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‘Strict liability’ and legal protection for cyclists

16 November 2010
by blondwig

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.

The Guardian recently posted this article asking whether the law does enough to protect cyclists. As expected, the comments express some fruity road-related read rage.

At the same time there’s a strong debate in the cycle blogosphere on what can be done to increase the numbers of people cycling (see ibikelondon vs Carlton Reid, for example).

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 [2002] 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.

Other consequences

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.

18 Comments leave one →
  1. 16 November 2010 12:16

    Brilliant article. Good to get some legal eagle clarification on that.

    • 16 November 2010 13:06

      Hi Carlton – thanks for your kind words and for stopping by!

  2. 16 November 2010 13:53

    I’ve been trying to find the basis for the Dutch law without success. I’ve email the speaker in the short film on @carltonried s site, he is the international contact for the fietsbond but no reply.

    Would be very interested to know what you can turn up in this regard.

    • 16 November 2010 14:02

      hi nik

      i’ve had a look through the english stuff on the fietsberaad’s website and a general google around, but without much success. unfortunately my dutch isn’t quite up to the task of looking for the actual legislation!

      maybe someone else who reads this might be able to help!

      • 18 November 2010 07:43

        Try here. Note that it’s not nearly as simple as it’s being presented as being in the UK. Motorists are often not held liable. It depends on what has actually happened.

        Also note that there is no short snappy phrase like “strict liability” to sum this up in Dutch. It’s known only as “art. 185 WVW” of the law. That’s why you don’t easily find it. The Dutch are mostly unaware of it, and it’s not at the forefront of Dutch drivers minds when they see cyclists. One keen cyclist here who I spoke to said that he only became aware of it after reading about this supposed law on English language blogs.

        To summarise: it’s a nice idea, but has almost nothing at all to do with why Dutch cyclists are the safest and most numerous of any nation. Rather, both of those things are due to decent cycle paths and segregation even when there are no cycle paths. These lead to a high level of actual and subjective safety.

        People are willing to cycle because they can do so in such safety. Crashes are avoided by road design, not by threatening to punish drivers after crashes have occurred.

        Car insurance is, btw, not particularly expensive in the Netherlands. There are few crashes on the world’s safest roads.

      • 18 November 2010 10:08

        thanks david – some interesting reading. shame the pdf isn’t available in english!

        as for your points about road design – it’s a controversial topic, but i tend to agree.

      • 6 February 2011 00:52

        I have a Dutch friend in her mid-30s who told me how a popular Dutch comedy lampooned the legislation that changed the presumption of liability at the time the legislation was passed.

        The show depicted a cyclist veering all over the road (“Serpentine!” for fans of The In-Laws) and giving a seething motorist behind the finger.

        It suggests to me:
        1) The law was reasonably big news at the time it was passed.
        2) It was plausible to caricature the legislation as being strict liability, even though it’s clear from what you’ve written that it wasn’t strict liability.

      • 6 February 2011 08:32

        thanks dermot – interesting!

  3. 16 November 2010 14:36

    Very interesting article – esp’ regarding Criminal Law.

    I can see the issue with ‘innocent until proven guilty’, but would be interested in hearing of whether it is applied as a Criminal Law in the Netherlands, and if so then how it circumvents the issue.

    The fact that the vulnerable party is almost guaranteed to come off worse in a collision should surely count for more when looking at blame. A legal deterrent beyond one that affects Insurance Premiums (that a growing number of people don’t pay) would be very useful in modifying behavior of motorists for the better.

    That a motorist is presumed to be at fault when hitting another from behind is at huge odds with what happens when they hit one of us!

    • 16 November 2010 14:56

      hi ian

      i agree it would be useful to know more about the dutch situation, whether the presumption there applies in criminal law, and how that sits with human rights rules. let’s see if someone comes along who can tell us!

  4. 16 November 2010 18:18

    Or might it be the situation in the UK that the law is actually fine, only the rulings are at odds? So, not a law problem, but a court problem?

