Correcting the Misrepresentation of Presumed Liability

I have written before about presumed liability, when I wrote to my MP about it last year. Presumed liability is the principle that, when a driver is involved in a collision with a cyclist, then unless that driver can prove that the collision was wholly the cyclist’s fault, they are presumed to be liable for any reparations. Various things recently have brought this issue to the fore in the media again, but it is clear that there is a misunderstanding, and possibly deliberate misrepresentation by people who ought to know better but perhaps have their own agenda.

This has been very much evident in several recent articles about an interview the Times had with Mark Cavendish, in which he commented about this issue. This is particularly notable in the original Times article, and a secondary article by British Cycling. In the interview with the Times, Mark Cavendish said: “In Holland and Belgium the actual law is if the driver of a motorised vehicle has an accident with a cyclist, unless the driver can actively prove it was the cyclist’s fault it is the driver’s fault”. Both of the reports add to the end of that quote: “There is an assumption of guilt on the driver”, but on watching the video of the interview, you can clearly see that it is the interviewer who put those words into Cavendish’s mouth.

Just as misleading is the misuse of the words “blame” and “fault” in relation to this issue. In the same articles, Mike Penning, the Road Safety Minister, is quoted as saying “Making a motorist automatically at fault for an accident with a cyclist, unless he or she can prove otherwise, would be unfair where someone is driving entirely responsibly — or when there is an accident where no one is to blame.” For someone in his position, who really ought to know better, the use of this misleading language is either negligent, or deliberately designed to mislead for some political purpose.

But, “why is this a problem?”, you might ask. Well the problem is that using this terminology turns a rational argument into an irrational, emotive one. As soon as you use the word “guilt”, you put into the mind of the listener or reader the idea that it is about reversing the important principle of “innocent until proven guilty” that is a cornerstone of British law. Unfortunately, that immediately sets most people against the idea, even though it is a completely fallacious argument. The sloppy use of the terms “liability”, “guilt” and “blame”, as if they were interchangeable, is extremely misleading.

“Guilt”, when used in the phrase “innocent until proven guilty”, is a concept that relates to criminal law. In criminal law, where offences can lead to imprisonment, fines, and other sanctions imposed on someone by society, it is right and proper that society, represented by judges, juries and/or magistrates, needs to be certain that the defendant is guilty of an offence before those sanctions are applied. That is the standard of certainty that is required in criminal law, in which cases are brought against individuals by the state.

Civil law on the other hand, deals, among other things, with disputes between individuals. This is not about the state imposing sanctions on a party; it is about settling arguments between two parties, and the court is acting merely as an arbiter. In road traffic collisions, civil law deals primarily with deciding who should pay what proportion of the costs of putting things right after the incident. If some things can’t be put right, then it is concerned with who should pay what amount of compensation to whom. This is what is meant by the term “liability”: who is liable to pay for what. In many cases, an important factor in deciding liabilities is the question of “blame”, or who was “at fault”, but in many other cases, it is not possible to establish who was to blame or at fault. It is for this reason that decisions in civil cases are said to be made “on the balance of probabilities”, and it is really rather important to understand what this means, so here goes.

Everything that happens has a cause. Something happens which then causes, or partly causes, something else to happen; that’s how the universe works. In the case of a road traffic collision, there will be many actions, carried out by various people, that contributed to the incident occurring. Each of those actions increased the probability that the incident would occur by some amount, and determining by how much the actions of each party increased that probability is the key to determining liabilities. Some of those actions may be said to have blame attached to them; for example: pulling out of a side road into somebody’s path. Some actions may even constitute an offence under criminal law, such as jumping a red light, making the party guilty in law. However, there will be many actions that are blameless, but still contribute to the probability that the incident would occur and therefore impact on liability.

One example of an action that is blameless, but still contributes significantly to the probability that a collision involving death or serious injury might occur, is the very act of bringing a motor vehicle onto a public highway. Walking and cycling are not inherently dangerous activities, but motoring clearly is an inherently dangerous activity. It is for this reason that many people believe that, in a collision between a motor vehicle and a “vulnerable road user” such as a cyclist or pedestrian, the motorist should be presumed to be liable for reparations unless they can prove that the vulnerable road user was wholly responsible for causing the incident. It is also for this reason that motorists are required to carry third party insurance before bringing a motor vehicle onto the public roads, so that there can be confidence that they will be in a position to meet their liabilities should some incident occur.

It is in precisely the situation in which neither party is considered to be “at fault” – cases where it really was “just an accident” – that presumed liability becomes most relevant. Without presumed liability, in such a case, each party is expected to bear their own costs. In the case of a motor vehicle collision with a cyclist, this will often mean that the cyclist, whose actions contributed virtually none of the risk, incurs the cost of replacing an expensive bicycle, recovery from serious injuries and loss of earnings or even loss of life, possibly permanent disability without compensation and the costs of living with that disability, whilst the person whose very action of bringing a motor vehicle onto the road brought nearly all of the risk to the situation merely has to pay for a bit of bodywork and/or paint. This cannot, in any reasonably civilized society, be considered fair.

So, next time you read the argument about presumed liability (or even strict liability), ignore the misleading use of terms like “presumed guilt” or even “presumed blame”. The use of such terms is born sometimes of ignorance and sloppy use of English, and at other times, such as when it comes from someone in authority who should know better, like a government minister, from a deliberate intention to mislead for political ends. It is not about “guilt”, and it is not about “blame”, it is about “liability”; liability for reparations because, on the balance of probabilities, it is the actions of the motorist, blameless as they may be, that bring by far the greatest risk (probability of serious incident) to the situation, and therefore it is the motorist who should normally bear the liability for reparations.

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5 Responses to Correcting the Misrepresentation of Presumed Liability

  1. Tim says:

    100% liability in the Netherlands is a myth anyway.

    And the thing that gets people cycling is not the comfort of knowing that when you get hit, as you lie dying, at least the driver is in trouble.

    The thing that get’s people cycling is the feeling that they won’t be run over in the first place, so cycling is fun again.

    • MrHappyCyclist says:

      Who said anything about 100% liability? Even Mark Cavendish’s statement contained an “unless …”. You are creating a straw man to argue against.

      I don’t see the relevance of the link you posted to the “aviewfromthecyclepath” article. The reference you linked is basically pointing out that strict liability (or even presumed liability) is not the be-all-and-end-all of cycle safety. But there is nothing in my article to suggest that it is. Again, you are arguing against a straw man that you have created here.

      I happen to believe that we should have presumed liability for the simple reason that it is right and just; nothing more and nothing less.

      This is an article about presumed liability. Let’s keep the discussion on topic. There are plenty of places to discuss the relative merits of, and relationships between, different measures to address cycle safety. I may even write an article on that myself; then we can have the discussion you want in its correct place, if you aer interested.

  2. Evidence is everything in a civil claim. There are times when the cyclist is unable to prove the claim against the motorist through lack of evidence. This proposed change would make it easier by putting the onus on the motorist to prove that he or she is not liable.

    I think a point to consider about presumed liability against the motorist in a collision with a pedestrian or cyclist is that a motorist under such a regime will know that in the event of a collision the burden will be on him or her to prove that he was not to blame and that would surely affect the behaviour of motorists to drive more carefully and with more consideration for more vulnerable users of the highway.

  3. Barney Clifford says:

    Excellent explanation, thank you very much

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