The Liability Myth

In Chris Boardman’s otherwise excellent video about Utrecht, there was one dim patch – his claim that “the presumed liability law … ensures every road user is obliged to look after the more vulnerable”.

I don’t know who is briefing Boardman, but it’s extremely naïve to think that anyone is worrying about the fine print in their insurance documents while driving – especially someone who drives badly anyway. If they’re not worried about dangerous driving laws, then they won’t care about a small aspect of their insurance policy.

It’s a popular myth among cycling advocates that presumed liability (or strict liability) changes driver behaviour, even though the reality has been explained time and time again by people who live with it every day.

Yet the claim of massive behaviour change is still repeated, with headlines suggesting it will “hold drivers automatically accountable” and articles suggesting that “motorists [will be] automatically at fault“. (Even if it was true, this sort of language will only alienate huge numbers of people.)

The liability myth also ignores the fact that while almost every European country has such laws (the exceptions being the UK, Ireland, Romania, Cyprus and Malta), the cycling rates and safety statistics vary massively across Europe, with no clear correlation to liability laws.

The mythical land of meek drivers

My introduction to the concept of presumed/strict liability laws – and the hyperbole surrounding it – was on one of the first cycling protests I ever went on. I didn’t even own a bike at the time, so took part on foot instead.

One guy on the protest told us that Canada had an amazing law which put all responsibility on to motor vehicle drivers, and punished them harshly if they caused any harm, causing them to drive extremely carefully. “If you’re walking along, and even put one foot on the kerb, all the drivers suddenly stop,” he enthused. “They’re terrified of hitting a pedestrian, as they know they’ll get the blame. It’s amazing!”

This sounded extremely unlikely to me, but having no knowledge of the situation in Canada, I didn’t challenge it. Having researched the matter since then, I can say that he was talking utter nonsense. (I haven’t been to Canada, but do have friends there, who have confirmed to me that it’s nonsense.)

Liability-law reality

Well, for well over a year now I’ve been living in a country which has presumed liability laws, and I can tell you that the human beings here aren’t fundamentally different from the human beings elsewhere. Here in Berlin, drivers don’t seem to possess that irrational hatred of people cycling as is common in the UK, but they can still be just as inattentive, aggressive or selfish when driving.

Van drivers will still speed up to get through an amber traffic light. Young men still let their testosterone do the driving. People still use mobile phones and sat-navs while driving. Lorry drivers are still paid to deliver as quickly as possible. Taxi drivers still suddenly pull over into the bike lane for their passengers, or creep into the pedestrian crossing while the green man is lit. And arseholes will still pass dangerously close if they decide you’re not riding with due deference to motor vehicles (i.e. in the gutter).

I’m not imagining all this. It’s real, genuine crap driving. I’ve seen so much of it. I was recently “punishment passed” – on the wrong side – so close that I could have stuck my finger in the driver’s ear. Every time something like that happens, I mutter a curse to those who claim that drivers can be forced to be considerate by law. (Even the Stalinist dictatorship of East Germany, with its huge network of ruthless secret police couldn’t achieve compliance from the entire population – so what hope does a bit of insurance law have?)

The only time I know I won’t experience bad driving is where there are no cars (due to filtering) or where there’s a cycleway. Those are the real changes that genuinely make cycling safe and attractive.

After all that, yes to liability laws!

Having said all that, I do believe that the UK should have presumed liability laws – it makes sense that a person who is injured by dangerous machinery shouldn’t have to worry about the financial effects of the incident while they’re recovering. Those expenses should be covered by the insurance of the person operating the dangerous machinery.

But that’s all it is – it’s a piece of insurance law, a civil matter. It has no bearing on criminal liability. Such legislation is a good thing, but it won’t mean that dangerous drivers are automatically considered guilty after a crash. Liability laws aren’t a stick with which militant cyclists can beat drivers, no matter how much some may wish that was true.

So by all means campaign for liability laws, but let’s stop pretending that they’ll create respect on the roads or cause bad drivers to reconsider their behaviour. Instead, campaign for the genuine benefits that they bring, which would be a positive change for all people injured by motor vehicles, way beyond these mythical claims.

