way responsible and could not reasonably avoid the problem.

This suggestion has nothing to do with any extant form of strict liability. You need to come up with another slogan. My suggestion is "repugnant liability", because such a law would surely be repugnant to a state court's exercise of its constitutional functions. Laws have been struck down for less; have a read of the Kable case if you're curious. If you want something chirpier-sounding, how about "fantastic liability"? because it's a fantasy and will, thankfully, stay that way.

I also fail to see how the law failed this person, unless you mean "failed to have some hypothetical normative effect that would have stopped the accident in the first place". If that's the case, sorry, every law's going to fail in that way sooner or later. That's reality for ya'.



PS: I should be able to help myself, but I can't. People who can't control cars aren't literally bulls, not in a china shop nor out of one.
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Re: Strict Liability - Examples of why it should be introduc

Postby exadios » Fri Jun 15, 2012 8:30 pm

high_tea wrote:
Xplora wrote:Adopt the Dutch approach. Blanket blame for motorists unless it can be shown that the vulnerable party was at fault. Automatic guilt for this situation on the driver. Jail time is appropriate. Accidents are accidents when you are powerless to avoid them. The guy chose the footpath over the bus, and hit a vulnerable road user. Should have hit the bus, safer for everyone except him. Not my problem - you want to drive a car, you take responsibility for the results of that decision.

The law failed terribly to protect this woman. An expectation that an offence has occurred once the car hit her, without any discussion, is the most appropriate approach. I feel people who can't control cars are literally bulls in the china shop, wielding sledgehammers. If they break plates, they need to be punished without discussion about how they broke them. I don't care why it happened. You just smashed plates, and those plates are more important than your freedom.

Epic metaphor overkill :shock:


You completely misrepresent the "Dutch approach". It's about civil liability, like exadios said.

Forget about automatic guilt. It may be a fun topic to pontificate about, but it's unconstitutional. It's not going to happen. Take your own advice, read the thread. The problems with such an approach have already been pointed out. The solution at present, is to have defences available, but that's not the case if you create a complete legal indifference to why something happened. Such a law is, not to put too fine a point on it, monstrous. It imposes guilt for genuine accidents - situations where the driver is in no way responsible and could not reasonably avoid the problem.

This suggestion has nothing to do with any extant form of strict liability. You need to come up with another slogan. My suggestion is "repugnant liability", because such a law would surely be repugnant to a state court's exercise of its constitutional functions. Laws have been struck down for less; have a read of the Kable case if you're curious. If you want something chirpier-sounding, how about "fantastic liability"? because it's a fantasy and will, thankfully, stay that way.

I also fail to see how the law failed this person, unless you mean "failed to have some hypothetical normative effect that would have stopped the accident in the first place". If that's the case, sorry, every law's going to fail in that way sooner or later. That's reality for ya'.



PS: I should be able to help myself, but I can't. People who can't control cars aren't literally bulls, not in a china shop nor out of one.


Repugnant liability - I like it :)

I believe there is a solution to this problem. It is a solution that anybody who has trained as a aircraft pilot or industrial operator will recognize. Basically it involves being trained to think ahead - what will you do if this or that happens. This is backed up by constant testing using various scenarios during training. Finally we need annual or biannual testing to maintain a license.

As has been pointed out a motor vehicle is potentially a very dangerous piece of plant. It is time that we treat it as such.
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Fri Jun 15, 2012 8:56 pm

exadios wrote:
high_tea wrote:
Xplora wrote:Adopt the Dutch approach. Blanket blame for motorists unless it can be shown that the vulnerable party was at fault. Automatic guilt for this situation on the driver. Jail time is appropriate. Accidents are accidents when you are powerless to avoid them. The guy chose the footpath over the bus, and hit a vulnerable road user. Should have hit the bus, safer for everyone except him. Not my problem - you want to drive a car, you take responsibility for the results of that decision.

The law failed terribly to protect this woman. An expectation that an offence has occurred once the car hit her, without any discussion, is the most appropriate approach. I feel people who can't control cars are literally bulls in the china shop, wielding sledgehammers. If they break plates, they need to be punished without discussion about how they broke them. I don't care why it happened. You just smashed plates, and those plates are more important than your freedom.

Epic metaphor overkill :shock:


You completely misrepresent the "Dutch approach". It's about civil liability, like exadios said.

Forget about automatic guilt. It may be a fun topic to pontificate about, but it's unconstitutional. It's not going to happen. Take your own advice, read the thread. The problems with such an approach have already been pointed out. The solution at present, is to have defences available, but that's not the case if you create a complete legal indifference to why something happened. Such a law is, not to put too fine a point on it, monstrous. It imposes guilt for genuine accidents - situations where the driver is in no way responsible and could not reasonably avoid the problem.

