The civilised system for civil compensation
Mahatma Ghandi stated that, "A nation's greatness is measured by how it treats its weakest members." RoadPeace believes that the UK is failing this test in the way that it treats vulnerable road users (pedestrians and cyclists) involved in a collision.
At present, 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. Yet pedestrians and cyclists involved in a collision -- who have the least potential to cause death or injury, are usually the only casualty and often the only witness other than the driver -- will often be unable to give evidence due to the injuries sustained.
What we want
In cases of civil compensation, RoadPeace is calling for 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. 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.
What about "innocent until proven guilty"?
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.
Strict, stricter, driver or presumed liability?
Previously, RoadPeace referred to this as both ‘strict liability’ and 'stricter liability' but we believe this term can be misleading. ‘Strict liability’ may imply that in every crash, the motor insurance company will be held liable for civil compensation, regardless of the actions of the pedestrian or cyclist. And we do argue for this for collisions involving pedestrians or cyclists who are particularly vulnerable, such as children, older people (70 years old), or those who are less-abled. But with adults (15-69), who account for two-thirds of all pedestrian and cyclist casualties, claims could be reduced if their actions contributed to or caused the collision. Given this distinction, we now prefer to use the term ‘presumed liability’.
Working for change
We have been calling for this change to our civil compensation system for many years. In 1997 we contributed to the Environmental Law Foundation’s report Options for Civilising Traffic. In 2003, we produced our first briefing on this subject when the media misreported that the European Union was trying to hold drivers liable in all collisions with cyclists and pedestrians.
Most recently, we argued the case for Presumed Liability in a presentation at the 75th RoSPA National Road Safety Conference in February 2010.
This issue was highlighted in the media when the head of British Cycling called for driver liability, but unfortunately most of the reporting was incorrect and sensationalised, focusing on ‘lycra clad louts being compensated after running red lights’. We have responded to several bursts of media interest, clarifying that law breaking by able-bodied adults would not be rewarded, and emphasising that injured pedestrians outnumber injured cyclists.
Presumed liability was also the focus for our May 2008 meeting of our All Party Parliamentary Group for Justice for Road Crash Victims. The PEOPIL (Pan European Organisation of Personal Injury Lawyers) president was the guest speaker at this meeting.
Also in 2008, we gave a presentation on this at the Improving Road Safety Conference in London in July and at the Streets for All conference co-organised by Warrington Cyclists and CTC in November. For our 2008 conference we also produced a discussion paper on Presumed liability.
That same year, we conducted a survey of how civil compensation functioned in other European countries and we produced a discussion paper on this for our 15th anniversary conference ‘Improving the Post Crash Response in April 2007. At that conference, we also had a panel discussion with solicitors and representatives of the ABI dedicated to the subject of presumed liability. We have also approached both PEOPIL and APIL to see how we can collaborate in our campaign for the introduction of a presumed liability based compensation system.
As members of the Safer Street Coalition, we also supported the proposed Driver Liability amendment to the Road Safety Bill 2006, drafted by CTC, but this was not successful.
In 2012 we produced a third information sheet on presumed liability.
Further support for reversing the burden of civil liability has been highlighted in a report by the City of Westminster Council which found that car drivers were responsible for 68 percent of crashes with cyclists.
2013 also saw the hosting of an event at the Greater London Assembly by Jenny Jones concerning 'Cyclists and the Law' which was attended by the Mayor's Cycling Commissioner, Andrew Gilligan. At this event presumed liability was voted the most popular topic for discussion.
In June 2013 in recognition of the five years that had passed since the death of Marie Vesco on the A23 her family called for the introduction of presumed liability in the UK. At the same time we released our update on presumed liability in the UK.
Do you want to know more about Presumed Liability?
If you or your organisation would like to know more about Presumed Liability, please contact us to arrange a presentation.