Lib Dems propose introduction of ‘presumed liability’

Law change would put onus of proof of fault in collisions on drivers

by John Stevenson   August 8, 2013  

Liberal Democrats logo

The Liberal Democrats have proposed the introduction of ‘presumed liability’ as part of a range of measures aimed at encouraging cycling and walking.

The idea, in turn, is to reduce the UK’s carbon footprint to zero by encouraging zero- and very-low-carbon transport.

The proposal is contained in the policy paper ‘Green Growth and Green Jobs - Transition to a Zero Carbon Britain’ to be discussed at the Lib-Dems’ Autumn conference.

The paper contains several pro-cycling measures, but predictably it’s the suggestion of presumed liability that’s garnered most attention with the Daily Mail in particular flagging up what it sees as another motorist bashing measure. That shouldn't come as too much of a surprise as the Mail was at the forefront of the campaign - along witht he AA, and RAC, that led to the last Labour government shelving what had been thought of as an uncontentious proposal to bring UK law in to line with that of most other European countries by introducing the measure.

The Lib Dem's policy document says that the party would: “Make walking and cycling safer and more appealing. We would bring in a presumption of liability for motorists involved in traffic accidents much like the systems already operated in many other European countries, where the less vulnerable driver is deemed at fault unless proved otherwise.”

What is presumed liability?

Often referred to as ‘strict liability’, the presumption of liability as it exists in almost all European countries applies to civil cases, not criminal ones, so it doesn’t affect any notion of criminal guilt and doesn’t overturn the principle of ‘innocent till proven guilty’. Only the UK, Cyprus, Malta, Romania and Ireland lack a principle of presumed liability in road collisions.

In a claim regarding a driver and a pedestrian or cyclist, presumed liability puts the burden of proof on the insurance company of the driver, rather than on the more vulnerable rider or pedestrian.

Campaign group RoadPeace explains presumed liability and why they support it: “Our civil compensation system for personal injury is fault based. Thus in a collision, driver error must be proven. Because the default assumption is that the driver has not contributed to the crash, their insurance company is not automatically liable for compensation. Often what will follow is a lengthy and stressful fight for compensation by the victim.

“The onus should be on the driver’s insurance company to prove that the casualty caused the collision. We also believe that, as in France and the Netherlands, pedestrians and cyclists with additional vulnerabilities (children, older people and those with disabilities) should receive full compensation, regardless of their actions. This would bring us in line with all the other major nations of Europe.

“Presumed liability would only affect civil compensation charging standards, not those of criminal prosecution, where the principle of "innocent until proven guilty" would continue to apply . And this isn’t about ‘driver persecution’ - it’s the driver’s insurance company that will pay out, not the driver themselves, unless driver error is proven, in which case the driver's insurance premiums may increase.”

Not a panacea

However, some cycling campaigners don’t see presumed liability as a universal panacea. A draft article from the Cycling Embassy of Great Britain points out that claims about the effect of presumed or strict liability are often exaggerated.

The article says: “Strict liability is often portrayed as a very strong legal tool. In fact, it is very weak. It is often mistakenly believed that “strict liability” would be relevant in the cases of cyclist deaths in which the motorists involved have received no or lenient punishment. In fact, the personal consequences of strict liability for the motorist are minimal to none.”

In particular, the notion that presumed or strict liability would lead to better driving is “unlikely”: “Motorists are already liable in crashes where they can be shown to be at fault; if this is not a deterrent to dangerous driving, it is unlikely that strict liability will be.”

However, proponents of presumed liability point out that it while it would not affect the widely-perceived problem that drivers who kill or severely injure pedestrians and cyclists often receive very light sentences, it would simplify compensation claims after injuries and deaths occur, something that's an issue even when a driver is convicted.

Opponents of presumed liability often claim there is something dramatically unusual about the idea, when in fact it already exists in the way insurance companies handle rear-end collisions between cars. The driver of the rear car is presumed to be liable.

 

Other Lib-Dem proposals

At the heart of the Lib-Dem’s cycling proposal is a very ambitious target: “Liberal Democrats aim to achieve the highest growth rate of cycle use per capita in the OECD, through the promotion of cycle hire schemes and safe lanes in our towns and cities.”

One legislative factor in achieving that would be to make it a legal requirement that all new transport and infrastructure schemes take cyclists’ and pedestrians’ needs into account. The Lib-Dems would “also encourage
the creation of secure cycle storage facilities (like at Leeds Station) at all major UK stations” which at least shows that someone at Lib-Dem HQ has realised that it’s not just about a few bike lanes, but that Dutch-style mass cycling requires integrated facilities across the whole transport network.

