Presumed Liability petition here - https://petition.parliament.uk/petitions/700451
Has been done before and I'm not confident it'll get far in the UK, but I didn't see a thread PSA so here it is.
Done. 👍
While I'm completely behind more effective justice for cyclists (in particular) on the roads, I've never been convinced this is the way to achieve it.
It would be nice, as a cycle commuter, to know that the law would at least start on my side if someone ran me over, but like most cyclists, I also drive. When some Deliveroo rider rides into me because he's looking at his phone, I'd like the law to place the burden of evidence on him, and you can't have it both ways.
Yes, my thoughts run along similar lines here. This works well in the Netherlands due to the excellent infrastructure keeping bikes and cars apart and a general ingrained respect or at least acknowledgement for two wheeled transport that means drivers expect cyclists at certain junctions etc. It is well thought out (for instance the presumed liability is not enforced on roads where cyclists are not allowed, of which there are many) and backed up by robust and well trodden legal processes.
Over here with no infrastructure, a huge illegal ebike subculture and general lack of awareness of road etiquette from all parties it could be a disaster unless introduced with great care - something I'm pretty sure we are incapable of doing. Then the elephant in the room is the fact that even when a driver is proved to be at fault in the Uk the punishment is normally laughable - perahaps we need to sort that bit out first.....
The uk is an outlier in Europe not having this. It makes total sense as a cyclist. It works fine all over Europe and rebalances things.
Why would it not work here?
This is a one million percent no from me! No group should have an automatic ‘right’ nor should another be presumed guilty unless proved otherwise.
There are plenty of idiots on bikes and cars etc on the roads - neither users are without fault at times.
I like and support the principle but would this also "protect" the suron rider who pops off the pavement and wheelies into you while you're stationary in town traffic?
Or is this just a reflection on how little faith I have left in this country?
This works well in the Netherlands due to the excellent infrastructure keeping bikes and cars apart and a general ingrained respect or at least acknowledgement for two wheeled transport that means drivers expect cyclists at certain junctions etc.
It also works in France where I ride country or city roads that are very similar to the roads here. A bit less traffic density at times but otherwise similar.
Not introducing something that is about simple duty of care hierarchy (imo it's not about a pro-bike pov but levels of vulnerability on one side and potential to cause harm on the other) or seeing it as a potential problem because of the 'chaos' we see already perceive on our roads makes no sense. It's a tool to resolve the current lack of duty of care from those who can cause most harm - i.e. any of us when driving.
would this also "protect" the suron rider who pops off the pavement and wheelies into you while you're stationary in town traffic?
No it wouldn't. Or, not outside the pages of the Daily Mail : )
The current presumption of liabilities in car RTCs presumes when you hit the rear of a car in front, you're liable - but you might prove otherwise e.eg they had no working brake lights. Same if someone rides or drives into the side of you and you're where you should be in traffic.
@four This works in the rest of Europe though.
And it would just be enshrining the Highway Code changes in law.
This is a one million percent no from me! No group should have an automatic ‘right’ nor should another be presumed guilty unless proved otherwise.
There's already an element of Presumed Liability though - if you run into the back of another car it is generally assumed that you are at fault for not leaving enough of a gap. If however you can prove something like being brake-checked or the car in front didn't have working brake lights, you would not be liable.
It doesn't mean that a cyclist can wheelie out in front of you all carefree and then claim the £££ when you run into them. Nor is there an epidemic of pedestrians hurling themselves in front of cars.
I think there's an element of Presumed Liability in the case of being bitten by a dog as well - it's up to the owner of the dog to control it, not the innocent bite-ee to stay out of the dog's way.
No group should have an automatic ‘right’
Creating those automatic rights can mean greater fairness?
nor should another be presumed guilty unless proved otherwise.
Liability here is not really the same as guilt, guilt implies it's about a criminal law point. I see presumed liability as about reinforcing a duty of care which is a more general point but seems forgotten on the roads? Being in a car means you're protected and can reduce sensation of risk, while being on a bike or on foot makes you vulnerable in traffic so it's reasonable to suggest that the level of care taken by each group in traffic may vary. And the outcome of a lack of care in each case certainly does vary.