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17 Comments

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17 responses to “The Liability Myth

  1. Agree 100% on your conclusion: strict liability law doesn’t change driver behaviour. About as little as a “mutual respect” poster (http://www.berlin-nimmt-rücksicht.de/). It’s infrastructure, all the way!

    However, Germany does *not* have strict liability on the books. Quite the contrary, cyclists are regulary found (at least partially) at-fault for things like not wearing a helmet, even though there isn’t even a helmet law. Drivers regularly escape punishment by simple fleeing the scene of an accident and saying “I don’t know who drove my car”.

    What we do have is strict liability (“Halterhaftung”) which only applies to parked cars. So if your precious motor vehicle’s brake comes off and it rolls over some unsuspecting humans, the owner of the vehicle is automatically at fault. If he sits behind the wheel, no such guarantee.

  2. ORiordan

    I agree with your premise that while presumed liability in itself may be a good thing, it isn’t going to transform driver behaviour, any more than the threat of losing a no claims bonus has transformed driver behaviour.

  3. Paul M

    I’m glad you added your final paragraph. Just as there are apparently cycle campaigners who think that a presumed liability law is a panacea to change driver behaviour and make roads safer, there are others who campaign so vigorously against them (because they challenge the aforementioned claimed benefit) that a message of disunity emerges which makes it easier for motor lobbyists to fight off the demands.

    You are correct to say that presumed liability is purely a civil matter. Its only effect is a modest increase in motor insurance premiums, but that is judged to be rather less than the extra cost of fraudulent whiplash claims. It actually benefits the motorist, in that all talk of who is to blame can be dismissed. A respondent in a civil case therefore is not put in the position of having to admit or deny that they are a bad person (whether they are or not).

    I am firmly convinced of the benefits of presumed liability having known someone who suffered head injuries after she was knocked down crossing a zebra crossing. Despite the egregious nature of the driver behaviour, she fought for years to win compensation adequate to provide meaningful rehabilitation to restore some semblance of her former capabilities. Presumed liability would have resolved her claim far more quickly and more generously so that she could have started treatment far sooner.

    As for Canada, I have no idea what lies behind their far less aggressive driver behaviour, but it is certainly true, and it is a striking contrast to the UK or France. I have seen no incidents of drivers running red lights. Drivers also almost invariably obey a rule which gives priority to cyclists or pedestrians crossing a street into which they wish to turn either left or right. They simply wait, patiently, for the pedestrians to get clear. I haven’t confirmed this, but I sense that Canada still operates the “priorite a droite” rule – everyone gives way to traffic from their right absent traffic signals – which used to apply in France and I believe still applies in Belgium.

    Equally, red light running by cyclists is very rare, and pedestrians almost always wait for a green man before crossing, although my daughter tells me that is because there is a sixty buck fine for “jaywalking”.

    • Hi Paul, I was waiting for your comment 😉

      I actually had you in the back of my mind as I wrote that last section. As you often point out on Twitter, while the claims of behaviour change are vastly overblown and need criticism, we don’t need to throw out the baby with the bathwater.

      Presumed Liability is definitely a good thing, as motor vehicles do bring danger to the space in which they are used, and even the most carefully-driven one may be involved in a genuine accident. Such laws recognise that, and seek to balance that danger with compensation somewhat.

      The story of your friend demonstrates very well why Presumed Liability is needed, and I think the pro-liability cycling lobby are actually doing the concept a disservice by describing it in the way they do. Headlines about “drivers always to blame” and such give a false impression of the effects, and will surely only turn a motor-centric population’s opinion against it.

      Far better to promote PL by describing situations like that of your friend, that could happen to any of us. As a driver (though I do so rarely these days) my conscience would also prefer that my insurance covered the victims of any crash my vehicle was involved in, rather than my insurance company fighting them for every penny, just for the sake of me saving a few pounds a year on my premium.

      As for Canada, I’ll have to look into it some more. Even if the drivers are indeed less aggressive, I still find the “foot on the kerb” story to be laughably ridiculous!