This suggestion has nothing to do with any extant form of strict liability. You need to come up with another slogan. My suggestion is "repugnant liability", because such a law would surely be repugnant to a state court's exercise of its constitutional functions. Laws have been struck down for less; have a read of the Kable case if you're curious. If you want something chirpier-sounding, how about "fantastic liability"? because it's a fantasy and will, thankfully, stay that way.

I also fail to see how the law failed this person, unless you mean "failed to have some hypothetical normative effect that would have stopped the accident in the first place". If that's the case, sorry, every law's going to fail in that way sooner or later. That's reality for ya'.



PS: I should be able to help myself, but I can't. People who can't control cars aren't literally bulls, not in a china shop nor out of one.


Repugnant liability - I like it :)

I believe there is a solution to this problem. It is a solution that anybody who has trained as a aircraft pilot or industrial operator will recognize. Basically it involves being trained to think ahead - what will you do if this or that happens. This is backed up by constant testing using various scenarios during training. Finally we need annual or biannual testing to maintain a license.

As has been pointed out a motor vehicle is potentially a very dangerous piece of plant. It is time that we treat it as such.


Oh, I couldn't agree more. A driver's license is far too close to a license to kill for my liking. Dramatically higher driving standards, reflected in law? I can get alongside that. I can get alongside all sorts of changes, just not ones that are completely whacky. I'm funny that way.

I still think this case is a weak example of a problem. This driver is being had up in court for their bad driving. Gaol is apparently on the table. The only problem I can see is that this doesn't happen often enough.
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Re: Strict Liability - Examples of why it should be introduc

Postby KonaCommuter » Sat Jun 16, 2012 7:39 am

high_tea wrote:
I still think this case is a weak example of a problem. This driver is being had up in court for their bad driving. Gaol is apparently on the table. The only problem I can see is that this doesn't happen often enough.



In my defence my intention was to create a thread in which to collate examples where motorists consciously chose to collide with vulnerable traffic in order to avoid colliding with other traffic of equal or higher on the food chain.




EDIT to add


I think that if a vehicle leaves the road then the driver should face serious charges.
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Re: Strict Liability - Examples of why it should be introduc

Postby GraemeL » Sat Jun 16, 2012 12:05 pm

You guys talk like there is ample time to decide what to do when involved in a collision. Do you really think there is ample time to decide what to hit?

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Re: Strict Liability - Examples of why it should be introduc

Postby exadios » Sat Jun 16, 2012 12:27 pm

GraemeL wrote:You guys talk like there is ample time to decide what to do when involved in a collision. Do you really think there is ample time to decide what to hit?

Graeme


Exactly! In the event of any emergency all that an reasonably individual can do is the execute the decision made before the emergency commenced. This is why I think that driver training needs to be changed. Drivers need to be trained to continuously make the "what if" decisions before they are actually needed. This is what pilots and plant operators (and others) are trained to do.
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Re: Strict Liability - Examples of why it should be introduc

Postby KonaCommuter » Sat Jun 16, 2012 3:18 pm

GraemeL wrote:You guys talk like there is ample time to decide what to do when involved in a collision. Do you really think there is ample time to decide what to hit?

Graeme




All the more reason to have made the decision before being involved in an accident.

I read that professional tennis players serve the ball at such speeds that it exceeds the ability of the brain to react in time, however the ball does get returned. Why? Because of the training these athletes have put in they have already decided how to react. Same with martial artists. Their reactions are lightning fast because they’ve thought about and trained how to react.
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Re: Strict Liability - Examples of why it should be introduc

Postby Mulger bill » Sat Jun 16, 2012 5:55 pm

So would a graduated system of licensing whereby x amount of on road cycling time is required before a licence for a scooter/moto be applied for followed by x amount of on road scooter/moto time before a smokebox licence be applied for and so on.

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Re: Strict Liability - Examples of why it should be introduc

Postby Xplora » Sun Jun 17, 2012 9:54 am

Oxford wrote: If more did it, the roads would be much safer.

It's a shame that an acronym is required for the act of PAYING ATTENTION... and you are indeed right. It's particularly bad outside Sydney peak - the regular drivers know the score.

The simple fact is that anyone can drive a car. It's not hard. There must be compulsion to do it "well". I think we'd all benefit from a lot more coroner cams in cars, on bikes, on peds... so much of our legal system relies on evidence when something goes wrong that it seems foolish to presume that the other road users will both do the right thing, and then tell the truth in court. I swear to tell the truth, etc so help me God doesn't hold as much weight in a postmodern society. But the camera rarely lies.
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Re: Strict Liability - Examples of why it should be introduc

Postby GraemeL » Sun Jun 17, 2012 10:14 am

Oxford wrote:There is always plenty of time to decide for any driver worth their salt.



Well I think that is a croc of..

over the 38 years I have been driving, I have been involved in a few accidents, I consider myself to be a very good driver, I am aware of what is going on around me, so I can try and predict what may happen.

