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As the country carefully begins to emerge from months in isolation, cycling safety advocates are campaigning for the government to introduce a system of presumed liability in road traffic accidents. A system that, like lockdown, would protect the most vulnerable. But what would a system of presumed liability for cyclists look like?

Who would benefit from a system of presumed liability?

A presumed liability system would protect all vulnerable road users. Vulnerable road users would include pedestrians, cyclists and horse riders. And even within that group, the hierarchy of vulnerability would apply. The hierarchy might look like:

  • Pedestrians – the most vulnerable;
  • Cyclists;
  • Motorised vehicles – least vulnerable;

What is Presumed Liability?

There is no set way that the system has to work in the UK. Precisely how the final product looks will be down to the law makers who write the legislation. But you would expect that it will resemble one of the many variants already in place across Europe. The UK are actually one of only five countries in Europe that do not operate a system of presumed liability.

For all the potential variants in Europe, the common and crucial component is to protect the most vulnerable road users.

The starting point is that the least vulnerable road user is considered responsible for the accident. This does not mean that the most vulnerable can never be at fault. It just means that the least vulnerable road user would have to prove that they were not responsible. In contrast to our current system, which always requires the injured party to prove who was at fault.

In practice, in an accident involving a cyclist and a motor vehicle, it would work like this:

  • A motorist injures a cyclist;
  • The motorist is presumed to be responsible;
  • The motorist has the opportunity to prove that they were not at fault;
  • If the motorist cannot prove that the accident wasn’t their fault, they pay compensation.

However, if a pedestrian was injured in an accident with a cyclist it would look like this:

  • A cyclist injures a pedestrian;
  • The cyclist is presumed to be responsible;
  • The cyclist has the opportunity to prove that they were not at fault;
  • If the cyclist cannot prove that the accident wasn’t their fault, they pay compensation.

In many countries you can only avoid paying compensation if the accident was unavoidable, or the injured person was negligent.

How this Differs from our Current System

In short: It completely flips the current system on its head.

Currently, it is always the person making the claim’s task to prove that they are entitled to compensation. This is known as ‘the burden of proof’. So, the burden of proof is said to be on the person making the claim. It makes sense that the person who has decided to make a claim, should have to prove it is valid.

Some might argue that burden of proof protects the system from fraud. But it should be remembered that we have separate measures to punish those found guilty of fraud. Contempt of court is a serious crime, that could see those found guilty imprisoned and/or fined. As is, insurance fraud, which comes with even longer prison sentences.

It’s hard to believe that the burden of proof is more effective than the threat of prison at preventing fraud.

Which System is Better?

Some will say that our current system is the fairest. After all, it protects people from fraudulent and unfounded claims. This is something the Association of British Insurers (ABI) have lobbied for years to do. They promised to cut policyholder’s premiums by the reduction in fraud brought about from the introduction of the Whiplash Reforms or Civil Liability Bill. It is important to question where they would stand on the issue when thinking about if change is likely. And ultimately they are unlikely to be in favour of a change which puts the onus on them and their clients.

But let us think about the injured party; are we protecting them? Are we treating them with compassion? A change in the law might bring a system that protects the injured.

Is asking an insurance company to demonstrate why an injured person is not entitled to compensation too onerous? It’s certainly more compassionate than asking an injured person to prove their case.

Our current system is weighed in favour of the drivers of motorised vehicles. Despite the fact that a driver will (or should) be backed by a professional insurance company. And in most accidents with a vulnerable road user will walk away uninjured.

Vulnerable road users, are frequently injured too – sometimes significantly. This can make gathering evidence difficult – be that because of their injuries or even the trauma. An alternative system which negates the need for an injured party to relive a traumatic event should surely be considered.

A Change in Culture

Some proponents for the change say that changing the way our current laws operate would not only help to balance the scales of justice, but also, restore some balance in peoples’ attitudes towards cyclists as road users.

The UK is widely considered to be a less appealing place to ride bike than many of our European neighbours. And not just because of the weather.

It is a common myth that motorists who pay their ‘road tax’ have more of a right to the road. But road tax was abolished in 1937. Motorists nowadays pay Vehicle Excise Duty, which is effectively a tax on vehicle emissions. It goes without saying that if the same tax applied to cyclists, they would pay £0 – just like the drivers of electric vehicles.

Combine this attitude, with the perceived leniency of punishments for someone found guilty of committing a road traffic offences and the roads can feel like a hostile place for a vulnerable road user.

It is hoped that a legislation change could shift the sentiment.

Not the Perfect Solution

A better system to compensate people who have been injured would be great. But it does not address the cause of the problem.

Along with a compassionate system to compensate those who have been injured, we need improved infrastructure. Roads must be designed to keep vulnerable road users safe. However, these changes will require time and money. Although change in legislation might not have the same impact, it could be rolled out quicker. The positive impact on society’s perception of cycling would help with rolling out the larger, more disruptive changes that are needed to make our roads safe.

What do Pryers Know?

We are personal injury specialists, we are passionate about making our roads safer, but sometimes the worst does happen. If you have been injured in a road traffic accident (whether in a vehicle, on motorcycle / bicycle or as a pedestrian), we can help you claim the compensation you deserve. Speak to our experts to find out how.

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