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OPINION
Cycling and the law: would presumed liability make roads safer for cyclists?
Fri, Feb 23, 2018 12:00
29
South Circular Road lorry driver close pass (via Evo Lucas on Twitter).jpgWhat does the UK have in common with Ireland, Cyprus, Malta and Romania? No, this isn’t a blog about the Eurovision song contest – at the time of writing, these are the four other European countries that don’t have a system of presumed liability to protect vulnerable road users like cyclists and pedestrians.
Following my last blog – which covered close passes – a number of people expressed their frustration that we do not have the benefit of a presumed liability system in the UK. Here are my thoughts on the subject and how a law change might improve things for cyclists.
What is presumed liability and how does it differ from our current law?
The UK is one of the few European countries not to have presumed liability (“surprise, surprise,” I hear you say). So, as it stands, if we were to introduce presumed liability it would see the burden of proof shift from the injured cyclist to the motorist.
At the moment, if you have an accident on your bike in the UK the onus will be on you to prove civil liability (on the balance of probabilities) to bring a claim for damages – it is the cyclist’s responsibility to prove that the motorist was at fault for causing it.
A system of presumed liability means that, in the event of an accident, the starting point would be to assume that the motorist is at fault. The motorist will be held responsible unless they can prove that the cyclist was obviously to blame – riding through a red light into a collision, for example.
How could the introduction of presumed liability improve things for cyclists?
There are a number of ways that presumed liability could improve things.
Crucially, by shifting the burden of proving fault from the cyclist to the motorist, cyclists would find it much easier to achieve a just result following an accident. After all, it follows that the most vulnerable road users should be afforded the greatest protection. The recognition of causative potency already goes some way towards this.
For example, a severely injured cyclist might be unable to give evidence or recall how an accident happened. In the absence of independent witnesses, the case of the injured cyclist might fail and a dangerous driver may remain on the roads. If presumed liability was in place, this would be less likely to happen. Furthermore, cyclists wouldn’t have to wait as long to be compensated for financial losses, treatment costs, injuries or damage to equipment, as cases would be much more straightforward and cheaper.
Additionally, it is likely that our roads would become much safer to ride on. I’m sure many motorists would be much more careful, both in the sense of having an increased awareness of the danger they pose and out of fear that their insurance premiums could increase if they collide with a cyclist.
As an added bonus to the general public, more caution and awareness of cyclists would likely encourage more of a cycling culture and improve conditions for cycling. More cyclists on our roads would have huge knock-on effects for congestion, public health, pollution, empathy between motorists and cyclists, and so on.
My hope is that, if presumed liability was introduced, the change could be used as part of a blend of other (more effective) measures to reduce cycling deaths and improve road safety. My preference would therefore be for greater driver education, good quality infrastructure and more significant consequences for motorists who kill and injure vulnerable road users.
What are the arguments against strict liability?
Of course, when the subject of presumed liability is broached with non-cyclists, there are a number of common complaints, including:
-
It’s “anti-motoring” i.e. unfair for the burden of proof to be shifted from cyclists to motorists.
- Insurers would probably object on the basis they may have to pay damages in more cases as it would be harder for them to defend claims on liability. There is a risk that motoring insurance premiums would increase.
- It will not improve driver standards around cyclists because often the cause of poor driving is impatience or aggression in the moment.
- It encourages bad cycling.
What should happen?
Perhaps the lobbying power and influence of motorists and insurers outweighing the growing voice of cyclists in the UK is the reason we’re miles behind the times in not having presumed liability in the UK. Putting aside these arguments against presumed liability, I really don’t see the justification for continuing as we are.
Clearly, presumed liability is not an overnight fix for improving cycling safety. I do believe, though, that it would change the psychology of drivers and make clear the consequences of a collision with a cyclist. This would only make roads safer for cyclists.
I suspect that if cycling groups and campaigners had the resources of the motor insurance industry, and the apparent power to influence policy, lobbying for this law change would have been successful before now. My hope is that the powers that be see sense and make the necessary changes to the law.