I live in SW London’ish KT7. Car driver and cyclist of all types most of my life. I feel car driving, scooters and cycling standards are just getting worse. In the past five years it has changed so much, and for most of the day near me its vile.
i tell off club cyclists all the time for bad riding. Red traffic lights to most cyclist seems an occasional option. Scooter riders are just shocking. Car drivers as a whole are aggressive, zero courteous, and/or on their phones away with fairies. The only positive around here in comparison with other parts of the UK is we drive much slower. I think the 20mph speed limits everywhere make a difference.
The problem for cyclists is a cultural one in this country. We seem to be fueled by hate and division. I'm not sure this would be the solution to the root cause. Maybe it would.
The uk is an outlier in Europe not having this. It makes total sense as a cyclist. It works fine all over Europe and rebalances things.
Why would it not work here?
the legal systems in the U.K. have quite different derivation than in most of Europe, common law v’s civil law. I don’t know what benefit people arguing for it believe it will bring - do they get in their cars thinking “it’s ok to hit a cyclist because there is not presumed liability”?
im not sure that’s specifically enshrined in law though is it? It’s just enough case law that means insurers are quite clear where the liability lies. It doesn’t stop people driving too close or running into the back of each other. Is there fundamentally an issue where vehicle insurers are managing to dodge payouts in cases where a presumed liability would result in a clearly different outcome?The current presumption of liabilities in car RTCs presumes when you hit the rear of a car in front, you're liable - but you might prove otherwise e.eg they had no working brake lights.
It's a tool to resolve the current lack of duty of care from those who can cause most harm - i.e. any of us when driving.
But the law already says drivers have a duty of care to other road users.
Keep in mind that any change is likely to also mean that there is a presumption that a bike v pedestrian collision is the cyclists fault. Many cyclists will not have insurance for such risks because they believe they are careful enough not to need them - would you be happy to cycle a bike without insurance where the burden is on you to prove the pedestrian stepped out in front of you rather than on them to prove your were negligent?
Keep in mind that any change is likely to also mean that there is a presumption that a bike v pedestrian collision is the cyclists fault.
This is the next logical step if we are looking to support the hierarchy of vulnerability.
I'm against the principle that anyone is "automatically" presumed to be at fault, kind of runs contrary to "innocent until proven guilty ". I'm also not sure it will improve attitudes to cyclists.
Is this just another attempt to bring in legislation rather than invest in adequate policing to enforce the existing traffic laws?
A potentially better idea would be a presumption that if there is a collision (between any two road users) that there has been a road traffic offence by at least one of the participants and there should need to be a justification provided for not pursuing a prosecution!
No group should have an automatic ‘right’
Pedestrians have just this 'right' to be there (they are excluded from motorways by law and other fast roads by TRO on a case by case basis). I could, if I was feeling touched, walk down the A14 in Suffolk without let or hindrance.
Society in UK needs to be a whole lot less motor vehicle-centric.
im not sure that’s specifically enshrined in law though is it? It’s just enough case law that means insurers are quite clear where the liability lies. It doesn’t stop people driving too close or running into the back of each other.
IANAL, I read 'presumed' here as meaning a starting point used as standard. Didn't think was a law, no.
And it doesn't stop people driving too close, like this wouldn't be a solution in itself. Just one of a number of changes that could help change driving attitudes or standards over time. One thing I am more certain of - if nothing changes it'll only get worse.
Keep in mind that any change is likely to also mean that there is a presumption that a bike v pedestrian collision is the cyclists fault.
I'd be ok with that, it's the same principle.
I assume this law wouldn’t apply to e-scooters, or any ebike that didn’t meet uk legal requirements. So that’s the Deliveroo bunch plus all your middle class ebikers that think it’s ok to engage New Zealand mode etc.
Its civil law not criminal.
We already have presumed liability for some stuff. Ike run into the back of another car you are presumed to be at fault.
I am always astonished how pro car and anti bike many olk on here are
I assume this law wouldn’t apply to e-scooters, or any ebike that didn’t meet uk legal requirements. So that’s the Deliveroo bunch plus all your middle class ebikers that think it’s ok to engage New Zealand mode etc.
Why would you assume that?
I’d suggest that being on an illegal electric moped with neither license nor insurance would probably tip the balance of fault a bit…
Done, thanks for bringing it to my attention.
Appols if I am repeating myself here - the forum is near impossible to use at the moment!
