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Cycling and the law: would presumed liability make roads safer for cyclists?

Presumed liability is law in all but a few European countries, but not the UK. Cycling advocate Mark Hambleton explains what presumed liability is, and how it might make roads safer for cyclists

What does the UK have in common with Ireland, Cyprus, Malta and Romania? No, this isn’t a blog about the Eurovision song contest – at the time of writing, these are the four other European countries that don’t have a system of presumed liability to protect vulnerable road users like cyclists and pedestrians.

Following my last blog – which covered close passes – a number of people expressed their frustration that we do not have the benefit of a presumed liability system in the UK. Here are my thoughts on the subject and how a law change might improve things for cyclists.

What is presumed liability and how does it differ from our current law?

The UK is one of the few European countries not to have presumed liability (“surprise, surprise,” I hear you say). So, as it stands, if we were to introduce presumed liability it would see the burden of proof shift from the injured cyclist to the motorist.

At the moment, if you have an accident on your bike in the UK the onus will be on you to prove civil liability (on the balance of probabilities) to bring a claim for damages – it is the cyclist’s responsibility to prove that the motorist was at fault for causing it.

A system of presumed liability means that, in the event of an accident, the starting point would be to assume that the motorist is at fault. The motorist will be held responsible unless they can prove that the cyclist was obviously to blame – riding through a red light into a collision, for example.

How could the introduction of presumed liability improve things for cyclists?

There are a number of ways that presumed liability could improve things.

Crucially, by shifting the burden of proving fault from the cyclist to the motorist, cyclists would find it much easier to achieve a just result following an accident. After all, it follows that the most vulnerable road users should be afforded the greatest protection. The recognition of causative potency already goes some way towards this.

For example, a severely injured cyclist might be unable to give evidence or recall how an accident happened. In the absence of independent witnesses, the case of the injured cyclist might fail and a dangerous driver may remain on the roads. If presumed liability was in place, this would be less likely to happen. Furthermore, cyclists wouldn’t have to wait as long to be compensated for financial losses, treatment costs, injuries or damage to equipment, as cases would be much more straightforward and cheaper.

Additionally, it is likely that our roads would become much safer to ride on. I’m sure many motorists would be much more careful, both in the sense of having an increased awareness of the danger they pose and out of fear that their insurance premiums could increase if they collide with a cyclist.

As an added bonus to the general public, more caution and awareness of cyclists would likely encourage more of a cycling culture and improve conditions for cycling. More cyclists on our roads would have huge knock-on effects for congestion, public health, pollution, empathy between motorists and cyclists, and so on. 

My hope is that, if presumed liability was introduced, the change could be used as part of a blend of other (more effective) measures to reduce cycling deaths and improve road safety. My preference would therefore be for greater driver education, good quality infrastructure and more significant consequences for motorists who kill and injure vulnerable road users.

What are the arguments against strict liability?

Of course, when the subject of presumed liability is broached with non-cyclists, there are a number of common complaints, including:

  • It’s “anti-motoring” i.e. unfair for the burden of proof to be shifted from cyclists to motorists.

  • Insurers would probably object on the basis they may have to pay damages in more cases as it would be harder for them to defend claims on liability. There is a risk that motoring insurance premiums would increase.
  • It will not improve driver standards around cyclists because often the cause of poor driving is impatience or aggression in the moment.
  • It encourages bad cycling.

What should happen?

Perhaps the lobbying power and influence of motorists and insurers outweighing the growing voice of cyclists in the UK is the reason we’re miles behind the times in not having presumed liability in the UK. Putting aside these arguments against presumed liability, I really don’t see the justification for continuing as we are.

Clearly, presumed liability is not an overnight fix for improving cycling safety. I do believe, though, that it would change the psychology of drivers and make clear the consequences of a collision with a cyclist. This would only make roads safer for cyclists.

I suspect that if cycling groups and campaigners had the resources of the motor insurance industry, and the apparent power to influence policy, lobbying for this law change would have been successful before now. My hope is that the powers that be see sense and make the necessary changes to the law.

• If there are any particular cycling legal topics you’d like me to cover in my next blog, please drop me a line on Twitter @hambleton_mark to let me know. 

After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.

Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at Royds Withy King.

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