CityCyclingEdinburgh Forum » Cycling News

Presumed liability in the Grauniad

(84 posts)
  • Started 9 years ago by crowriver
  • Latest reply from Darkerside

  1. crowriver
    Member

    Hold drivers automatically accountable for collisions with cyclists, say campaigners

    Presuming drivers’ liability for accidents involving cyclists or pedestrians would save lives and encourage more people to take up active transport according to a cycling campaign group.

    (Also mentions Scottish budget CUT for active travel).

    http://www.theguardian.com/uk-news/scotland-blog/2015/mar/27/hold-drivers-automatically-accountable-for-collisions-with-cyclists-say-campaigners

    Posted 9 years ago #
  2. Darkerside
    Member

    Things I would like: that any article on presumed liability includes the words "civil, not criminal" in big text at a very early stage.

    Posted 9 years ago #
  3. Colonies_Chris
    Member

    And it would be helpful to mention that presumed liability also applies down the chain, to cyclists in collisions with pedestrians. Then it would be clear that cyclists are prepared to accept the liabilities which motorists refuse to accept.

    Posted 9 years ago #
  4. Dave
    Member

    What makes you think that cyclists are enthusiastic about being held automatically liable for pedestrian collisions? I'm terribly unhappy about it mostly, it will make dog walkers quite unbearable.

    Wouldn't it be fairer to say that cyclists support this because on the whole they stand to gain a lot, whereas motorists stand only to lose big time?

    Posted 9 years ago #
  5. gembo
    Member

    We have had this before but looks like more of a consensus this time round. Cyclists will be liable to be blamed in collisions with walkers and slow down around them, like we already do. Not sure what pay back there might be for near misses? Witnesses may well say the ped just walked out in front of the bike without looking. In this instance not all the blame would be attributed to the cyclist.

    Dogs should also be able to sue their owners for letting them run off leash in shared use areas. That might be taking it too far?

    I have not hit a ped or a dog yet but had to brake for quite a few mutts this week as back on the dry WoL path (though it is muddy now). Some owners apologise, others own the world. Same as cyclists who are behind you when you stop at the aqueduct to let others off but they overtake you and bomb on to the cobbles. See threads passim.

    Not sure what the prob is as should not make dog walkers insufferable on their own should make everyone a bit more civil to each other like what it is like on the continent unless the British race/races are just plain argumentative.

    I say - Strict Liability, Bring it On

    Posted 9 years ago #
  6. Agree wholeheartedly with gembo.

    Don't see how it makes dog walked insufferable. If their dog was off the lead and they had no control and the owners knew there were cyclists about then there's a degree of culpability that is recognised by the law. In the same way that a cyclist barreling along taking no account of the fact he's on a shared use path will have difficulty dismissing the presumption of liability.

    It'll only make dog walkers as insufferable to cyclists as it'll make cyclists insufferable to drivers.

    Certainly the case that if more articles mentioned that cyclists would be automatically liable to pedestrians it would dispel some of the them and us notion that this is just for the benefit of cyclists.

    And yes, I really really wish there was a recognition this is civil liability, and not criminal guilt. ALSO it's not unknown in our legal system (such as Occupier's Liability), and we're one of only 3 or 4 European countries that doesn't have this in place.

    Posted 9 years ago #
  7. gembo
    Member

    Maybe picts, Celts and Anglo Saxons are just too argumentative for this to work whereas our civilised European friends can rub along together?

    Seems like common sense to me but maybe common sense is just a construct?

    On a good day I can cycle down the WoL path with the birds singing and smiling at one and all, doffing my cap, dodging the dogs. strict Liability would help in the process of making every day a good day.

    Posted 9 years ago #
  8. Dave
    Member

    If their dog was off the lead and they had no control and the owners knew there were cyclists about then there's a degree of culpability that is recognised by the law.

    Right... if you can prove it. Because of the hierarchy, there's a presumption that the cyclist is at fault, and liable for inflated vets' bills, pedestrian whiplash etc. etc.

    Don't get me wrong, we do enough cycling that, on balance, I'm still in the 'pro' camp. It's touch and go though - I think if our interests turned much I would not support it. Perhaps it's just because so much of my cycling involves close contact with peds and their accoutrements and I don't really believe that the same asymmetry of justice exists as between motorists and everyone else.

    (For instance- should there be a presumption that dogs were not adequately controlled in the event of an incident? I would say that applies to 90% of dogs I pass. Where would an evidence-led approach lead us on this?)

    Posted 9 years ago #
  9. The Boy
    Member

    If a dog has incurred any serious vet bills, or someone suffered whiplash, then I'd say it's a safe bet that excessive speed is involved.

    I ride along the old Pinkhill railway and have never had any problems whatsoever with either pedestrians or loose dogs.