You don't have time to decide what you will do, it happens in the blink of an eye and it is purely a reaction with very little thought.

And for the record only one of the accidents was my fault. Travelling down a poorly lit side street at 2am, I hit a wheelie bin that someone had put in the middle of the road. I saw it at the last second and had no time what so ever to react, even though I was travelling at a low speed.

The others were, a person failed to give way to the right and T boned me, I didn't even see him the only indication I had was screeching brakes.
Next, a guy turned in front of me, again there was no time at all to react.
The next was at night when the person behind me lost control on a wet road and rear ended me and again I only had sounds to alert me that he was approaching, by the time it registered It was too late to try and avoid him.
The next was when I hit and killed a doberman that ran out in front of me. I was travelling at 60kph I saw the dog running along the footpath, the next thing it was on the road right in front of me and although it's illegal to, I didn't even have time to brake.


There are a lot of things that come into play and to say that a person has plenty of time to react is just ridiculous. There are a lot of things going on that you have no control over, even if you could react in time.

By the the time you say !! BAN ME NOW FOR SWEARING !!, it's all over.

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Re: Strict Liability - Examples of why it should be introduc

Postby RonK » Sun Jun 17, 2012 11:47 am

jules21 wrote:with respect, i think it's highly unlikely that anything other than self preservation instincts would have influenced the driver's evasive actions in those circumstances. they would not have time to weigh up the legal outcomes of their vehicle control inputs.

Couldn't agree more wholeheartly Jules.
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Re: Strict Liability - Examples of why it should be introduc

Postby greyhoundtom » Sun Jun 17, 2012 5:23 pm

I was under the impression that was already at least one strict liability law in criminal legislative structure, namely possession of illegal drugs. :?: :?
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Sun Jun 17, 2012 6:00 pm

Oh, there are plenty of examples of strict criminal liability. Most (all?) of the Road Rules, unlawful wounding in Queensland, etc etc. There's nothing new there. As this thread shows, however, that's not what the typical strict-liability-supporter has in mind. What they do have in mind is anyone's guess, which is kinda the problem.
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Re: Strict Liability - Examples of why it should be introduc

Postby greyhoundtom » Sun Jun 17, 2012 10:21 pm

Strict liability has a very specific meaning in Australian criminal law, and from what I can gather Automatically at Fault would be a better term to describe what is really required.
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Re: Strict Liability - Examples of why it should be introduc

Postby high_tea » Mon Jun 18, 2012 9:04 am

Beats me why. Consider dangerous driving. The hard bit to make out is the dangerousness, the fault element. Now, dangerous driving without a fault element doesn't make a lot of sense. Consider a hitting-a-vulnerable-road-user offence. You don't need a fault element for that one. You hit a VUR, you're gone (subject to defences of accident, mistake, etc). That's strict liability in the technical sense. It's a criminal law, so insurance companies can't go messing the normative effect up. It is, more or less, the criminal analogue of the Dutch (civil) law that everyone is ga-ga for (AFAIK nobody in the world has gone and done it - criminal strict liability for VUR offences - so here's Australia's shot at another world first!). Nice and simple. I've suggested this a few times and nobody has been able to explain why it's a bad idea (apart from being controversial, which is a problem with any VUR law you care to come up with.

Want another idea? Making injuring a VUR a circumstance of aggravation to breaches of the Road Rules. Sell it as a way to punish Lycra louts who mow pedestrians down.

But no, we have proposals that are much more vague and/or much more complicated, like a civil penalty regime (what, like for breaches of directors' duties? Why?) I can only speculate why.
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Re: Strict Liability - Examples of why it should be introduc

Postby greyhoundtom » Mon Jun 18, 2012 9:25 am

high_tea wrote:<snip>
Want another idea? Making injuring a VUR a circumstance of aggravation to breaches of the Road Rules. Sell it as a way to punish Lycra louts who mow pedestrians down.

But no, we have proposals that are much more vague and/or much more complicated, like a civil penalty regime (what, like for breaches of directors' duties? Why?) I can only speculate why.

Sounds like a damn good idea to me as it makes everyone that has behaved in a dangerous manner under the existing road Rules causing injury or worse (cyclists included), more liable to penalties that will assist in curbing that type of behavior.
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Re: Strict Liability - Examples of why it should be introduc

Postby jules21 » Mon Jun 18, 2012 10:53 am

high_tea wrote: Consider a hitting-a-vulnerable-road-user offence. You don't need a fault element for that one. You hit a VUR, you're gone (subject to defences of accident, mistake, etc).

Want another idea? Making injuring a VUR a circumstance of aggravation to breaches of the Road Rules. Sell it as a way to punish Lycra louts who mow pedestrians down.

these are good ideas. the first one already exists on shared paths, if you hit a pedestrian (expressed as a duty to yield to pedestrians) - so we know it can work.
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