The Lib-Dems would also introduce a 20 mph standard speed limit for residential streets (and, it is to be hoped, require its enforcement) and require all schools to provide level 1 and 2 Bikeability training for pupils who want it.

Among the advantages of a transport network based on low-carbon modes, the Lib-Dems point out that people would be healthier. “Their diets will be less based on imported foodstuffs and life-shortening air pollution from burning fuels will finally be over. More walking and cycling will help people be less sedentary and more active.”

23 user comments

Oldest firstNewest firstBest rated

Cynical vote-grabbing anyone?

Lovely idea, but it's very unlikely to make it into law... much like most of the torie-lite ideas they have.

posted by Not KOM [79 posts]
8th August 2013 - 11:32

8 Likes

Vote grabbing? You've got to be joking.

posted by Yemble [24 posts]
8th August 2013 - 12:12

9 Likes

Great - so when my luck finally runs out and I end up colliding with one of the dozens of pedestrians that step out in front of me everyday (usually when the pedestrian light is on red and usually whilst messing around with a smartphone), as the less vulnerable cyclist, I'll be presumed guilty and it will be up to me to prove that it wasn't my fault.

This helps cyclists how?!

Whilst all the talk of danger to cyclists is about lorries/cars etc, my experience of the last 5,000 miles of central London cycling is that my scariest moments have all come from pedestrians stepping out into the road without so much as a glance.

posted by mpdouglas [12 posts]
8th August 2013 - 12:24

7 Likes

no, you won't be presumed guilty. you might want to read it again.

Dave Atkinson's picture

posted by Dave Atkinson [7476 posts]
8th August 2013 - 12:32

7 Likes

mpdouglas wrote:
Great - so when my luck finally runs out and I end up colliding with one of the dozens of pedestrians that step out in front of me everyday (usually when the pedestrian light is on red and usually whilst messing around with a smartphone), as the less vulnerable cyclist, I'll be presumed guilty and it will be up to me to prove that it wasn't my fault.

This helps cyclists how?!

Whilst all the talk of danger to cyclists is about lorries/cars etc, my experience of the last 5,000 miles of central London cycling is that my scariest moments have all come from pedestrians stepping out into the road without so much as a glance.

Well if you have third-party insurance your insurance company will pay any damages required.

If you read the article you will see it stated several times that this is not about a presumption of guilt.

It is simply a way of socialising or distributing the cost of compensation for all road users. it will help cyclists by preventing attempts by insurers to minimise payouts for injuries and medical treatment and because they will find it harder to fight it should also lead to quicker payouts.

And it has nothing to do with guilt. If for example a pedestrian was criminally culpable for stepping out in front of you without due care and attention then even if the insurance company pays the bills b the police/CPS could still charge them. In that case it is possible the insurance company might seek to recover the costs, or a portion. Either way you get to pretty much stay out of it.

abudhabiChris's picture

posted by abudhabiChris [556 posts]
8th August 2013 - 12:37

6 Likes

mpdouglas - I've never heard of a pedestrian suing a cyclist, probably because collisions causing serious injury between cyclists and pedestrians are very few and far between.

I do however know at least one chap who was knocked off his bike by a driver and pressured into accepting split liability (losing 50% of his compensation for loss of earnings et al) because neither party had any witnesses.

So yeah, good move by the Lib Dems, but unlikely to be the magic bullet that makes drivers treat cyclists with respect, and very unlikely to become law.

posted by Mr Agreeable [149 posts]
8th August 2013 - 12:41

6 Likes

Good job the bus had CCTV in this case then, otherwise the Chav on the bike would have sued the bus driver if this was introduced!

http://road.cc/content/news/89871-updated-police-arrest-cyclist-after-bu...

posted by 700c [587 posts]
8th August 2013 - 13:07

10 Likes

Para 6 - "...doesn’t overturn the principle of ‘guilty till proven innocent’." I think you mean "...doesn’t overturn the principle of ‘innocent till proven guilty."

posted by stargazer [1 posts]
8th August 2013 - 13:17

8 Likes

stargazer wrote:
Para 6 - "...doesn’t overturn the principle of ‘guilty till proven innocent’." I think you mean "...doesn’t overturn the principle of ‘innocent till proven guilty."

ahem. indeed we do

Dave Atkinson's picture

posted by Dave Atkinson [7476 posts]
8th August 2013 - 13:37

9 Likes

There's those get-out-of-actually-doing-something words throughout: 'promotion' and 'encourage'. At Wits End

The Scottish government is currently showing how well 'promotion' and 'encouragement' goes down. See #NiceWayCode

Government must fund the creation of #SpaceForCycling to make places #CycleSafe in order to #GetBritainCycling.

