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A Case for Presumed Liability in the UK

So cycling is in the news again.

It’s not a happy occasion, as has become the rule lately. A few weeks ago, Transport Minister Jesse Norman announced an “urgent review into cycle safety, following a series of high profile incidents involving cyclists”.

The review will look at whether a new offence equivalent to causing death by careless or dangerous driving should be introduced for cyclists, as well as wider improvements for cycling road safety issues”

The government analysis was prompted by the tragic death of a 44-year-old pedestrian Amanda Briggs, who suffered fatal head injuries in 2016 after colliding with a 20-year old cyclist from London, Charlie Alliston.

This case was peculiar for several reasons, most notably the fact that, in lieu of an appropriate, legally-prescribed offense, the court had to resort to an antiquated (and rather ill-suited) charge of “wanton and furious driving. The charge was historically used against the drivers of horse-drawn carriages - not cyclists.

Now, obviously, these types of cases are pretty rare. According to data, out of 400 pedestrians that die in the UK each year, only 2 are killed by cyclists.

Still, having to rely on such an archaic legal provision should be rectified. I doubt even the most ardent cycling advocates could (or indeed would) argue against the adoption of new, cycling-specific offenses and crimes, that would adequately reflect the roadside status quo.

If a cyclist causes serious injury or death to a pedestrian - rare as that may be - he should be prosecuted to the fullest extent of the law. Simple as that.

With that said, it is strange that these fringe cases seem to be dealt with much more comprehensively, at least compared to the remaining 398 pedestrian and about 100 cyclist deaths, caused each year by undeniably the most dangerous UK road users of all - motor vehicles.

Asleep at the Wheel

This is particularly peculiar given Mayor Khan’s proclaimed vision for cycling, which, among others, boasts the following objectives:

  • Safer streets for the bike. [...] With government help, a range of radical measures will improve the safety of cyclists around large vehicles.”

  • More people travelling by bike. We will 'normalise' cycling, making it something anyone feels comfortable doing.”

Both of these are pressing matters, not just for London, but the entire UK. Pedestrians too face many of the same issues on the road. According to the Road Share Campaign: ‘in 2013, the latest year for which data is available, it was about 19 times more dangerous to walk a mile than to drive the same distance, nearly doubling the difference in danger in the first 13 years of this century.‘

And while a total of 500 pedestrian and cyclist deaths may sound like a relatively low number, it is primarily due to a worrying decline in overall walking and cycling numbers. As Road Share notes: ‘in Scotland and the rest of the UK where there are lower levels of walking and cycling than in some countries, it is particularly important to avoid complacency about low casualty levels which have arisen due to low levels of activity.’

There’s a never-ending debate raging about the underlying and overarching causes of UK’s low cycling rates. Some place the bulk of the blame on the lack of cycling infrastructure, others condemn our car-obsessed culture. Most, however, agree that our laws are just not very cycle-friendly.

A few years back, BBC reported that only 44% of UK drivers convicted for killing cyclists actually go to jail. ‘The average jail sentence was less than two years, while the average length of driving ban was 22 months. For 26% of drivers, no ban was imposed.’

Those are some troubling numbers, especially given that cyclists are the most likely group to be injured on UK’s roads. Apart from 100 cyclist deaths, about 19000 cyclists are injured each year, with over 3000 being seriously injured. Richard Gaffney, a personal injury lawyer, says that ‘the UK is probably the worst place in Europe for a cyclist to be injured by a motorist.‘

All of this leads me to a pretty safe and uncontested conclusion: more needs to be done to protect the most vulnerable road users - pedestrians and cyclists - from motor vehicles. What is strongly disputed, however, is the mechanism which almost every other country in Europe uses to at least partially address this problem - the introduction of presumed liability.

Presumed Liability - What and Why

The government review has once again sparked a conversation (well, more of a shouting match really) about the UK’s refusal to introduce the concept of so-called presumed liability within its legal framework. So what is presumed liability, actually?

Most road fatalities are caused by motor vehicles, and statistically, cars are undoubtedly the most dangerous traffic participant. And yet, whenever a motor vehicle hits a cyclist or a pedestrian, the UK law (civil, not criminal law) places the burden of proof on the more vulnerable road user, rather than the driver. In other words, if I was cycling and got hit by a car, and I wanted to sue for damages, I would have to prove that the driver was at fault, instead of the other way around.

Presumed liability switches the burden of proof in road traffic accidents - from the cyclist/pedestrian, to the more dangerous road user - the driver. It does not mean that the driver is automatically found to be at fault, nor does it abolish fault for any party. It simply puts the onus on the driver, rather than the person he collided with.

