Burden of proof – How vehicle-first laws curb cycling levels

It’s not easy being a cyclist in the UK. The proper infrastructure is sorely lacking, close calls on the road aplenty, and the tabloids (somehow) blame you for the country’s congestion epidemic. It should come as no surprise, then, that UK’s cycling levels remain a far cry from most European countries. According to Cycling UK, only 4 percent of the respondents cycle daily, and almost 70 percent of over-18-year olds never cycle anymore: “Along with Luxembourg and Spain”, laments the organization, “this is the lowest percentage of all EU countries, except for Cyprus and Malta.”

The reasons for UK’s cycling decay are complex, but safety remains the biggest issue for many bike enthusiasts. In 2016, the number of cyclists killed or seriously injured in the UK was in fact higher than the 2005-2009 baseline average. And yet, despite these and other alarming statistics, the UK and few other EU members (including both Cyprus and Malta) still refuse to take the cue from countries that have actually achieved bothhigh levels of cycling and low casualty rates. One thing they all have in common? Presumed liability laws.

>>Presumed liability does not abolish fault for the cyclist or pedestrian, nor does it automatically hold the driver liable. <<

What is presumed liability?
At the moment, there are 5 countries in Europe that have yet to introduce the concept of presumed liability to their legal systems: Malta, Cyprus, Romania, Ireland, and the UK.

When it comes to road traffic accidents, these outlier nations still operate on a fault-based system, placing the burden of proof on the more vulnerable road user. In practice, this means that if you, as a cyclist, are hit today by a stronger vehicle like a car or a bus in Bucharest or London and wanted to sue for damages, you’d have to prove that the driver of the vehicle was at fault, rather than the other way round.

There are several issues with this:

• Cyclists and pedestrians are far more prone to head injuries, which can affect their recollection of the accident.
• The driver can typically fall back on the insurer to deal with all compensation claims levied against him. Cyclists need to proactively seek representation, exposing themselves to significant financial risks.

Most importantly, a fault-based system fails to take into account the underlying power dynamic on the roads, and the driver’s capability to cause great harm. There is an inherent risk to driving a vehicle – much higher than riding a bike or walking – and this set of rules ignore that fact entirely.

Presumed liability simply shifts the burden of proof – from the more vulnerable road user to the the driver. It does not abolish fault for the cyclist or pedestrian, nor does it automatically hold the driver liable. Rather, in an effort to level the (legal) playing field, it presumes that the driver is liable for the accident, which he can disprove in court.

Presumed Liability around Europe
According to Road Share’s 2013 report, all countriesthat boast both high levels of cycling and low casualty rates have some form of presumed liability legislation in place. In many, it’s been the staple of traffic regulations for decades.

Germany was one of the earliest adopters, originally introducing presumed liability back in 1907. According to article 18 of the German Road Traffic Act (Straßenverkehrsgesetz), “the driver of the vehicle is […] liable. Liability is ruled out if the damage is not caused through negligence of the vehicle driver.”

During the 1980s, France had a pretty similar system to present-day UK. Then,“Loi Badinter” was passed, stating that vulnerable road users will be compensated for damages “and their own fault on their part may not be pleaded against them, save where inexcusable fault on their part was the sole cause of the accident.”

In the Netherlands, unsurprisingly, the law is particularly unforgiving towards the driver. If the victim is over 14, the motorist is 50% strictly liable (regardless of fault), and is presumed liable for the other 50%. And if a victim is less that 14 years old, then only strict liability is applied, i.e. the driver will have to compensate the victim regardless of fault!

Here’s a table, based on RoadShare’s research, that perhaps best illustrates the discrepancies between fault-based and presumed liability systems:

Of course, correlation does not necessarily mean causation, and presumed liability is hardly some sort of cycling panacea. Spain and Austria, for example, both currently have presumed liability laws, yet relatively low levels of active travel. But even the biggest skeptics can’t dispute the breadth of – at the very least – circumstantial evidence, and the fact that presumed liability seems to be an invaluable part of any comprehensive national cycling strategy. So why aren’t the UK, Malta and the rest taking the cue?

Falling Behind
One of the most popular talking points is that presumed liability automatically finds the drivers to be at fault, which makes it easy to oppose. Again, this is simply a misinterpretation: Presumed liability only switches the burden of proof – it does not establish fault.

Another common argument is that presumed liability contradicts the ‘innocent until proven guilty’ clause, which is the backbone of criminal law. However, as even the Maltese papers will admit: “this is a law of civil liability and not a question of guilt.”

It seems, at least when it comes to the UK, that most arguments against presumed liability stem from a vehicle-first mindset, which is rather apparent on the road as well. As a result, there’s a lack of political will to change the present state, or lobby for systemic changes to the traffic laws.

In the end, presumed liability will not magically solve any country’s deep-rooted issues with cycling. But it sure sounds like a good first step. What do you think?

Side note
This is a layman’s interpretation of comparative rules and regulations.