• If there are any particular cycling legal topics you’d like me to cover in my next blog, please drop me a line on Twitter @hambleton_mark to let me know.
After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.
Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at RWK Goodman.
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29 comments
I think any change to presumed liability would have exactly the desired outcome. Motorists often take chances when overtaking and generally driving around cyclists. This would make any driver think twice about taking a chance, instead encouraging patience and safer passing. Most drivers don’t have dash cams so removing the he said/she said arguments that often occur after collisions and putting the onus on the driver to prove that they were not at fault would definitely change behaviour and encourage more care.
@rollotommasi: it's another cost, isn't it?
I agree with you that drivers take chances with cyclists' lives despite all the costs they already face. Of course, we're only talking about a subset of drivers - most are already alert, and competent, and reasonable humans, or scared of the consequences, to take cyclist safety seriously enough.
To tackle the remainder, more police would be a deterrent. Stricter penalties. The latter are, apparently, imminent, but are no good without sufficient police numbers and attitude to enable prosecution. This government would rather launch a review on dodgy cycling based on one high-profile case than hire more police.
So, what's left. I think you're underestimating the protectiveness to their car that some people feel. In addition, I think the threat of a civil penalty could definitely act as a deterrent to some people. Hit a cyclist at the moment and who knows what will happen. The assumption is that it will be lost in some insurance wrangling. I would imagine that isn't a deterrent at all. Drivers, of course, see a collision with a cyclist completely differently from the cyclist. The cyclist is thinking 'KSI'. The driver is not - at least on their part - as they absent-mindedly clip your handlebar. They're entirely different perspectives, which is why I'm treating them as such when I project responses to presumed liability. Give the driver for whom the consequences are not already enough, another, clear, consequence. Why wouldn't 'think ££££' work?
If the position became 'hit a cyclist and not only will you be assumed to be responsible for the damage to your car, but you'll also be responsible for writing off their (possibly expensive) bike, and any personal injury' - then yes, I think that's a deterrent. To some people, the types who might drive how they damn well like if they think there aren't criminal penalties, or that they won't be enforced, the threat of being pulled up for it via other means, and hit in the pocket via future insurance premiums, I'd expect that to make them think twice.
I also think it sends a valuable message as to who we see as vulnerable road users and how they should be treated. Cyclists are demonised at the moment by some trollumnists, any excuse to show intolerance is taken (the jogger-pushes-woman-in-front-of-bus episode didn't take long for some rentagobs to stick the boot in to joggers AND cyclists) and to some drivers cyclists are a PITA that shouldn't be on the roads. Put the message out, backed by law, that cyclists should not only be on the roads but protected, and in return they're expected to look out for pedestrians.... What harm can that do?
These seem to be the two points we disagree on. There'll be little-to-no data to settle it either way, and it isn't a panacea. I'm all for picking battles appropriately, but there needs to be some battles nonetheless, if you think the status quo is a bit shit. Neither Bill nor you have suggested alternatives to focus on.
I think it's one potential weapon in 'our' arsenal, and one that might have traction. Personally, I'd prefer learner drivers to have to incorporate cycling training into their training, and all drivers having to graduate through a) some sort of cycling proficiency and b) a motorbike license before a driving license, but there is zero chance of that happening, so I'll spend zero effort on trying to effect it.
Davel - I'm genuinely interested to understand how you think presumed liability would have "cultural clout".
I just don't see how it would. There should already be enough to deter drivers from dodgy driving. Depending on their mentalities, it might include not wanting to harm other road users. Not wanting to face police action and prosecution for dangerous driving. Not wanting to dent their beloved car. Not wanting to have to halt their journey to deal with the aftermath of a collision. Not wanting to deal with paperwork and stress after a collision.
All of these are reasons which will have much more direct impact on the lives of these drivers than a change to a default position to liability for insurance purposes. So if they aren't enough to snuff out the worst behaviour from drivers, then I don't see what possible difference presumed liability would make.
