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

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.”

Our official grumpy Northerner, John has been riding bikes for over 30 years since discovering as an uncoordinated teen that a sport could be fun if it didn't require you to catch a ball or get in the way of a hulking prop forward.

Road touring was followed by mountain biking and a career racing in the mud that was as brief as it was unsuccessful.

Somewhere along the line came the discovery that he could string a few words together, followed by the even more remarkable discovery that people were mug enough to pay for this rather than expecting him to do an honest day's work. He's pretty certain he's worked for even more bike publications than Mat Brett.

The inevitable 30-something MAMIL transition saw him shift to skinny tyres and these days he lives in Cambridge where the lack of hills is more than made up for by the headwinds.