Road Use and the Moral Hazard

Imagine for a moment you are walking along a pavement, a vehicle passes you, it kicks up a stone and blinds you in one eye. If you have to prove negligence then you will not be entitled to compensation, the driver did nothing wrong. Strict liability says that the possibility of kicking up a stone and blinding someone is an inherent risk of driving, the fact the driver chose to drive the car and put you at risk in that way means that they have accepted they will be held liable if that risk is realised.

Strict liability is nothing to do with criminal responsibility, strict liability recognises that the driver is the one who has introduced the risk to the public space and they have done so for their advantage. The person driving is benefitting from driving, many drivers probably don’t see it that way, they focus more on what they see as the high costs of driving, but of course the cost must be less than the benefit to them or they would leave the car behind and use another means of transport.


The driver accrues the benefits of driving but not all of the costs, some of those costs are externalised as an increased risk to other road users. Those road users do not benefit at all from a driver taking their car to the supermarket, but they do bear some of the risk. This is the moral hazard of driving.


The role of the law and justice system is to attempt to rebalance the costs, so that if a driver does something risky they can be expected to bear the costs of that, several methods are used, fines, removal of the licence to drive or finally imprisonment. However these sanctions are not equal to the risk borne by other users. A driver can kill a pedestrian, yet they are not executed for the killing.


All strict liability does is recognise that if you wish to benefit by taking risks at the expense of others, you should be prepared to pay up (or rather, your insurer should) when that risk is realised, consequently strict liability isn’t limited to cars vs bicycles, it says the larger vehicle, the one owing the greater risk is more liable HGV>car>bicycle>pedestrian.


Strict liabilty is reserved for “inherently dangerous” activities or products. The classic example used is that of a circus: If a lion escapes and injures an audience member, it doesn’t matter how strong the lion’s cage was, or how closely the lion was watched.


The reasoning behind strict liability is to hold whoever benefits from putting others at risk – demolition, transporting hazardous materials, using dangerous machines, etc. – accountable for any damaged caused by that activity. It is not dissimilar to the duty of care owed by employers to their employees, the employer benefits most from putting the workers at risk, therefore the law believes they have a moral obligation to take all practicable steps to keep the workers safe. Yet another example of where the HSE is steps ahead of other branches of government.


4 thoughts on “Road Use and the Moral Hazard

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