I was cycling westbound last night on Roseburn Terrace in the centre of the inside lane with the traffic to my right stationary. A pedestrian then stepped out on my right hand side(from between the "moving" cars) about 2 ft in front of me. Unfortunately I was unable to brake or swerve in time and clipped her leg as she tried to get out of my way, fortunately there seems to have been little damage done and she said and did all the things you'd like someone who has just caused you to crash to say and do. Just wondering though if this crash, in the eyes of the law, would be considered her fault or if pedestrians have right of way at all times. How would strict liability view it?
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Cycling Accident
(7 posts)- Started 10 years ago by paul.mag
- Latest reply from Tulyar
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Posted 10 years ago #
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I saw a pedestrian try to get himself run over (by cars) twice last night.
He ran out without looking on a red light to find a van turning the corner (on green), managed to stop, backtrack and put his hands up in acknowledgement of stupidity and narrowly avoid getting flattened as the van managed to slow
Seconds later he ran back out (again ont he red man) as the lights on the junction changed and nearly got flattened by the car pulling away (again on green) and somehow managed to dance around the front of the car which didn't have a chance to take avoiding action.
In both scenarios I would have said that the pedestrian would have been 100% to blame as they stepped out infront of traffic that was already moving on a green signal and the drivers could not have reasonably anticipated such a daft maneouvre. If he had already been on the road, crossing, before the traffic had made its move I think it would have been different. I would happily have told an officer of the law that it was entirely the pedestrian's fault if he had come to grief on either occasion.
Posted 10 years ago # -
Following is based on my memory of research I did for a blog post on strict liability, so may in fact all be tosh.
Under Dutch (I think) liability laws, pedestrians can't ever have more than 50% liability in a collision with a vehicle. Chilren can't have any. So if you had caused her injury, your insurance would presumably pay for half her costs.
Posted 10 years ago # -
Not sure strict liability makes any difference to how a situation is assessed. It just changes the starting point - it changes who has to demonstrate negligence.
Currently, the burden of proof lies with the claimant so you win unless the pedestrian can show that you were negligent so they would argue that you could have anticipated the possibility of pedestrians crossing between stationary vehicles and could have slowed down, been further to the left etc. If she was crossing between cars, she wouldn't have been wholly invisible so better observation might have allowed you to see her, anticipate her crossing and either stop or avoid her. Your failure to anticipate and to see her and to take appropriate action when she was clearly visible (she would argue) makes you negligent. She has to win that argument for you to be held liable.
If I understand it correctly, under strict liability, the burden of proof lies with you so the pedestrian wins and to escape liability you would have to show that the pedestrian was negligent - she was crossing inappropriately, should have anticipated the possibility of cars and bicycles moving in the other lane, and should have stopped and checked that it was safe to continue crossing. Being taller than most cars, better observation would have allowed her to see you approaching, stop and allow you to pass before continuing to cross. If you win that argument, the pedestrian is held wholly or partially liable, although I think Darkerside is correct and that the pedestrian's liability would be limited.
Posted 10 years ago # -
although I think Darkerside is correct and that the pedestrian's liability would be limited.
It doesn't alter the fact that the driver had made a conscious choice to be driving a motor vehicle that day. The driver could have sought a less potentially dangerous alternative and arranged their transport commitments correspondingly.
Posted 10 years ago # -
@Arellcat: given that this question was about an incident involving a pedestrian and a cyclist, I'm not sure that even strict liability could lay any blame on the motorists...
Posted 10 years ago # -
Strict Liability is the necessary term under Roman Law but is is essentially a presumption on the duty of care which applies across the board for all human activity.
It is best defined by HSAWA 1984, and where a non employee is involved it is generally a Section 3 offence.
The road is the one place where to date the commonsense approach of HSAWA is not applied. If you are using any equipment which poses a hazard of damage or injury to anyone tangling with it, then you have to demonstrate that you have applied the appropriate duty of care to make sure that no harm arises from your activity, even when that harm arises through the negligence of others.
So in planning to use a motor vehicle you might plan the route to avoid hazards, plan the way the vehicle is used likewise etc. but if that vehicle causes damage or injury by its presence on the road you are liable - amazingly this has been the case since the first 1903 Motor Car Act. All the detail is in place, but the political will to apply it is not there.
By the same token this applies to a bicycle, but the law recognises that the likely liabilities from a cycle crash, are potentially far lower than those for a motor car, which is why the 1903 law made sure that those operating a motor car had sufficient insurance - which would be well beyond the means of most individuals to provide for themselves, hence (with exceptions permitted) all motor vehicles have to be insured by a recognised insurance company.
Posted 10 years ago #
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