We deserve better. Britain deserves better.

~Andrew~

AndrewRH's picture

posted by AndrewRH [48 posts]
8th August 2013 - 13:42

10 Likes

Great idea but it's the LibDems. Tuition fees anyone?

Luminosity's picture

posted by Luminosity [73 posts]
8th August 2013 - 13:44

7 Likes

stargazer wrote:
Para 6 - "...doesn’t overturn the principle of ‘guilty till proven innocent’." I think you mean "...doesn’t overturn the principle of ‘innocent till proven guilty."

I hereby award myself Typo of the Week.

John Stevenson's picture

posted by John Stevenson [1199 posts]
8th August 2013 - 13:57

9 Likes

Seems to me that this is a good idea, but not an important idea.

I agree with RoadPeace that it would make life easier for crash victims seeking compensation, but Cycling Embassy GB points out that the fight to achieve it would involve vast amounts of time and energy and - because it's so easily misrepresented by those who oppose it - the PR cost would be immense.

You only have to read the Daily Mail's coverage to see the latter point in action. I can't believe there's nobody at the DM who's bright enough to properly understand the implications here, but it's very very easy to use it as a big stick to bash the Lib Dems, so that's what they've done.

John Stevenson's picture

posted by John Stevenson [1199 posts]
8th August 2013 - 14:02

8 Likes

A councillor (no surprise, LibDem!) has just sent me the full text to be debated - the words used in the debate proposal are actually stronger than I understood from the article above. Applause

So, I gladly stand corrected.

QUOTE>>
[The LibDem] Conference therefore calls for:

1. The Government to further improve cycling in the UK by aiming to raise the number of journeys made by bike to 10% in 2025, rising to 25% by 2050.

2. Better cycling infrastructure through:
a) Creating a cycling budget of at least £10 per person per year, increasing to £20.
b) A requirement for Local Authorities to provide for cyclists in the planning system as well as in the design of all highways and traffic schemes, and training in how to do this.
c) Expansion of the Local Sustainable Transport Fund.
d) Integration of the cycle network with rail and bus travel.
e) Creation of high-quality, segregated cycle routes where appropriate.

3. The promotion of cycling through:
a) A Government strategy to increase Bikeability cycle training courses for people of all ages and backgrounds.
b) The provision of training and facilities in schools and places of work.
c) A cross-departmental ‘Cycling Action Plan’ drawn up in conjunction with relevant stakeholders and partners.

4. A commitment to improving the safety of cyclists on the roads through:
a) An increase of priority traffic lights for cyclists and Trixi mirrors that allow drivers to see cyclists on their near-side.
b) The adoption of vehicle safety measures such as sensors, alarms, safety bars and extra mirrors on lorries.
c) The inclusion of a cyclist safety section in the national driving test and cyclist awareness training for drivers of large vehicles.

5. Justice for victims of accidents on the roads through:
a) Consultation on the introduction of proportionate liability rules so that the default assumption after collisions is that the larger vehicle is at fault.
b) Review of existing road traffic laws and their enforcement to ensure that dangerous and careless driving is dealt with the seriousness it merits.
c) By ensuring cyclists, like all other road users, obey the rules of the road about rights of way, traffic lights and lights at night.
d) Implementation of Part 6 of the Traffic Management Act 2004 to permit local authorities to enforce moving traffic offences, including the illegal use of cycle lanes.
<<<

AndrewRH's picture

posted by AndrewRH [48 posts]
8th August 2013 - 14:17

8 Likes

Quote:
...unless driver error is proven, in which case the driver's insurance premiums may increase

The risk of increased insurance premiums would surely influence driver behaviour, even if there is no direct personal impact in terms of criminal liablility?

Interesting article, highlighting some aspects of the strict liability debate that I was not aware of.

posted by kcr [74 posts]
8th August 2013 - 14:44

8 Likes

They might as well offer every citizen over 18 a £1,000,000 each if they were to get in. Hollow.

bikeandy61's picture

posted by bikeandy61 [396 posts]
8th August 2013 - 15:17

6 Likes

Sounds good, the more talk on pro-cycling measures the more news/pressure it can develop.

posted by TeamCC [146 posts]
8th August 2013 - 19:24

7 Likes

LibDems control 10 or so councils throughout Britain. So presumably they are cycling paradises since many of their proposals involve locally controlled policies.

http://www.gwydir.demon.co.uk/uklocalgov/makeup.htm

posted by racyrich [147 posts]
8th August 2013 - 20:21

9 Likes

Here's a CTC briefing on compensation and liability, setting out the case for presumed liability and busting some of the myths about what it means:
https://www.ctc.org.uk/campaigning/views-and-briefings/compensation-for-...