    • 17 November 2010 11:38

      hi katja

      i’m not sure which rulings you mean. but it’s worth noting that probably the most reliable way of changing court rulings is to change the laws which the courts are ruling on.

  5. blondwig permalink*
    23 November 2011 12:14

    Just discovered some interesting material on the German law in this area. Source material is in German though, so you might need to dust off the old GCSE textbooks!

    Dr. jur. Dieter Heskamp produces a website which seems to explain a great deal of German road traffic law – see strassenverkehrsrecht.net.

    Doing my best to understand his website, the following seems to me to represent roughly the German law:

    - the person who is in possession of a motor vehicle is liable for death, personal injury or property damage caused by the use of the vehicle – see para. 7 StVG and the explanation here. The possessor will often, but not always, be the owner. Subject to the issue of contributory negligence (below), the possessor’s liability is strict.

    - the possessor’s liability can be reduced if there is contributory negligence on the part of the person who was injured – see para. 9 StVG and para. 254 BGB. The way the provisions are arranged would suggest that it is for the possessor of the motor vehicle to prove contributory negligence. So, in effect, it seems that the German law actually operates in much the same way as the presumption of liability considered above.

    - interestingly, the same rules do not seem to apply to the driver – the driver of a motor vehicle (where, presumably, he or she is not the possessor) is only liable for damage caused if there has been fault on his or her part – see para 18(1) StVG.

    Dr Heskamp puts forward the reasons for the German rules, in terms which may perhaps make cycle campaigners in this country rather envious (my translation):

    “In the view of the legislator, the use of a motor vehicle involves an increased risk of causing damage, because of the particular characteristics of motorised traffic (the significant weight of motor vehicles and the possibility of significant speeds). So motor vehicles represent a specific source of danger. When this danger materialises, so that damage is caused, the individual who controls the motor vehicle should be liable to make good the damage.”

    • 9 January 2013 13:35

      For the German situation I’m also not really aware of “strict liability”, but I think it’s implicit in the philosophy of the traffic law (StVO). I should say that I’m not a legal expert, but the following is roughly how we learned it in driving school, so I assume that’s similar to how most German traffic participants will understand the situation.

      In many individual regulations there is stronger protection for weaker parties, but there are also important catch-all rules, in particular paragraph 1 (“Foundations”) and 3 (“speed”) of the traffic code (StVO).

      Paragraph 1 demands in very general words mutual respect and consideration, and the requirement to act in a way that nobody else is harmed or endangered, or (beyond what is unavoidable in the circumstances) be inconvenienced or annoyed (“belaestigt”). Note that this iomplicitly favours weaker/slower transport, because the stronger/faster vehicles have more potential to harm/endanger/inconvenience/annoy others.

      Paragraph 3 states that the driver of any vehicle has to drive below the speed that enables him to stop within the distance he can oversee. Notes: vehicle includes any kind of transport for persons or goods, cars as well as bicycles; and this rule overrules any explicit speed limit (e.g. in fog, or if the road curves so that you can’t see far, any higher speed limit is irrelevant).

      These are very general paragraphs, but they mean that generally the weaker/slower mode of transport has a stroger legal position in case of an accident.

      For example, if a car hits a pedestrian, then there is always the question why the car wasn’t able to stop in time (paragraph 3), even if the pedestrians should not have been on the road in the first place. So the car driver would have to prove that the pedestrians really appeared out of nowhere (e.g. jumped onto the road without any warning). The same, of course, is true in a cycle-pedestrian collision where the cyclist should have been able to stop. In car/cycle collisions it may depend more on the relative speeds. And of course the car is more likely to harm a cyclist or pedestrian, and a cycle is more likely to harm a pedestrian, so they are likely to have some responsibility from paragraph 1 in case of an accident, even if some other traffic rule gave them the right of way.

Trackbacks

  1. Links of the day – November 17, 2010 – Cycling Embassy of Denmark
  2. 2011 Transport White Paper: what's for cycling?
  3. Dangerous and reckless cycling – do we need the new law? « UKcyclerules
  4. Cycle law on radio 4 | UK Cycle Rules - information on cycling law in England and Wales

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