As far as I know presumed liability for rear end collisions isn’t actually on the statute book anywhere? It’s either derived from case law or just become accepted practice. Why are cycling claims different? I’d suggest they are not - and certainly since the Highway Code change it’s likely to be argued that motorists owe cyclists a duty of care and except in unusual circumstances drivers will be negligent if their vehicle collides with a cyclist. Are you aware of cases which the courts have resolved since the HC update which don’t reflect the ultimate outcome you would expect from presumed liability?
The problem with assuming presumed liability improved Road safety is it seems to suggest than a significant number of motorists don’t care if they have a collision AND think their insurer will find no fault if they do AND they believe they can recover the cost of the damage “caused by” the bike (despite it likely being uninsured) AND that insurers would fight their corner rather than settle.
We need sensible law making not gestures which polarise the argument into car v bike
Why are cycling claims different? I’d suggest they are not.
- The difference is cyclist fighting an insurance company and also thar research shows its normally a car drivers fault. It would rebalance things and make getting your compo easier
it’s likely to be argued that motorists owe cyclists a duty of care and except in unusual circumstances drivers will be negligent if their vehicle collides with a cyclist.
So codify this in stature then to stop insurance companies trying to weasel out of it
Its not a huge step. Its widely used. There is no downside
In an unprecedented move on the internet, I can considered the information presented, changed my mind on the issue and signed the petition.
The problem with assuming presumed liability improved Road safety is it seems to suggest than a significant number of motorists don’t care if they have a collision AND think their insurer will find no fault if they do AND they believe they can recover the cost of the damage “caused by” the bike (despite it likely being uninsured) AND that insurers would fight their corner rather than settle.
It's a fair critique and presumed liability wouldn't stop the hit and runs either, or may increase them. It might make the close passers or last min pull-outs think twice for ex. but it won't change how the real idiots behave. I see P.L. as useful part of wider changes that might help rebalance the odds and attitudes rather than a fix in itself.
@ratherneintabago
I meant the other way round. E-scooters etc. wouldn’t benefit from the this change.
Although at first read I was unsure, with a little pondering I have signed.
The bulk the problems I encounter when commuting are cars jumping red lights, overtaking when there is not a clear path for them. i.e. coming up to parked cars or on coming traffic and running out of room and slamming on the brakes as they are coming past or just in front. Or overtaking when I'm travelling the same speed as the traffic infront. This is all in a hilly rural town of 30 limits.
So codify this in stature then to stop insurance companies trying to weasel out of it
insurance companies will still try to weasel out of it, it’s what they do. In reality most insurers settle bike v car claims before it gets to court. The ones they don’t are probably the ones where they would still try to argue that the presumption should be disproved in this case. The petition makes a reasonable point that dead or severely disabled witnesses can’t talk. I wonder how often an insurer actually escapes liability for bike v car because the cyclists version was unable to be heard. The case only needs proven on the balance of probability. Has the Highway Code change not already increased the burden on the driver?
Its not a huge step.
Legally I think it is. I don’t think anyone has pointed to laws where there is a presumption of civil liability in the U.K. the closest was the rear end collision, but it’s not codified in statute it’s become recognised logic probably from case law. Why is this not able to do the same since the Highway Code update? other countries that do this have a very different legal system to the common law systems used in the UK; the last time that comes to mind that Parliament sought to change liability law was Occupier Liability in 1957 (they modified it in 1984 - because the Courts had dug themselves into a confusion over how to interpret it). But these were about defining where a duty of care exists not the evidential burden. Logically if you were to change the law to try to eliminate this perceived risk to a now silenced victim it should not be a special case for cyclists, but for any claimant who is, as a result of the incident, unable to provide their own direct account. So to take an extreme example, a trespasser who is killed whilst on the railway. Once we start trying to define special cases you simply provide insurers and lawyers a different loophole to pursue.
not in common law jurisdictions; it’s used in countries which codify everything into statute.
Its widely used.
I think there are potentially downsides. Eg would any of these happen:There is no downside
- some motorists actually treat you worse because they don’t like bikes being a special case and the insurers will settle anyway (no more far fetched than the idea they are currently careless because they might not be held liable)
- some cyclists behave worse because they don’t have to prove negligence on the driver
- insurers and lawyers spend the next decade testing all the nuance of the new law so actually more cases go to court (or to the appeal court); no doubt some will claim these are “crash for cash” type incidents the way some people who run into the back of stationary vehicles do.
