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news
States Chamber, Jersey (public domain)Jersey to consider introducing presumed liability to make roads safer for cyclists
Ministers in Jersey are considering whether to adopt the principle of presumed liability in civil law in relation to road traffic collisions, as well as possibly bringing the island’s criminal law for road traffic offences more into line with laws in England and Wales.
Presumed liability in road traffic collisions has been adopted by all EU member states other than Cyprus, Ireland, Malta and Romania, and cycling campaigners in the UK, including British Cycling policy advisor Chris Boardman, have been calling for its introduction for several years now.
> Chris Boardman calls for presumed liability law to help get more people commuting by bike
The concept of presumed liability draws up a clear hierarchy of road users, meaning that following a road traffic collision, the less vulnerable road user is considered to be liable, unless they can establish that the other party was at fault.
For example, the driver of a motor vehicle would automatically be held liable in an incident involving a cyclist, as a bike rider would be in a case where a pedestrian were injured.
Jersey’s confirmation that a review of current legislation will be conducted follows a petition launched by the mother of a teenager who was seriously injured when a motorist knocked him off his bike.
Freddie Dentskevich, then aged 14, was hospitalised following the crash in March 2014. Police interviewed the driver, but did not refer the case for prosecution, reports ITV News.
In the petition, which has attracted 3,698 signatures, Joanna Dentskevich said:
Our 14yr old son Freddie was left for dead following an horrific hit and run cycle collision. The driver drove on and later used a little known loophole in the law to evade justice.
This is just one example of a long history of road traffic collisions where, under the current Jersey law, the vulnerable road user has had little to no protection which often allows perpetrators to avoid any accountability and continue to drive carefree on our island roads. This loophole also undermines the abilities of the Police to conduct proper investigations. The States Assembly should urgently commission a review of the Laws governing the rights and protections of all vulnerable road users with a view to making it safer to cycle, walk and horse ride on Jersey’s roads.
In its response, which can be found on the page of its website where the petition is hosted, the Government of Jersey said that “there is already work underway to try to make the roads safer for all users, including road improvements to create space for cyclists, [to] ensure consistency in speed limits, the promotion of consideration for other road users and the prioritisation of road users who are not in cars, and work to encourage people to use active travel instead of cars.”
It said that “this work will hopefully make it safer for cyclists, walkers and horse riders, and it may reduce the number and severity of collisions, but it will not stop them.”
There is sometimes a misconception that the concept of presumed liability in road traffic collisions extends to criminal law as well as civil cases.
After explaining the difference between the two branches of law, the government’s response underlined that “to incorporate presumed liability into criminal law would run contrary to the fundamental principle of criminal justice that a defendant is presumed innocent until proven guilty,” which it pointed out “is enshrined and confirmed in the European Convention on Human Rights.”
As far as the criminal law is concerned, said that “While the UK and Jersey road traffic laws are worded differently, they place the same duties on drivers and in effect, provide for the same offences and defences,” but added that “when the law is next revised,” it would request that consideration “be given to amending the wording to more closely reflect the UK’s. This would not alter the principles of the offences or defences.”
Turning to civil cases, it said: “In some jurisdictions (but not Jersey), presumed liability means that, where a more vulnerable road user suffers injury or loss of life in a road accident, the less vulnerable road user is presumed to be to blame, unless they can prove otherwise.
“Presumed liability for road traffic collisions is not part of Jersey or UK law, and any injured party seeking damages would have to prove that the other party was to blame.”
Highlighting how its Sustainable Transport Policy I(SGTP) aims to encourage active lifestyles including by removing barriers to people cycling due to concerns over road safety, the government added: “The success of the policy will depend on addressing this and other concerns. It means that we are committed to reviewing the law, and consulting the public, in order to make the strategic choices needed encourage changes in behaviour.
“The STP will include consideration for how new liability laws could encourage change. That will be as part of a balanced package of measures to ensure that increasing active travel is matched by improved safety and protection for vulnerable roads users, such as cyclists.”
Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.
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37 comments
This is all rather academic- I suspect the cyclist-hostile UK police are strongly resisting the idea of presumed liability- about as strongly as they refuse to acknowledge the concept of no-blood-on-the-road close-passing
The police would have little to do with it. This entails establishing liability, which is a civil matter.
This is a good idea. But all cyclists should therefore have to pass some form of CBT to be allowed on the roads.
From what age?
Secondary school, like in Holland.
Presumed liability also applies to pedestrians. Should they pass a test too?
This seems to be another hidden cost of Brexit for cyclists. Well done Europe!
Eh? Even as a rabid remainer that's a bit of a stretch given there were 2 or 3 EU countries that don't have presumed fault...
there were 2 or 3 EU countries that don't have presumed fault...
And a lot that do, versus 0 of the 4 UK big countries.
and if the UK were still in the EU, it would be 3or4 that don't. Leaving the EU is not the reason why we don't have this. It's not an EU law and we did not have when we were members.
It’s interesting that they say that they cannot introduce presumed liability for the criminal side of the law as this would upend the principle of innocent until proven guilty but in some parts of law, this principle is already ignored to allow the protection of vulnerable people. As an example carrying a knife in a public place. If the police catch you with a knife in a public place you have to prove you have a legitimate reason to have it. It isn’t that much of stretch to say that if you kill someone driving you have to prove you weren’t doing anything wrong especially as dashcams are now so cheap. You make a choice to drive, you accept the responsibility to prove your actions didnt result in the death of someone
It isn’t that much of stretch to say that if you kill someone driving you have to prove you weren’t doing anything wrong especially as dashcams are now so cheap.
