posted 5 years ago

Guest article written by Cyclist and Author Carlton Reid,

When somebody drives into the back of your car it’s accepted that the shunt is their “fault”. True, there may be mitigating factors but, nevertheless, the driver behind you is generally liable for any damage resulting from the collision. The smash may have been partly due to your actions (perhaps you braked suddenly to avoid squishing a cat?) but, for insurance purposes, the driver of the following motor-vehicle is almost always deemed to be primarily at fault because he or she should not have been tail-gating. Because of this so-called presumption of liability there are rarely any quibbles from the insurance company representing the tail-gater, and they will cough for the damage caused to your car. If there are mitigating circumstances – that un-squashed cat, for instance – these can be used by the tailgater’s insurance company to try and reduce any pay-out.

While the presumption of liability in car shunts is as traditionally British as fish-and-chips, there is no blanket presumption of liability in smashes involving motorists and other road users, such as cyclists or pedestrians. In this respect Britain is out on a limb, in the company of the likes of mighty Malta. “Presumed liability” for all road users is the norm in almost all other European countries. In France, Italy, the Netherlands and pretty much everywhere else – including Germany, land of Mercedes-Benz, Opel and BMW – it’s accepted by insurance companies that driving is inherently risky to those not protected by steel-and-aluminium exoskeletons. Just as a tail-gating driver is presumed to be at fault in any shunt so motorists in most of Europe are deemed to be at fault – for insurance purposes – when they hit any and all other road users.

In countries where folks own more cars than us, and drive them more, too, cyclists and pedestrians who are hit by cars are automatically compensated via the insurance policies of the motorists concerned. In Britain (and other major world-players, such as Cyprus) injured cyclists and pedestrians have to claim damages from the driver, which usually means lengthy, costly and often fruitless litigation against an intransigent and inherently unsympathetic insurance company. Sadly, some affected parties are not around to fight, and their grieving families have to battle on their behalf.

Presumed liability shifts the onus of proving that the "accident” was caused by the non-motorised road user on to the driver. If the driver can prove beyond doubt that the cyclist or pedestrian was completely at fault, the motorist’s insurance company wouldn’t have to pay a penny. (Naturally, this would be a rare case because the very action of propelling a heavy and theoretically-fast motor-vehicle on the public highway, when other transport modes are often available, is a de facto admission that a conscious choice was made to use a potentially lethal form of machinery – in effect, taking a bazooka to a game of rock-paper-scissors).

When it’s proposed to extend “presumed liability” to cyclists and pedestrians in Britain all hell breaks loose in our feral mass media. The concept is portrayed as an alien imposition, a dictat from Brussels, a threat to British liberty. There are wild, apocryphal claims about cyclists throwing themselves in front of moving motor-vehicles in order to claim juicy compensation. Such claims were bandied about recently when Olympic cycling star Chris Boardman broached the subject of presumed liability in an interview in London’s Evening Standard.

Reading this piece the head of transport at the Institute of Economic Affairs saw red. Richard Wellings, a libertarian economist with a distaste for cycling-as-transport, claimed that Boardman’s lobbying for presumed liability would result in “special treatment for cyclists under the law” that “undermines fundamental principles of justice.”

Such claims are swallowed whole by the mass media but those journalists who bother to do a modicum of research would quickly discover that presumed liability is a civil matter not a criminal one and, as is shown from the smash-from-behind example, the concept of apportioning blame for insurance purposes has been an accepted practice in Britain for many years.

RoadPeace wants to see the reversal of the burden of proof in collisions between motor vehicles and pedestrians or cyclists. “The onus should be on the driver’s insurance company to prove that the casualty caused the collision,” says a statement from the charity. “We also believe that children, older people and those with disabilities should receive full compensation, regardless of their actions.”

In 2002, Jeremy Clarkson called presumed liability a “loony idea” and asked “when will people understand that roads are for cars and that there is no danger at all from speeding motorists if walkers and cyclists steer clear?”

Of course, Clarkson’s question was tongue-in-cheek and more serious commentators were clear where blame lies in many “accidents”. Kevin Clinton, head of road safety for the Royal Society for the Prevention of Accidents, said: "In accidents involving adult cyclists it is the driver that is more often at fault.”

RoSPA’s expert added: “When you get your driving licence you are agreeing that you bring with it more responsibility for safety.” (Think of your little pink card not as a basic human right but as a bazooka licence.)

British motoring organisations have often argued that presumed liability would push motor insurance sky-high, but when the measure was introduced in Belgium twenty years ago there was no doubling or tripling of premiums – they rose by just 5 percent.

Presumed liability isn’t a special interest thing, it’s not a measure loaded to favour cyclists. In fact, with presumed liability, should a cyclist hit a pedestrian then the cyclist, for insurance purposes, would be deemed to be at fault, and the injured pedestrian could claim against the cyclist. (The much-aired gripe that “cyclists aren’t insured” doesn’t hold water – most home insurance policies cover occupants, including those on bicycles, for third-party claims out on the street, and cycle organisations such as CTC and British Cycling also include insurance as an intrinsic part of membership.)

Mahatma Gandi, who never drove but walked and cycled once famously said: “A nation’s greatness is measured by how it treats its weakest members.” Presumed liability is about the strong bending to the weak and is a proportionate and equitable measure, not a meal ticket for those pedestrians and cyclists who, in la-la world, plan to throw themselves under moving cars.

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Carlton Reid is the executive editor of BikeBiz.com. He drives a Nissan Note "but not very often." He has written a history book on motoring's cycling beginnings, Roads Were Not Built For Cars. This has been #1 in the automotive category on Amazon.com.