I note how you say that cyclists don't take risks on a bike "based on financial security after-the-fact". Your reason for saying it won't have a bearing on carefree cyclists' behaviour is the same as my reason for arguing it won't have a bearing on dodgy drivers' behaviour. Which gives me more reason to question your view that presumed liability would have "cultural clout' on drivers.
I agree with you that any additional risk-taking by cyclists would likely evolve over time than occur overnight. But, the first thing you need for culture change is awareness about what that change is about. And, at least at the moment as the issue is being debated, I see much more awareness of presumed liability as an issue from cyclists than from drivers.
Davel - I agree with Bill. I actually think that to believe that presumed liability would lead to a shift in attitude is simplistic.
You're confusing civil law with criminal law. Proposals I've seen for presumed liability only cover civil law - they wouldn't make any difference to police action or criminal proceedings.
As for civil law, presumed liability would have no direct impact on how drivers behave. All it would do is change working assumptions for insurance firms for the purposes of civil liability and damages after a collision. And even then, the only time a driver's insurance firm would likely settle quickly would be if there was no possibility of contributory negligence by the cyclist - which arises in a minority of cases. Drivers might not even be aware of presumed liability until they saw correspondence about liability after an incident and/or an increase in their insurance premium next time around.
There's even a chance that presumed liability could make the risk of collisions more likely. That minority of our fellow cyclists who already exercise less caution in their cycling than they should might be tempted to play even more fast and loose with interpretations of road traffic law and the Highway Code, in the expectation that drivers were obliged to look out for them. Safety is most likely when everyone sees it as their own responsibility.
I'm not you know.
Civil liability could be a major rebalancing. It isn't everything, but it would have cultural clout. In the absence of all the other stuff that'd be great but just isn't happening, it would send a message.
It could make cyclists more carefree? Behave. You don't take risks on a bike based on financial security after-the-fact. You take risks based on physical safety. If roads get safer, maybe there'd be some more risk-taking to 'fill the void', but right now there are too many risks posed solely by idiot drivers who face virtually no comeback.
No one put off from cycling on the road by fear of dangerous driving will change their mind because presumed liability alone is introduced.
It might help in the aftermath, which would be welcome, but most of us would prefer to skip the incident altogether.
There are better things to spend limited campaigning resources on.
Simplistic.
The aim of its introduction wouldn't be to make the insurance mop-up cleaner - the aim is to set out that the presumption is that the more vulnerable party is, by default, not liable. It's a key shift in attitude - that's the aim.
As BTBS argues, the reality, at the moment, is that that is definitely not the case - drivers kill and maim more vulnerable users with relative impunity. It takes an extremely serious case - the 3 lads killed at a bus stop case hit the courts today - for serious sentences to be dished out. While I agree that's the case, I disagree with the conclusion - it's for that very reason that presumed liability is needed, for me. We can't rely on the justice system to deter, so it's the best shot at an overnight cultural shift. The justice system won't just shift its driver bias of its own accord. Proof? Well, it isn't...
Now, in practice, in the UK, it might not work out like that. But it's going to take more than your opening line to change supporters' minds. "No one put off from cycling on the road by fear of dangerous driving will change their mind because presumed liability alone is introduced." That seems to be based on a view of presumed liability occurring in a vacuum. What's that based on?
And what are these better things to spend limited campaigning resources on?
I bet they're already taking up those limited campaigning resources and bearing little fruit, aren't they?
Presumed liability only works if the powers that be and the police actually enforce it, as it stands the current rules and laws should be enough but the police are almost as much motor centric as joe public and the court/justice system is currently run by motorists who can't see or don't want to see or accept the failings in their kind so won't and don't apply the law properly.
The justice system and those making the decisions/rulings/sentencing even ignore the most blatently obvious scenarios of criminal driving, like driving into the back of someone to such an extent they are thrown into the air and killed and then the driver carry on obliviously.
The police currently ignore the law far too often, they still attempt to find ways to absolve motorists from their errings and indeed press to blame victims instead.
presumed liability will not change that, in fact presumed liability goes right against our adversarial system completely.
