I’m not necessarily coming down on either side of this fence, but this is the best argument I’ve heard in favour of strict liability…
It is just and reasonable that if a person for his own advantage uses a dangerous machine, he should pay for the damage that it occasions. If the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public, and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. If the use of the machine is profitable, the owner ought to pay compensation for the damage.
The difference between this explanation and those I have heard previously is the idea of the driver profiting from their use of the vehicle, this taps in to another theme I have been considering recently, the moral hazard.
Driving is a morally hazardous activity, drivers accumulate all the benefits of driving while other road users bear a disproportionate amount of the costs. Many pedestrians and cyclists pay with their lives so that drivers can benefit from the use of cars. The existence of this moral hazard is why many feel the penalties for careless and dangerous driving are too low, the prospect of a criminal penalty is the last protection a pedestrian may have against a driver who considers speeding to save time. But who would speed if the minimum penalty for killing a vulnerable road user while speeding was ten years? As I understand it the above quote says if you choose to benefit from the use of a car then should anyone suffer loss due to your profit, you must bear the cost of that loss.
Supposing, as often happens, a motor car when being driven splashes the mud into a pedestrian’s eye and injures it. Is the motorist to be liable for that? That is a matter which wants careful thinking about. I doubt if it could be said that that is a case where the motorist should be liable in damages.
In this case the motorist might not be at all negligent, but they are benefitting from the use of the car, the use of the car has caused a loss to someone else, therefore they should use some of what they have gained to compensate the pedestrian.
I should also point out that these quotes were taken from Hansard, a debate in parliament in 1932 discussing the ROAD TRAFFIC (COMPENSATION FOR ACCIDENTS) BILL, and spoken by lord Danesfort, Conservative politician. I encourage you to click on the link as it is a very interesting read.
Earl Buxton provides us with this limerick of the day
Here lies the body of Matthew Bent,
Who died in a motor accident.
He was right, modestly motoring along;
He is just as dead as though he were wrong
Even in 1932 they recognised that it didn’t matter how well trained or careful you are, you can easily be killed by someone else who is not as conscientious, and that the likelihood of this is far greater for a vulnerable road user than a driver. He goes on…
It is the reckless, the careless, the ignorant, those who have not got road sense who look upon the pedestrian as a nuisance with no rights upon the highway. My noble friend referred to public opinion and that has undoubtedly, even in the last few weeks, very largely expanded in emphasis and power, and I think that the motoring public and pedestrians are grateful to The Times newspaper for having given such prominence to the public protests that are being made. That will have some effect. I hope, for instance, it may have an effect on some of our magistrates who seem to me to take much too lenient a view of motor accidents, and who constantly fine when they ought to endorse, and endorse when they ought to take away the licence. Their usual reason is that when you take away a licence you destroy a man’s livelihood. But surely a man who has already in many cases destroyed the livelihood of others requires no consideration at the hands of the magistrates.
80 years later and it’s still The Thunderer leading the charge.
In the case of motorists what has happened so far is that they have had encouragement in every way. They have been licensed, and been given special advantages; their existence has been recognised and they have been allowed a great deal of liberty.
It is still more terrible for the unfortunate pedestrian who does not have the advantage of motoring, a not unworthy part of citizenship. I am not saying for a moment that many pedestrians are not stupid or inconsiderate or vacillating, very often take undue risks, and are, in many ways, a cause of great annoyance to motorists. But, after all, to be a cause of annoyance is not a criminal offence, and it hardly justifies a sentence of death or a sentence of disablement. I think it is 558 forgotten by those who, as I have heard, desire to oppose this Bill that in every case it is the motorist who is the aggressor. I have never heard of any pedestrian attacking a motor. In every case it is the motorist who is the aggressor against the pedestrian. The Lord Chancellor spoke just now of the difficulty of distinguishing sometimes between the contingent liability, but I happened to read only a day Or two ago in one paper three cases of pedestrians who had been killed on the footpath, not in attempting to get across the highway, through the negligence and incompetence of motorists.
The figures amount to this, that while 86 per cent. of the whole of the accidents are due either to the fault of the driver or to road conditions or mechanical defects of the vehicle, only 5 per cent. of the whole are due to the fault of the pedestrian.
My noble friend has pointed out that half of these accidents are to pedestrians, yet only 5 per cent. are due to the fault of the pedestrian. It is immaterial to the unfortunate victim whether the accident is due to the fault of the driver or to a defect of the machine or to road conditions; the fact remains that he suffers injury from the motor car. How is he to prove negligence?
There’s lots more, please do go and give it a read.