I remain unconvinced there is a systemic problem with civil claims by cyclists.

Ah – just a systemic problem with criminal cases against drivers for hitting cyclists then?

The charity Roadpeace have produced an excellent briefing.

RoadPeace believes the adoption of a stricter liability system is essential not only for fairness and justice but also for the increase in active travel critical for public health and environmental needs.

1. What is it?

Under our current system, vulnerable road users (pedestrians and cyclists) injured by a driver (or their families if they are killed) only qualify for compensation when it can be proved that the driver was at fault.
Under a stricter liability compensation system, the burden of proof is reversed. Injured pedestrians and cyclists are presumed to qualify for civil compensation.

2. Why do we need it?

While we all share the road, we do not share the risk. In 2010, there were nearly 29,000 collisions between cars and cyclists and pedestrians, resulting in 5,130 killed or seriously injured casualties. Of these, 51 (1%) were drivers or car passengers, with only one fatality.

Even when pedestrians and cyclists survive, they can be left with life-changing injuries, and loss of their mobility or their capacity to work, sometimes permanently. The frequency of shock, concussion and head injury also means that they often lose any recollection of the collision. This makes them heavily reliant on the identification of witnesses who are willing to testify, if driver error is to be proven for a civil claim.

The adoption of stricter liability would reduce the unfairness of outcomes and should encourage the insurance industry to invest in reducing the threat posed to vulnerable road users as they already have with occupant safety and vehicle security.
Stricter liability would also help create a safer road environment, promoting active travel. In a recent report for the National Institute for Clinical Excellence, on Making walking and cycling normal, changing the civil legal liability system was identified as a key measure (Pooley, 2012).

3. What it is not?

• It is not a blank cheque for cyclists and pedestrians.
Adult pedestrians and cyclists who are shown to have caused or contributed to collisions could have their claim rejected or reduced. Pedestrians darting out from behind parked cars or cyclists running red lights would not have to be compensated.

• It is not a threat to fundamental British liberties

Innocent until proven guilty is a principle shared by all common law and many civil law systems but it applies to criminal prosecution, not civil compensation. Stricter liability only applies to civil law.

4. Which countries have it?

Most countries in the world have a civil liability system whereby pedestrians and cyclists are assumed to qualify for compensation. In Europe this includes Belgium, Denmark, France, Germany, Netherlands, and Spain. In Sweden all casualties qualify for compensation. Stricter liability is the norm outside of Europe and can be found in Asia, including India, Bangladesh, Viet Nam. It was introduced in China less than 10 years ago.

Besides Britain, the other European countries that operate under a fault based system include Ireland, Malta, and Portugal.

5. How does it vary between countries?

In some countries including France and the Netherlands, children, older people and those with impairments will always qualify for compensation, no matter what their actions. Mistakes by them would not affect their right to compensation. RoadPeace supports this principle.

6. Who benefits?

All those who would previously been denied compensation due to lack of proof of driver fault.
Children and older people stand to gain the most. The European Child Safety Alliance scores countries performances and having a compensation system which puts the responsibility on drivers is a key indicator of a good system.

7. Who pays for it?

In collisions where the driver was prosecuted for causing the crash, the driver’s insurance company would be responsible for compensation.
In those cases where the evidence is lacking and it is unclear who is responsible, then the cost would be shared amongst motor insurance policy holders – a system already used for damage caused by uninsured or hit and run drivers.

8. Who else wants this?

Cycling organisations such as CTC and LCC have long appreciated the importance of stricter liability. Living Streets also supports it. The Green Party endorsed stricter liability at their Spring 2012 party conference. Any organisation campaigning on behalf of children and older people, active travel, or the environment should also support it.

9. Is it going to happen soon?

There was an Early Day Motion on stricter liability (EDM 1393) in 2011. Mike Penning, Road Safety Minister, has stated that the government is “not convinced that the introduction of such a system for road traffic incidents would be for the benefit of road safety and it could be unfair to responsible road users”. And so we are left with a system that is unfair to vulnerable road users and undermines active travel promotion.

For further information, see http://www.roadpeace.org

Aracer, as you know our views on that differ a bit, but yes we don’t “catch” enough bad drivers whether they cause accidents or not and we don’t prosecute enough of those who are identifiable. However very few people set out to cause accidents so you need to change mindsets which isn’t achieved by changing the consequences of an event that you believe will never happen to you.

I’m not sure if the recent change to fixed penalties for s3 will make this better or worse. Likely the police and crown will prosecute more cases because it is easier but the penalties will be at the very bottom of the scale which means some people will get off lightly.

Few people believe they will be involved in a head-on collision in their car but do you not think they would drive a lot more carefully if the airbag was replaced by a metal spike?

poly – neither of us have stats but my guess is an uninsured cyclist will probably cave in when faced with an insured motorist and accompanying lawyers on the other side of a claim – the unfairness that I would hope this legislation would address.

you need to change mindsets which isn’t achieved by changing the consequences of an event that you believe will never happen to you.

Given the Mail-style driver-whining I am certainly tired of, I think many drivers DO expect RTCs with cyclists (if that’s the point you were seeking to make).

scotroutes – the answer is probably, and I take your point, although I’m not sure you can make a direct analogy between an almost inevitable death and your insurers having to pay a cyclist some money.

al – Well if someone expects to get new legislation I’d expect them to be able to clearly show No of Cycle Accidents > No of cycle related insurance claims > No settled (and what %age of claim value was paid) > No taken to court > No where cyclist won/lost. As you present it, the solution would appear to be for cyclists to carry insurance.

I’ve never met a single driver who got in the car that day expecting to have a collision. Saying to someone “if you hit that cyclist your insurance will have to pay” isn’t going to make any difference to the driver who wasn’t planning to hit the cyclist and probably expects that if he is at fault the insurer would pay anyway. I guess if you believe daily mail rhetoric (I thought better of you) then there are some drivers who might expect that at some point in their life they will have a cyclist collision. Those people believe those accidents are the cyclists fault – strict liability doesn’t prevent those – because the drivers believe they are protected by one of the genuine defences: that the cyclist’s negligence caused the accident.

As an aside, the proposals re old/child RTC victims (the presumption of driver liability NOT being rebuttable, as they are vulnerable) seems odd to me – you are automatically liable if you hit a kid that runs out from behind a parked car WTF?

Someone just stuck this on twitter

I point out to @TheABD that paying VED doesn’t give drivers more right to use the road than cyclists. Their reply: https://twitter.com/TheABD/status/374183027053559808 …

basically i don’t think you will ever change views on cyclists

you are automatically liable if you hit a kid that runs out from behind a parked car WTF?

a (presumably) responsible adult hits a child, I’m comfortable with presumed liability there. If an adult and a child are in pretty much any other situation and the child comes out of that situation injured, who would you normally expect to be at fault? But hey, maybe I’m just weird.

oh and ABD sounds a right tool

DONK – it’s not just presumed, the driver can’t rebut the presumption (proper strict liability).

You’d need to do about 5mph by any line of parked cars to avoid this, ridiculous

For civil stuff yeah I’m still ok with that.