- police become less interested in pursuing road traffic act offences involving cyclists because “you will win the civil claim”
- if some cyclists are compensated when they don’t really merit it, all insurance premiums will increase
- if the same concept applies to ped v bike (as it should) then cyclists will be at greater risk of significant claims; they may lose their homes because a ped was walking across the road using their phone but the cyclist was unable to prove it; or most cyclists may feel they need 3rd party insurance (the cost of which will increase as per the point above); if most cyclists have third party insurance motorists are more likely to pursue damage claims where they believe they can show cyclist was at fault.
i’m not saying all or perhaps any of those things definitely would happen, but I don’t think you can confidently say that there is absolutely no downside.
Even the parliamentary time required to debate this is time that could be used for other cycle or active travel laws which would benefit far more.
I find the arguments against this a bit spurious so I’ve signed.
Why does it matter that the countries that have this don’t use case law?
because the entire jurisprudence of how their law is created, managed, evolved is totally different to the way the U.K. and other common law systems evolve. Here issues around liability have largely not been set be parliament, but rather have evolved over centuries as the courts encountered new circumstances and were forced to consider them, work out what was fair and the general principles expected and thus how to apply the concepts which our civil legal system to them. You may hear them referred to as Torts (or Delicts in Scotland).Why does it matter that the countries that have this don’t use case law?
In contrast the legal system in non common law jurisdictions, is highly codified and waits for parliament to explicitly tell the court what to do to any new problem (like motor cars and bicycles). Saying “France/Netherlands etc have a law on this and we don’t so we are missing out” is a gross simplification. The courts already have a lot of latitude, the changes to the Highway Code inform the court on who owed a duty to who, and the case is only based on the balance of probability so I would suggest there is already a high likelihood that car v bike finds in the cyclists favour. I don’t know of any Common Law jurisdiction who’s parliament has found it necessary to tell its courts that cyclists were owed a duty of care by motorists or shift the burden of proof on negligence. I’m not a fan of cyclists feeling they have to take cameras everywhere but if you are worried you won’t be able to convince a court you did nothing wrong then it seems the solution is readily available, indeed it would also be helpful in any presumed liability situation since it would (assuming it showed the supportive or neutral evidence) resist any attempt to counter the presumption.
in reality I believe most people arguing for presumption of liability like the phrase but have no idea what law they are trying to change or create. It’s a bit of a “Brexit means Brexit” situation where someone will ask would it give impunity to Red Light Jumpers or e-scooter users and those arguing for say 100% categorically that it would not - but no bill has been drafted so nobody can possibly know that. I’ve often heard it suggested that it would increase safety but it’s surely a logical fallacy for the reasons I’ve discussed above; if anything it might increase driver-cyclist tensions and encourage motorists to leave the scene to avoid automatically getting the blame.
now, if someone was to argue that the law on Criminal Injuries compensation should be modified to make a presumption of a claim in any car v bike incident I could probably get behind that. (My understanding is CICA would not apply if you were compensated already by the insurer). As I think I said above (or was it post that disappeared?) a presumption of prosecution might be a far better way to achieve road safety, although I would suggest that might be appropriate for all vehicle collisions.
tl;dr - I just don’t actually think the petitioners understand the reality of tort/delict in the U.K. and what they are asking to change.
in reality I believe most people arguing for presumption of liability like the phrase but have no idea what law they are trying to change or create.
Fair point - 'that's me'. Good post, thanks. So,'have legal cover'* and then the civil court process is something to have faith in?
Would P.L. help if you weren't insured as a cyclist and the driver was?
*I have it via Cycling UK
Introduce presumed liability for civil cases relating to certain road collisions, to shift the burden of proof. It would mean when vulnerable road users, e.g cyclists & pedestrians, claim against a more powerful road user (a driver), the driver would be presumed liable unless they prove otherwise
Mover Details
We think this would compensate vulnerable road users, such as cyclists and pedestrians, more quickly and effectively. Pedestrians, cyclists and horse riders are often unable to obtain compensation because of a lack of adequate evidence. If a vulnerable road user is killed they are not there to give evidence; if they are seriously injured it may be impossible for them to give complete or satisfactory evidence of the circumstances in which they were injured.
