‘Strict liability’ and legal protection for cyclists
I dislike conflict. This is a questionable characteristic for a barrister.
As a result there’s a sombre tone in this week’s post, as I’m tiptoeing precariously close to a shouting match.
Lots of people talk about ‘strict liability’ as one possible solution, and point to countries such as the Netherlands by way of example. It’s also said (for example here) that ‘strict liability’ comes from the EU’s fifth motoring directive, but hasn’t been implemented in the UK.
The ‘strict liability’ debate is rather law-heavy. I thought I’d try to clarify some of the rules and concepts.
The EU legislation
The 5th Motoring Directive says nothing about ‘strict liability’.
It does introduce a rule that car insurance must cover liability to cyclists and pedestrians. (Directive 2005/14/EC, Article 4(2))
But it doesn’t impose any requirements as to when a motorist is liable for a crash with a cyclist or pedestrian. The Directive leaves it open to the EU Member States (including the UK) to set their own rules regarding liability between motorists and cyclists/pedestrians.
As far as I can see this position remains the same in the new 6th Directive, which has replaced the 5th Directive. (Directive 2009/103/EC, Article 12(3))
This Daily Mail article warns of a proposal from Brussels to introduce ‘strict liability’. The existing EU legislation doesn’t do this. Looking around the European Commission’s website, I can’t see any proposal for new legislation either.
So as far as I can see, if other EU countries have ‘strict liability’ rules, they have them of their own choosing.
What kind of rule?
When cyclists talk about strict liability, they usually don’t mean strict liability in a technical sense. A rule making a motorist strictly liable for crashes with cyclists would mean that the motorist was always liable. So a cyclist who wanted to replace their bike could deliberately run it into a car, then claim compensation from the driver.
Instead, what people are usually suggesting is a presumption of liability – a rule that a motorist will be liable for a crash with a cyclist unless the motorist can show that the cyclist was at fault. The unless part is crucial, and is the difference between a presumption and strict liability. For example, RoadPeace have called for ‘strict liability’ in the past, but have since changed their language to reflect this.
A presumption of liability would normally work by shifting the burden of proof. So after a crash, a cyclist wouldn’t need to prove that the driver did something wrong; it would be for the driver to prove that he didn’t do anything wrong (or that the collision was caused by the cyclist doing something wrong).
Beyond that, the usual rules would normally apply. In the road traffic context, one relatively straightforward way of showing that someone did something wrong is to show that they disobeyed the Highway Code. If a presumption of liability existed, the Highway Code could still be applied in this way; there would just be a shift in who had to prove that someone disobeyed it.
There’s not a lot of reliable information available in English about the rules in the Netherlands. But from what you can find online (for example the discussion here and here), it appears most likely that this kind of presumption is essentially what they have. If there’s anyone around with a bit of Dutch law, though, please feel free to correct me.
Presumption of liability and criminal law
The Guardian’s article addresses the criminal law. It argues that the criminal penalties for injuring or killing a cyclist aren’t stiff enough, or that there aren’t enough prosecutions for serious offences such as causing death by careless driving or dangerous driving.
It seems unlikely that a presumption of liability could help in the criminal law context.
There’s a good chance that a criminal law presumption – for example a presumption that a motorist who hit a cyclist was driving carelessly or dangerously, unless he can show otherwise – would be unlawful. It’s a difficult area, but there’s a good chance that it would breach the innocent until proven guilty guarantee in Article 6(2) of the European Convention on Human Rights. (e.g. R v Lambert  2 AC 545 at paragraphs 17, 34-41, 154)
Presumption of liability and civil law
So a presumption of liability would probably be limited to the civil law context, involving claims for compensation. It would help determine who is liable to pay for injury or property damage. As explained above, it wouldn’t decide liability for a crash on its own; it would normally just shift the burden of proof onto the motorist.
It would make it easier for cyclists to claim compensation, and would probably mean that there were more compensation claims brought by cyclists.
It may mean that motorists would take more care around cyclists. It probably would mean that car insurance premiums would go up. Of course this spreads the risk across all drivers, so (at least in policy terms) isn’t necessarily a bad thing.
A presumption of liability between motorists and cyclists is often talked about in the context of a general stronger party pays rule. A rule of that kind might also involve a presumption that a cyclist was at fault in any collision with a pedestrian. If legislation in this area were ever to be introduced, it seems likely that there would be strong calls for a cyclist/pedestrian presumption to operate alongside the motorist/cyclist presumption.
One problem is that a right to recover compensation from a cyclist is of no real use if the cyclist has no real assets. For a cyclist/pedestrian presumption to be effective, there would need to be someone supporting the cyclist who has enough money to cover the cost of compensating the pedestrian. In other words, it’s difficult to see how a cyclist/pedestrian liability rule could exist without compulsory insurance for cyclists.
There. Heavy on the detail this week. But I hope this helps.
Photo: edit by UKcyclerules from a photo by ibikelondon from http://www.flickr.com/photos/44947134@N08/4551617249/. Rights restrictions as original.