"There is disparity between the damage brought to the collision and the protection provided by the law"

This might not sound like a big deal, but there are several reasons why it often ends up deciding the outcome of the suit. For one, as Richard Gaffney notes, “establishing liability is often a difficult challenge, especially if the cyclist is unable to give evidence due to the nature of their injuries and/or if there are no independent witnesses.”

In other words, if the cyclist suffers a concussion as a result of the crash (as he is certainly more likely to), he could very well be unable to recall the details of the accident. And if there were no witnesses to the collision, this makes it extremely hard to prove the driver’s fault.

Another reason why presumed liability seems fairer is the fact that, due to compulsory third-party insurance, motorists have the benefit of full representation by their insurer, which will deal with any compensation claims against them. On the other hand, pedestrians and cyclists not only need to prove fault - they also need to seek out legal representation, exposing them to potentially great financial risk.

In a nutshell, as Road Share notes: ‘It is unfair that the vulnerable road users who cause the least harm are also the least protected by the law. There is a disparity between the damage brought to the collision and the protection provided by the law.[...]There is an intrinsic risk associated with using a motorised vehicle, which is not currently reflected in the law.‘

Against the World

"If more and safer walking and cycling is wanted, then Presumed Liability appears to be a key condition for success"

At the moment, there are a total of 5 countries in Europe without some form of presumed liability implemented: Malta, Cyprus, Romania, Ireland, and the UK.

And even Malta seems to have had enough: “Malta and the UK are out of step with the rest of Europe because they do not operate any form of liability rule for vulnerable road users.” reads an article in the Times of Malta. “ the purpose of the law is to introduce an element of fairness in answer to the inequality of damage after accident between a motor vehicle and a vulnerable road user.”

But there’s more to presumed liability than just following suit. So far, it seems to be a crucial ingredient in hitting a country’s cycling objectives:

All countries in the world with both high levels of walking and cycling and low casualty rates have some form of Presumed Liability in place.” says Road Share. ”This does not prove that Presumed Liability legislation is necessary in order to achieve higher levels of safe walking and cycling, but it does indicate a strong association. [...] If more and safer walking and cycling is wanted, then Presumed Liability legislation appears to be a key condition for success.”

Many countries have taken it even a step further, almost introducing strict liability for road accidents. In France, for example, the non-driver victim is compensated regardless of fault, save where inexcusable fault on their part was the sole cause of the accident’.

In Netherlands, the closest Europe has come to a cycling utopia, ‘a cyclist involved in an accident with a motor vehicle will almost certainly recover damages.’ Similar rules on presumed liability are already in place in Spain, Denmark, Germany and Sweden, as well as India, Bangladesh, Vietnam and China.

Going Nowhere, Fast

So why is the UK so stubbornly against presumed liability?

From a driver’s point of view, I think it’s at least partly due to a misunderstanding of what presumed liability actually means. It seems many think it gives the cyclists and pedestrians a blank check; a freedom to do whatever they want on the road and get away with it.

Again, presumed liability does not abolish fault (unlike strict liability) on either side. It only places a burden of proof on the driver, as the most dangerous road user. As such, a cyclist can not get off scot-free if he causes an accident. He’s still going to be held liable, as long as the driver can prove fault. It in no way absolves the more vulnerable road users of fault.

On the government’s side, the argument we keep hearing is that introducing presumed liability would devalue one of the fundamental principles of UK law: innocent until proven guilty.

As Times of Malta points out: ‘The short answer to this is that this is a law of civil liability and not a question of guilt.’ In other words, presumption of innocence is an institute of criminal, not civil law, and the standard of proof in a civil case is generally lower than in a criminal one.

That seems pretty straightforward to me as a layman, though let me know if there’s anything that I’m missing.

Also, one may assume that the insurance companies would be vehemently against the introduction of presumed liability. Oddly enough, (once again according to Road Share) the French Federation of Insurance Companies, or the FFSA, is a staunch supporter of the Loi Badinter (presumed liability) law.

At the FFSA, we believe that it has had a positive effect because the law is a law of indemnity rather than liability. Consequently, vulnerable road users are very quickly indemnified without going through the Court...So, in fact, after the implementation of the law, the road traffic accidents decreased. This is why insurers support these safety programs.”

So there you have it. Presumed liability appears to be more fair, is favored by most European countries and the insurers, and seems to be essential to achieving high levels of walking and cycling.

And until it’s implemented in the UK, Mayor Khan’s and similar cycling visions are likely to remain a mirage.

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