We need to change how the system works with regards to prosecuting and judging motorists and the charges and from that penalties when (or should thst be if) they are found guilty.
Even if presumed liability is there motons in juries will still find killers not guilty and judges will still fail to advise and guide juries plus the CPS will still be inept as ever.
There's already presumed liability with respect to people on bikes and pedestrians more often than not, Charlie Alliston case is a prime example. He was charged (& found guilty) despite the fact he did lots of things to avoid the collision, braking by around half his speed, swerving, giving audible warnings and the deceased made many errors in judgement, none of which seemed to have effected who was presumed to have the greater responsibility.
If he had died and she survived he would have being blamed for his death and 'wanton and furious' would have still being mentioned and she would have got off scot free.
My Swiss nephew isn't a great cyclist - he only does so because its the easiest way of wizzing around the small town where he lives. Thankfully, extensive cycle lanes and strict liability means he can do so in relative safety (certainly doesn't bother with a helment or high-viz). Before cycling down to the lake to meet up with his makes for a swim, he explained with glee how drivers are slow right down and give cyclists a wide birth because the repercussions for colliding with a cyclist are so punitive. Not suprisingly, incidents of collision in his town are very low.
Incidentally, I know he's not a great cyclist because the Swiss Police have busted/fined him so many times for infrigements like riding around with dodgy lighting, jumping red lights or riding after a beer.
And that's exactly how the deal should work.
Presumed liability is surely only a method to enforce the Highway Code and safe driving. One of the issues as a cyclist on the roads is car drivers taking a liberties around you and not allowing for the innate vulnerability. If drivers are made to think more clearly about those things, roads will become more communal & pleasant places to be, for everyone!
@Davel - I totally agree.
Presumed liability should work to favour the smaller/slower traffic in lieu of other evidence, so it should favour pedestrians over cyclists, cyclists over cars and cars over lorries.
"presumed liability is not an overnight fix for improving cycling safety"
Honestly, I think it's the single closest thing to an overnight fix we could do (which is why I don't see it happening).
Regarding the Alliston comments - I assume the liability would also favour pedestrians vs cyclists? In theory at least, wouldn't we expect the positive effects we envisage among drivers to also apply to cyclists WRT pedestrians?
I have been banging the drum about presumed liability for a couple of years now. I get the usual anti cycling drivel from those at work who are embedded in to driving culture.
And this is where the problem lies. The driving culture.
Much like the current 'movement' in the USA surrounding their gun culture will dry up to nothing due to the financial and subsequent political might of the 'pro-gun' lobbyists. Any presuure to change UK cycling laws for the benefit of those using two wheels will be drowned out by the mighty car groups bleating on about how they will be adversely affected.
In an age where we are being bombarded about the state of our health and the associated knock on costs to the NHS you would think that a government would have the foresight to promote and encourage an activity that has benefits that reach beyond that of personal health.
Whilst in principal I agree, there does need to be some caveats, for example cyclist adhering to Highway Code. I say this from the perspective of a driver whose car was hit by a numpty riding the wrong way down a one way street in Newport, South Wales.
Presumed liability is only supposed to take effect when there's no other evidence, so as long as there's some evidence of the numpty crashing into the car, then that's not a problem.
Personally, I take the view that cyclists should be allowed to go the wrong way down one-way streets as long as they take care.
Appreciate your clarification. I disagree about cycling down a one way street however careful, as pedestrians tend to look only the one way, if at all, think of the Alliston case.
Taking care and Alliston don't belong in the same sentence unless there's some negatives involved.
I would expect a cyclist going the wrong way down a one-way street to be especially aware of pedestrians that may step in front of you. It's not usually difficult to avoid pedestrians, so I really don't see it as a big problem. Alliston was an arse and should not be used as a general indicator of how to behave on a bike.
Pedestrians are not always easy to account for, especialy if they are not looking in your direction, have headphones in and are joggers. They move at speed that may be faster than you have time to react (especially if they appear from behind a parked car or a side alley), they cannot hear your shouts or bell and are not looking your way because traffic shouldn't be there.