      • Mark Williams

        I have no idea what cycle campaigners actually say about this. The headlines probably bear no relationship to it, though, in much the same way as they don’t with what is said by one of the candidates for a leadership election in one of the UK’s political parties ATM. You ought to be used to this by now: any talk about cycle infrastructure, sustainable safety, reducing `congestion’ or noise and air pollution, etc. is always similarly misportrayed by UK mainstream media.

        One of my spies in the motor insurance cartel asserts that they have already been operating a de facto presumed liability claim processing regime in the UK for some years. But, as we see from the comments in this post wrt. obscure details of civil law elsewhere in the EU, you wouldn’t know it is there unless you go looking for it—and here it’s not documented in publicly available sources… What motorists in the UK (and DE/ PL, presumably?) are very much aware of is that the criminal law will almost never seek justice against their criminality and they routinely and flagrantly commit their crimes accordingly!

        The single use of the word `accident’ in the very same sentence of Chris Boardman’s video was just as much of a faux pas as his [concise and accurate] description of presumed liability, IMO. Just a tiny bit of syntactic fumbling which is hardly worth drawing attention to where it risks overshadowing the more important message which is delivered by the vast majority of the rest of the piece. It hardly leaves you in much of a position to complain about the hyperbole of others if you do :-/.

  4. So I did a little more research: The German word for “strict liability” is “Gefährdungshaftung”. Meaning, as operating a vehicle is dangerous in itself, you are in principle liable for any damages without regard to culpability. This is currently law in Germany.

    However: this does not apply in case of “force majeure” (“höhere Gewalt”). And any unexpected action of someone else is “force majeure”! So if you hit a kid running into the street, you’re not liable. Same thing if someone uses your vehicle without your knowledge and consent.

    So, apparently you’re right after all: strict liability is on the books but it doesn’t change the culture of “the motorist is always right”.

    • Hi Jonas, thanks for your comments and research, they’re very much appreciated. It’s good to know some of the details of the German version.

      And I’m glad that you agree it doesn’t change behaviour – so it’s not just me that doesn’t find Berlin’s drivers to be angelic!

      The way these laws are portrayed in Britain is as if they’re on everyone’s minds, yet the reality is that almost nobody – not even cycle campaigners – has ever even heard of their existence.

  5. Interesting article, but I don’t think that we have a strict liability here in Poland. Do you have any evidence for the claim that the only exception in Europe is UK, Ireland, Romania, Cyprus and Malta?

    Here is an article from a Polish cycle campaigning organisation, in which the author describes “something which could be called a presumed liability” (“domniemaniem odpowiedzialności”) in France and explains how it works there:
    http://www.zm.org.pl/?a=badinter-124
    It’s described as an example to follow. The author doesn’t say explicitly what are the rules in Poland, but he probably assumes that it’s obvious that we don’t have such laws.
    That said, I’m not familiar with the insurance laws and the topic of strict liability is very unpopular here – it’s the only Polish article about it I’m aware of. Polish organisations constantly fight for changing the law so that it doesn’t ignore or discriminate cycling (and they succeeded in most ways), but apparently they don’t bother very much about strict liability.

    UPDATE
    Before posting this comment, I pasted it into Google Translate (translation from English to Polish – to make sure that I hadn’t made any funny mistakes which cannot be detected by the web browser’s spell-checker, e. g. “sh*t” instead of “sheet” 🙂 ) and it translated “strict liability” as “odpowiedzialność na zasadzie ryzyka” (“risk based liability”) – never heard about such a Polish term before (even though I’ve read about “strict liability” in English many times). I typed it into Google Search Engine and an article in Polish Wikipedia showed up. It did describe something which sounded like kinda strict liability (“who uses some dangerous machinery, should be liable for the resulting damage, even if he is not at fault”), but nothing specifically about road traffic so far. It had references to Polish rules (dating back to 1960s), so I checked them and, to my surprise, one of them did refer to road traffic. But it also said: “unless the damage (…) is only a result of a fault of the victim”.
    So “strict liability made in Poland” doesn’t really work like that in the Netherlands or France, it doesn’t necessarily mean that “a person who is injured by dangerous machinery shouldn’t have to worry about the financial effects of the incident while they’re recovering”. If a cyclist collided with a car and if it was his fault, he may not receive damages, even if he crashed unintentionally. Still, the onus to prove that the accident was only a result of a cyclist’s fault is on the driver’s insurance company. Also, only the driver is liable when both parties are at fault, none of them are at fault or when the driver’s insurance company can’t prove who is at fault. Good to know. I suspect that almost only lawyers know this rule (unlike in the Netherlands, it’s hidden deeply in the civil law, not in the Highway Code or any regulation directly related to it), an average cycle campaigner probably doesn’t (even if many of them are aware of similar rules in other countries), let alone the general public. Now when I know the proper Polish name for it, I could find more articles about it, but only on websites about law or insurances, not on websites related to cycling or driving in general.

