As a cyclist and PI lawyer, I have heard the calls growing louder for there to be a "presumed liability” for motorists who are in collision with cyclists and pedestrians.
I was out cycling recently and had a very near miss with a passing car. The car driver decided that he wanted to overtake me when I was passing parked vehicles, squeezing through a gap that was not there, causing me to take evasive action before being hit. This was followed by a cry of "ffing cyclist” from the passenger in the passing car.
So what effect would a "presumed liability” law have for motorists in England?
Many cyclists will say that such a law will help make Britain’s roads safer for cyclists and pedestrians by increasing the awareness and caution of motorists.
The system, which incidentally operates in all but five member states of the European Union, would provide for a presumption of liability on a motorist involved in a collision with a more vulnerable road user such as a cyclist or pedestrian, unless the latter can be shown to have been at fault, rather than an injured cyclist or pedestrian having to fight tooth and nail to show on balance of probability, that a driver was at fault in civil cases brought at present, thus shifting the burden to the vehicle driver. but not to the extent that the motorist would be held criminally liable.
By adopting a "hierarchal structure” downwards to reflect the vulnerability of road users, would this not help to protect those who are more likely to be injured in a collision? Let’s face it, a cyclist will always come off second best in a collision with a lump of metal being driven at 20 mph. There has also been a number of cases recently with pedestrians being struck by cyclists, so would the presumed liability then continue along the chain. Why not?
It is argued that such a law could help to improve road safety for cyclists and pedestrians, by encouraging more careful driving but the commonly held view is that there would be widespread disapproval by motorists to such a law. How would this work with insurance? Whilst motorists are required to be insured before they drive, cyclists are not and therein lies part of the problem. Cyclists and pedestrians can claim up the chain to motorists but how many cyclists have insurance to protect themselves if they were the party at the top of the collision chain? Or how many pedestrians would have liability insurance for causing accidents with other users of the highway?
Insurance could be made compulsory for all users of the highway, from pedestrians upwards, but there would always be a number who simply float the rules, as there is now with motor insurance. So would it work after all? Presumed liability would be a start and I for one see no reason why it should not be implemented.