The answer is to cycle according to the conditions. If you're not confident that you can anticipate/react quick enough then you need to slow down or risk hitting someone.
I would have thought that most cyclists would be easily able to avoid a pedestrian unless the cyclist wasn't paying any attention. Maybe I'm unusually observant or have abnormally quick reactions, but I've never had any problem avoiding pedestrians - it's just annoying when you're progress is disrupted by them.
I would have thought that most cyclists would be easily able to avoid a pedestrian unless the cyclist wasn't paying any attention. Maybe I'm unusually observant or have abnormally quick reactions, but I've never had any problem avoiding pedestrians
[/quote]
I’ve been taken out by peds on three occasions, all times with me sub 10mph. Not a chance with any of them. Last one just burst into a run into the road at a right angle.
You’ve been lucky if you regularly ride in a city.
Mainly around Bristol, but I think most of the peds are too lardy to break into a run.
I disagree with you... I think strict liability should be applied in all situations. In the example you outline, it would become very quickly obvious that the rider was being a 'numpty' and therefore under strict liability laws, thte car driver would have no case to answer... indeed they would be free to chase compensation for damages from the cyclist.
Strict liability does not mean cyclists get a get out of jail free card, it simply means that the assumption of responsibility is placed on the larger vehicle, until demonstrated otherwise.
However, going back to the case you mentioned, other than riding the wrong way down a one way street, how was the cyclist acting like a numpty? i.e. were they speeding, were they not looking where they were going, pulling a wheelie etc etc?
Basically I am asking, what was it they did that caused the collision?
If it was purely riding the wrong way down a one way street, whilst stupid and numpty behaviour in its own right, it doesn't (IMO) give a car driver carte blanche to drive into them (however tempting).
FWIW, I saw the distracted lout and had stopped, he hadn’t got a care in the world...until he hit my car... and then the road.
I can't see any major downside to presumed liability.
Car drivers won't like it, but if they're worried about cyclists jumping red lights and throwing themselves under cars, then the motorist just has to fit a dashcam to protect themselves.
I'm all in favour of motorists using dashcams to make it a lot easier to figure out who is to blame for a collision. It should lead to lower insurance premiums as the insurance companies can just watch the footage and make a decision without having to go to court etc.
I agree in principle (in terms of pl as part of a changing cutlure) but I'm not sure I understand the argument that it would make the roads safer for cyclists. MGIF drivers clearly aren't thinking in rational terms when they squeeze a cyclist to get to the lights 5 seconds faster to then be overtaken by same cyclist - why would they be thinking rationally about prospective penalties?
Have you ever been in a situation where presumed liability might have helped you?
Do you think the law should be changed to provide greater protection for cyclists?
Mark - I don't accept the premise that presumed liability would "provide greater protection for cyclists". It only deals with how cases are handled AFTER an accident/incident occurs. It does nothing to prevent accidents from occurring in the first place. I notice you've provided no evidence to substantiate your assertion, which I may say is not what I'd expect from a lawyer!
I'm also not convinced by your claim that "cyclists would find it much easier to achieve a just result following an accident". That may be true in cases when a driver is clearly 100% culpable for an accident, but in reality how often are there delays in those cases now anyway? In any case where the cyclist is or may possibly be either wholly or contributorily negligent (which appears to be the majority of cases), the driver's insurance company is surely going to pursue its client's (and its own) interests and challenge liability.
I should add - why does this matter? Because we need to make cycling safer. And the more effort we spend on calling for changes that really don't help the situation, the more we crowd out calls for changes that might actually make our streets safer for cyclists - such as infrastructure.
Please don't bleat on about infrastructure. So some dashes of paint on the tarmac 600 mm from the curb are going to improve my safety, I really don't think so. My commute includes towns, villages and rural lanes. There will never, ever be 'infrastructure' on my route and the rural lanes are the most dangerous parts of the trip sadly.
Give me presumed liability any day, even the motons would catch on to that one quite quickly.