    • Thanks so much for researching into this and providing your findings. It’s good to hear some details of the Polish law. They sound similar to the Dutch one, as far as I can tell.

      Dutch people are no more aware of these laws than Polish people are – the only people who talk about them so much, or even know of their existence, are British cycle campaigners!

      That Polish, German and Dutch cycle campaigners (let alone drivers) have never even heard of this law is further evidence that it’s not the “behaviour change” magic which it’s so often promoted to be in the UK.

      On a related note, what would you say is the general standard of driving around cyclists in Poland?

      • The significant difference between Polish and Dutch law is that when cyclist is at fault, he won’t receive any damages, while in the Netherlands he’d receive at least 50% (in France – 100%(?)). Children or older people are not treated specially either. But the rest is similar.

        In Poland, roughly as much people cycle as in the UK and from what I’ve read, it seems that the standard of driving is similar to that in the UK 🙂 Certainly it’s worse than in the Netherlands or even Germany. Of course, some drivers are careful, but still many drive too fast, overtake too closely, don’t give priority etc. Drivers openly hostile towards cyclists are not uncommon, too.

  6. David

    I will disagree with your assertion that presumed liability laws do not change driver behaviour. I spent many years in Norway and the attitude there was very much that you are expected to yield to the pedestrian/cyclist, and that rolled over into behaviour on the street. Cars would stop if they thought you were about to cross the road, even where there wasn’t a crossing. In Norway the presence of a crossing doesn’t require that the road markings are clear and distinct, unlike here where Mr Loophole would claim that his client couldn’t possibly be expected to know that it was a real 30mph limit because the sign was 1mm too small.

    So my experience differs from yours. Overall there is a positive change in behaviour, which leads to a subset of the population taking a bit more care, and fewer accidents. And faster recompense when injuries are caused.

    Arguing that bad drivers will ignore it anyway so we don’t need the law is as fruitless as arguing that we should abolish speed limits because some people ignore them.

    • Let’s assume, for the sake of the argument, that your experience of drivers in Norway is typical, and that driver behaviour really is more considerate there.

      How do you know that that improved behaviour is due to a small paragraph in the drivers’ insurance policy? Where’s your evidence that strict liability laws are what make the difference and not, for example, stricter criminal liability laws, or some other factor?

      There are plenty of other countries where drivers are considered to be much less careful than even Britain – and indeed have much worse collision statistics – and yet still have presumed civil liability insurance laws. Plenty of countries have introduced it over the past 30 years, surely we’ll see a sharp dip in collisions immediately after its introduction, no?

      And consider the reports from other countries with such laws, in comments here or linked to from this page, that show how people in those countries aren’t even aware of the term, or the fact that it exists. If it had such a significant effect on driver behaviour, wouldn’t you expect German and Polish cycle campaigners to be aware of the concept at least? Did anyone in Norway ever mention it to you?

  7. rdrf

    None of this is an argument against trying something new here – namely a combination of good law enforcement and sentencing (mainly bans and penalty points) which would target bad driving near cyclists and pedestrians. The Daily Hate Mail would start whinging about a supposed driver liability in criminal law even though it would only be in civil law) and it might well have a beneficial effect.

    Since you agree we should have driver liability (and it would be for pedestrians as well, don’t forget), why not go for a combination of law enforcement/sentencing with the driver liability?

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