    Posted 9 years ago #
  10. stiltskin
    Member

    I suspect Dave means the type of 'whiplash' common in UK accidents and not found so much abroad. I also suspect that hitting a small dog at any speed could cause significant damage as you would effectively run over it.

    Posted 9 years ago #
  11. gembo
    Member

    The balance goes to the weaker party but in this almost completely hypothetical world blame can be apportioned to both parties. Dave would not have to pay all the vet bills if the mutt came out of nowhere on a shared pAth.

    Cyclists arguing that drivers should be liable but that cyclists won't be is not going to attract much support. On the continent the liability filters down the chain. I think this is the most we could ever hope to achieve. I also believe it is a big factor in the civility towards cyclists in continental Europe. Not the only factor as bigger cycling culture, better infrastructure etc.

    Posted 9 years ago #
  12. The Boy
    Member

    @stiltskin

    I used to own two small dogs. One of them once found themselves in the path of a ninja cyclist I hadn't noticed. Cyclist and dog were both fine as dogs tend not to remain stationary when struck by a bike.

    Had they been hammering it along then it's possible some harm might have resulted either to the cyclist or dog, but as it was they were travelling at a sensible pace, apologies were exchanged and everyone went about their business.

    Posted 9 years ago #
  13. I were right about that saddle
    Member

    I'm struggling to see any argument against strict liability. As long as cyclists take their proper place in the hierarchy of liability it just seems like a codification of good manners.

    Raking back through my many years in the saddle, one incident does spring to mind. An exciteable small dog once jumped through the frame of my bike as I cycled down Middle Meadow Walk. Had it misjudged the leap and taken me off....who would have been at fault?

    Posted 9 years ago #
  14. Stickman
    Member

    It might just be where I cycle, but I've never seen evidence of out of control dogs. Like The Boy, I go along the Pinkhill path everyday and have no problems with pedestrians or dogs.

    Any problems I've ever witnessed there have been down to cyclists going fast (for example when my wife was a very novice rider she was "buzzed" by a roadie which gave her quite a fright, also seen a toddler nearly hit with no apology)

    In the absence of completely segregated cycle lanes we ask motorists to take care around bikes. Is it too much to ask that we do the same where there could be pedestrians or dogs?

    Posted 9 years ago #
  15. ih
    Member

    Are we dancing on the head of a pin here? Would the protection of presumed liability extend to dogs?

    It's presumed btw, not strict. Quite a big difference.

    Posted 9 years ago #
  16. The Boy
    Member

    A very good point.

    I had to step into a fairly heated argument between posters on another board when this subject last came up. Once the distinction was explained the individual in vocal opposition was actually fairly amenable to the idea.

    Posted 9 years ago #
  17. ih
    Member

    Rule 56 Highway Code.

    56
    Dogs. Do not let a dog out on the road on its own. Keep it on a short lead when walking on the pavement, road or path shared with cyclists or horse riders.

    Posted 9 years ago #
  18. chdot
    Admin

    Not just paths -

    "

    12. Dogs not kept under control by their owners. In a public open place like Newhailes the Access Code states that dogs should be kept under close control or on a short lead (defined as less than 2m) to avoid causing concern to others. Under close control is defined as a dog that responds to commands and is kept close at heel.

    "

    http://www.nts.org.uk/Downloads/Properties/Newhailes%20Access%20Plan.pdf

    Posted 9 years ago #
  19. I were right about that saddle
    Member

    @ih

    The dog that jumped though my frame was chasing a squirrel. Both were off the leash. Does that complicate matters?

    Posted 9 years ago #
  20. chdot
    Admin

    "Does that complicate matters?"

    Yes.

    Squirrel is either property of CEC or should have be exverminated by CEC.

    Either way, blame 'the council'.

    Posted 9 years ago #
  21. ih
    Member

    @iwrats

    Not a lawyer, but my guess is that had the out-control-dog caused you or your bike damage, you would have a reasonable claim against the person that should have kept the dog on a short lead.

    Posted 9 years ago #
  22. KeepPedalling
    Member

    On balance I think presumed liability would be a good thing. A 20 tonne lorry is very dangerous to a 1.5 tonne car which is very dangerous to a 70kg person etc...

    But then it does get a bit fuzzy...

    A cyclist, while normally the faster person, is after all just balancing on two tyre prints the size of two thumbnails. While a person standing is relatively stable. Also, I do suspect the average cyclist is indeed lighter than the average person. If a stocky guy decided to jump out in front of me I don't fancy my chances!

    Posted 9 years ago #
  23. gembo
    Member

    A while back at flotterstone I read about a pedestrian being injured by a mountain biker and there was the tragic case of the young girl in South East of England who died when hit by chap on bike.

