Thursday, 27 October 2011

Going Dutch and strict liability for drivers

I enjoyed the Guardian bike blog today, which was about the LCC's Go Dutch campaign, and how the focus of the campaign should not be on segregated cycle paths. I agree; seeking to dramatically change the infrastructure in London is impractical and segregated cycle paths are not an effective way of reducing cycling accidents.

The article also touches on the 20mph speed limit (which I have blogged about recently) and the concept of 'strict liability' as methods to improve the attitude to cycling in general. I do not think that strict liability in the form proposed by the LCC (outlined here) would have a great deal of impact from a legal perspective. My view is that the real benefit of strict liability would be in shifting society away from its current motorcentric attitudes by making it clear that drivers are responsible for the safety of cyclists.

There is often confusion about the concept of strict liability. This is not really surprising, as the name is misleading. In essence, strict liability as proposed by the LCC would mean a rebuttable presumption that the car driver is liable in any collision between a car and bicycle. As a result, the burden of proof would shift from the current position where the injured cyclist has to prove that the driver was liable for the accident, to the driver having to prove that they were not liable. It is important to be aware that this would relate purely to civil cases i.e. those who have been injured in a cycling accident and are seeking compensation. This has no bearing on criminal cases.

On the subject of strict liability, the LCC say that, "the current system isn't fair: if a pedestrian or cyclist is hit by a motor vehicle, they are far more likely to suffer serious injury than the driver or passengers. It seems reasonable that the people who use the most damaging vehicles should pay for most of the injuries caused. There is a bias against vulnerable road users which means, sadly, drivers are less likely to worry about collisions because they know they're very unlikely to be held accountable."

However, I have not seen any evidence of a "bias against vulnerable road users" and I do not think that this is the case. I get to see the practical difficulties cyclists face in proving liability and getting compensation for their injuries. From a legal point of view, there is already a good system in place to ensure that drivers are accountable for causing accidents – if they have breached their duty of care to another road user then they are liable for injury and loss which arises from that. There is also a recognition that drivers should take responsibility because of the dangers posed by cars.

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