The crims will find a willing audience in the police for their claims 'it wasn't working. guv, honest!'- especially in Lancashire with it's radical policy of insisting on confirmatory video from the offending vehicle even when the cyclist's video is perfect. I repeat this story yet again and to the groans of regular readers because I have today sent in the documents to the PCC showing this along with other police failings such as not prosecuting red light crashing. Let's see if the PCC has improved!
You don't have to prove anything as a defendant in a criminal trial.
If you were arrested for carrying a knife in a public place and when it came to trial the prosecution offered no evidence you would be found not guilty by default. The burden of proof is always on the prosecution.
Under presumed liability the burden of proof is on the accused. If, in court, no evidence were presented against you other than the accusation, you would still be required to prove the accusation was untrue.
It's fundamentally injust.
Except that evidence does still have to be presented against you. The evidence is that you collided with the other road user.
That isn't evidence against you.
There may be evidence that a collision took place. That is a completely different thing.
Under presumed liability no evidence regarding the circumstances of the collision would need to be presented.
There would not need to be a single shred of evidence that you were at fault.
You would be required to prove your innocence.
It's dystopian.
It wouldn't just be drivers affected either, cyclists would automatically be considered liable in any collision with a pedestrian.
As the operator of a potentially dangerous machine in a public space, you should be operating it in such a way that prevents the risk of a collision, except in exceptional, unforeseeable conditions. If you collided with other road user, that is prima facie evidence that you weren't operating it carefully enough, unless it can be demonstrated that something unforeseeable happened.
It really isn't evidence of anything.
What percentage of collisions between bicycles and vehicles were entirely the fault of the vehicle driver?
Unless it's pretty much 100% then your argument fails at the very first hurdle.
Which vehicle? A bicycle is a vehicle.
[Assuming you meant motor vehicle...]
No, because
a) it's not a question of fault, it's a question of liability. Whether any fault lies with the bicycle rider is irrelevant - if any fault lies with the motor vehicle driver, they are liable because they present the most danger, and so should be taking the most care.
b) it's open to the motor vehicle driver to demonstrate that the circumstances were unforeseeable (that the bicycle rider did something entirely untoward), in which case they would no longer be liable. In fact it's likely thatit would be framed in such a way that if they can demonstrate that the bicycle rider negligently contributed to causing the collision, then liability would be reduced.
Just to clarify, are you suggesting that liability and fault should not be linked?
If so, that is a rather unique approach to civil justice.
From the statistics I've seen - motor - vehicle drivers were wholly responsible for the collision with a cyclist approximately 60-70% of the time.
So that leaves approximately 1/3 of all collisions in which the motorist would not be wholly at fault. Approximately 1/5 collisions were wholly the fault of the cyclist. That doesn't seem to tally with an 'unforseeable circumstance' by any definition.
https://www.thetimes.co.uk/article/crashes-involving-bikes-mostly-driver....
I'm saying that just because fault may be (for example) 50:50, that doesn't mean that liability should be, because the responsibility on the operator of the potentially more dangerous machine is higher. They have chosen to use a machine that presents a higher potential danger, and they should assume a higher duty of care as a result. If they have failed to fulfil that duty of care then the penalty should be higher.
That's a very different proposition to presumed liability.
An HGV driver clearly has a greater duty of care towards a cyclist than the cyclist does towards them.
I've no issue with that being a factor in attributing damages but it should not be used to apportion blame.
No-one's proposing it should be used to apportion blame. Blame =/= liability.
We seem to be going round in circles here.
Liability is directly related to blame.
If you're driving an HGV and a cyclist crashes into you through absolutely no fault of your own you would not currently be liable for any damage caused to the cyclist.
Under presumed liability you would unless you could prove you were not at fault.
There is a direct connection between fault and liability.
In the absence of evidence you are treated as if you were at fault.
Yes, because we fundamentally disagree on this:
Not sure there's any way to resolve that, really, so this is probably a fruitless discussion.
You're refusing to address the fact that blame is an important part of the 'presumed liability' process.
You're only found liable under presumed liability laws if you can not prove that you weren't to blame.
Trying to pretend therefore that blame and liability are not intrinsically related is nonsensical.
And you refuse to accept the difference between civil liability, and criminal culpability. we're talking about being liable for costs, which is covered by your insurance. You ain't going to jail..... unless of course it can be proved that you were culpable, and even then the chances are dead against.
Get a dashcam and a black box and you'll have no worries. Should presumed liability be applied, which it should and probably eventually will, it will be the sensible thing to do in any case. It will be a built-in cost of driving, just like MOT, insurance, petrol etc
Also drive safely, and you are extremely unlikely to be involved in any collision with a vulnerable road user.
If you are unwilling to do at least one of the above, why not consider your position as a driver? No one is forcing you to drive.
I'm not refusing to accept it. I'm positively denying it. As I say - we're talking past each other, which is fruitless.
Do you accept that in a case of presumed liability you will be required to prove you were not at fault?
(Assuming you are the less vulnerable road user in said case)
No. That puts it backwards. You may be able to reduce your liability if you can demonstrate that another party has significantly contributed to the harm caused.
And if you were able to prove that the other party were entirely responsible for the accident?
What would your liability be in that situation?
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