    My panopticon does not cover a wide area (really just the garage) but there might be more ped casualities but not many more?

    Posted 9 years ago #
  24. Min
    Member

    I would be interested to know how many cyclists are killed by pedestrians. I don't know if those statistics are collected. There has already been one this year that I know of and there was one in St Andrew's last year. Also a cyclist seriously injured on the front page of road cc today. Ped unhurt.

    Does anyone know how those would be likely to be dealt with under presumed liability?

    Posted 9 years ago #
  25. gembo
    Member

    Presumed liability would have more wiggle room in these circumstances than strict liability?

    Posted 9 years ago #
  26. paddyirish
    Member

    A golf ball went through the frame of my bike as I was cycling past Aberdour golf course. As the golf ball was travelling much faster than I was, does that mean that the golfer would have been presumed liable if he had hit me?

    Posted 9 years ago #
  27. Min
    Member

    Presumed liability would have more wiggle room in these circumstances than strict liability?

    I think it does in more civilised countries but it does bother me a bit here. We know that if a pedestrian or a cyclist walks or rides into a car the driver is completely unhurt but when when a cyclist or pedestrian collide, both may be hurt or only one while the other is unhurt. I really would like to know the stats on this! It may be more towards 50:50 than we might think?

    I am not saying it is a reason not to have it by the way, I still think it would do more good than harm but it is hard to imagine that anti-cyclist bias will vanish from our wonderful justice system.

    Posted 9 years ago #
  28. ih
    Member

    As I said, not a lawyer, but.....

    Presumed liability would come into play in a civil action when one person is injured and wishes to claim a remedy from the other. In a pedestrian/cyclist crash, if the pedestrian isn't injured there are no grounds for a claim from them.

    I can imagine 4 scenarios where one or both might be injured:-

    1) The cyclist was where s/he shouldn't be - on a footway. Pretty clear cut, the cyclist will be liable, and the pedestrian could claim for any injury, whereas the cyclist (if injured) wouldn't stand much chance at all.
    2) The crash took place on a shared path (segregated or otherwise). Although the cyclist is entitled to be there, s/he is expected to cycle carefully around pedestrians, so again I would say clear cut, the cyclist will be liable for any injury to the pedestrian but not vice-versa. I think the cyclist would have to show that the pedestrian deliberately and knowingly ran into them with no possibility to stop. A tall order.
    3) The crash took place on a road (whether or not the cyclist was in a cycle lane on the road). The presumption is that the cyclist would be liable, because the cyclist should be looking out for pedestrians absent-mindedly walking in the road. I think the cyclist might be able to reduce the liability or transfer it entirely to the pedestrian if s/he can show the pedestrian's action was so sudden and close that a collision was unavoidable. This assumes the cyclist was not riding too fast or too erratically in the first place. eg. if a cyclist went through a green light and a pedestrian stepped onto the road at the last second, I think the cyclist would probably avoid liability, and might even succeed in an action if s/he was injured in the fall.
    4) The crash took place on some infrastructure dedicated to cyclists and only cyclists. I'm not sure such infrastructure exists in this country, but if it did, it would be easier to transfer liability to the pedestrian and claim damages if the cyclist were injured.

    Having thought through this, it does seem as though the cyclist would normally be liable, but that's how it should be.

    Where does this leave the Barnton path situation where a darkly clad pedestrian can't be seen in the pitch dark? Should the cyclist proceed at walking pace, or should the Council be sued for not lighting the path?

    Posted 9 years ago #
  29. Good breakdown ih. The Brnton path situation would, if tested, be determined by the court. In which case could go either way.

    Min, the apportionment of injury isn't really part of the reasoning. As you say in a pedestrian/cyclist incident then the cyclist will likely also suffer injury (compared to a driver/cyclist injury), but the injuries aren't offset, so if a cyclist has done something wrong (a would be presumed) then the injury to the pedestrian would be the basis for the restitution - only actions by the pedestrian which may have contributed to the incident would be considered as mitigation to any apportionment of damages.

    The position isn't actually 'much' different to the current position, but the subtle difference is enough. At the moment an injured sorry would have to prove the active party had caused the damage. Under presumed liability the active party would have to prove they weren't wholly (or at all) responsible for the injury to the other party.

    I did speak with a couple of different Dutch people about this very issue a number of years ago, and they were adamant that... It did nothing to encourage cycling. But I windered if, even if that was the case, it encouraged DRIVERS to behave more responsibly, which made the roads safer, and subconsciously encouraged more people to cycle.

    Ramblings.

    Posted 9 years ago #
  30. Min
    Member

    Min, the apportionment of injury isn't really part of the reasoning.

    Okay thanks, I am getting my head round it but not quite there.

    So what actually is the point of presumed liability if not to help protect the person who is injured?

    Posted 9 years ago #

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