@poly ^ this is from the petition, RE my Q above, you believe the examples in the More Details info here is covered by the courts already?
Pedestrians, cyclists and horse riders are often unable to obtain compensation because of a lack of adequate evidence.
Is it sensible to say that road users should be sued and forced to pay compensation in the absence of evidence they've done something wrong...?
@poly: I'm not in favour of the proposed change, but it wouldn't be a wild or unimaginable extension to the res ipsa loquitur principle in tort.
I don't find the "everywhere else in Europe has this and we are missing out" argument very compelling. I don't believe it as a matter of fact (40+ different legal systems all work the same way...?) and I don't believe the missing out claim either.
^ no of course not, but the petition said 'lack of adequate evidence', I read that as not having something like camera footage etc which is not the same as a lack of any evidence.
But that's exactly what the proposed change wants to do: create a rebuttable presumption of fault even in the absence of evidence of fault.
But that's exactly what the proposed change wants to do: create a rebuttable presumption of fault even in the absence of evidence of fault.
This is my understanding too - the assumption is that the less vulnerable road user is at fault unless they can prove otherwise.
I’d have thought a lot of RTCs come down to he-said-she-said?
^ no of course not, but the petition said 'lack of adequate evidence', I read that as not having something like camera footage etc which is not the same as a lack of any evidence.
If that's your concern then fit a camera (and I am not fan of cameras). The only recent car v bike cases I can find in Scotland where the cyclist did not get compensation were not because the cyclist was dead or unable to recall but because the facts they recalled changed over time. If they had a camera it would have removed the ambiguity. Presumed liability probably wouldn't have aided their case. (in one the judge determined that that cyclist made a dangerous manouvre which was prohibited by the highway code (previous version which applied at the time), and in the other the judge said the identity of the driver had not been proven - the cyclist said it was a man and a partial registration plate on a particular vehicle type, the police traced a vehicle of that type with a similar but not identical combination of letters to the partial plate which had been driven by a woman along that road but no at quite the right time).
None of that will help if you can't identify the car/driver (although the MIB might cover it then?).
Well that is what I am questioning - since the highway code update, is it not implicit in most car v bike RTCs that the car will usually have some culpability for the collision - and thus liability. I don't think it needs an extension, it seems to me it is the principle that would be applied IF a case gets as far as a court room, which of course most cases don't.@poly: I'm not in favour of the proposed change, but it wouldn't be a wild or unimaginable extension to the res ipsa loquitur principle in tort.
Fair point - 'that's me'. Good post, thanks. So,'have legal cover'* and then the civil court process is something to have faith in?
Would P.L. help if you weren't insured as a cyclist and the driver was?
*I have it via Cycling UK
Public liability insurance will cover you if you cause harm to another person (or their property) through your negligence. Say for example you hit a pedestrian on a zebra crossing, or run into the back of a stationary car. Assuming presumed liability applied to other vulnerable road users you might also find the cost of that cover increases as the pedestrian no longer needs to prove you were to blame. The sort of insurance you probably want is often sold with house contents cover but I think is also included in some grades of Cycling UK membership - and will provide you a lawyer to fight your case and derisk the possibility of losing and having to pay the other party's costs. The downside of that sort of insurance is the insurer can stop the case if they get worried about winning, or if the otherside makes an offer they think you should accept. Presumed liability doesn't mean you'd never see the inside of a court room. However as an individual you have a disadvantage compared to an insurer; the rules changed a while back to cap the craziness of legal fees that can be recovered. That's a good idea. On paper it reduces the risk of you fighting and losing a case. BUT an insurer has a bigger incentive to fight a case than you do - they want to show other potential claimants that they aren't a pushover and they may want to make certain legal points of principle. They may not care if they win the case and only get 1/2 their legal costs back. If you win the case and only get 1/2 your costs back you might wonder why you bothered! You see in essence this is where I see the problem - its not about who is heavier weight on the road and therefore should be presumed to be at fault - its about who can throw more weight behind a court case. That doesn't matter on the mode of transport etc. I don't understand why these sort of cases even need a court - 95% of them could be sorted by arbitration/ajudication in a fraction of the time.