Roger Geffen
Campaigns & Policy Director
CTC, the national cycling charity

posted by Roger Geffen [35 posts]
9th August 2013 - 10:41

5 Likes

P.S. Strictly speaking (sorry!), "strict" liability is not the same as "presumed" (or "stricter") liability.

To a lawyer, "strict liability" would mean that a driver who had injured a pedestrian or cyclist would be liable for compensation automatically, i.e. they would have no opportunity to demonstrate to the court that actually the injured person had been at fault and that their driving had been blameless.

Actually, CTC and RoadPeace *do* want to see "strict" liability rules for injured child peds/cyclists. However we run into obvious PR nightmares if we use the phrase "strict" liability for cyclists of all ages. To a lawyer, that sounds like we want adult cyclists to be free to ride as recklessly as they want, and still claim compensation when they hit a motor vehicle!

Hence there are several reasons why CTC and RoadPeace prefer the phrase "presumed liability":
(a) because it avoids the risk of misleading lawyers about what we're actually calling for;
(b) because it's easier to explain than "stricter liability" (which is the other legally correct option); and
(c) because it sounds less 'forbidding' than "strict" (or "stricter") liability.

Roger Geffen, CTC

posted by Roger Geffen [35 posts]
9th August 2013 - 10:50

4 Likes

Oh dear the Lib Dems fall into that trap of confusing liability with fault - at one time we were saying presumed liability was no fault liability but that still left that weasel word 'fault' in any discussion.

Let's widen the scope - a motor car is a piece of equipment which can cause massive damage and severe injury when you introduce it into any incident that happens in traffic. If a person was not driving a car when they bumped into you on the street then you'd probably just brush yourselves down and apologise for not noticing each other on a collision course. This is not unlike the situation where someone is using a gun on a sporting shoot or a chainsaw felling trees. You are using dangerous kit and you have a duty of care (to use the appropriate H&SAW language) to third parties, even when those third parties may be at fault as architects of their own misfortune (or Darwin Award winners). You are using the dangerous kit. You carry the liabilities associated with using the dangerous kit nem con.

UK law has actually recognised the presumed liability issue from the very first Motor Car Act in 1903,, and this continues with Section 170 of the current Road Traffic Act 1988, which sets out that the driver of a vehicle where the PRESENCE (note no impact is required) of that vehicle causes damage to property of injury to persons, has to provide specified details to any person reasonably requiring the details, and for specified circumstances also provide those details to the Police. The vastly greater damage that occurs when a motor vehicle is involved, results in claims well beyond the capacity of an individual to underwrite their own risk, and so the law requires anyone using a motor vehicle to have third party insurance cover, an attempts to manage this through linking it to an annual Vehicle Emissions Tax to ensure all motor vehicles have this insurance cover when in use. Licences to operate and keep motor vehicles have parallels in the regulatory regimes for guns, chainsaws etc.

So the detail to facilitate this is all in place and it simply requires the will to deliver.

Remember though, when in any discussion, this is not a case of the driver being at fault it is a case of the driver being liable and there is a VERY big difference in the two meanings. Sadly even those promoting presumed liability seem to get it wrong!

47 years of breaking bikes and still they offer me a 10 year frame warranty!

A V Lowe's picture

posted by A V Lowe [499 posts]
13th August 2013 - 1:08

6 Likes

Just a further detail that links back to that phrase 'duty of care'. When driving a car or truck you should be thinking continuously about the responsibility you have in using that vehicle safely and responsibly because of the damage it can cause.

I am reminded on an advanced driving Police instructor making sure that we (an advanced driving course) were in no doubt that in any crash we might be involved in we would carry some element of fault for being in that crash - even when someone runs into the back of you there is that detail that you should have foreseen this possibility, and been observing the situation to the rear such that taking an action such as rolling forward (assuming you had been sensible enough to leave a gap in front when you stopped in the traffic queue) or pulling to the side to get out of the way.

Take a ride with a top rated driver and see how little they miss of what is happening on the road around them.

47 years of breaking bikes and still they offer me a 10 year frame warranty!

A V Lowe's picture

posted by A V Lowe [499 posts]
13th August 2013 - 1:23

4 Likes

'Great idea but it's the LibDems. Tuition fees anyone?'

Exactly - another great idea. Unless you read the Daily Mail.

posted by andyp [1019 posts]
15th August 2013 - 9:38

5 Likes