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Would introducing strict liability make a difference to cycle safety?

by Shoosmiths

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The number of incidents of 'dooring' (opening a car door into the path of an oncoming cyclist) has risen 25% nationally since 2011.

Around one in six of these  ‘dooring’ incidents results in serious injury or death.  In a recent example, Kevin Fallon was on his way to work in Dalston, East London in 2010 when the passenger in the front of a car opened a door in his path causing him to crash.   Despite wearing a helmet, Mr Fallon suffered bleeding to the brain and says he still suffers from headaches and mood changes and has an increased risk of developing epilepsy. It was reported in the Evening Standard among other media that Mr Fallon is suing the driver of the vehicle and the passenger in the High Court and hopes to win £200,000 in compensation. 

That same article also says he hopes his case will change the law to a policy of 'strict liability' under which the motorist would automatically be obliged to prove that they were not the cause of the accident.    A High Court judgment of any kind will not achieve that - an Act of Parliament would be necessary.

The UK already has what could be called a form of strict liability (really ‘presumed liability’)  for two-car shunts in which the driver of the rear car is ‘presumed liable’ unless there is clear evidence of fault on the part of the driver of the car in front.  This has not put an end to rear-end shunts and it’s doubtful if car drivers exercise more caution and consideration because of it.  

Strict liability also already applies in product liability cases where liability does not depend on actual negligence or intent to harm, but is based solely on the fact that a breach of an absolute duty to make something safe occurred.

So do we need such a change in law?  Some cycling pressure groups have pushed very strongly for what they see as the ‘Dutch model’. Others say such an insignificant technical change to the law will have little effect and campaigners should aim for more far reaching political changes that would really make a difference by lobbying Parliament for legislation.

In terms of the actual process of litigation such a change would probably do little to improve the current system.  There is always some degree of fault or blame (in a civil, not in a criminal sense) in any road traffic accident. To gain compensation in the civil court, all Mr Fallon would have to do is prove his case 'on a balance of probabilities’, not establish fault or blame ‘beyond reasonable doubt’.  This means that to be successful he would only have to persuade the court that his version of events is more likely than not to have happened.

Even if blame is found to be shared between the two parties and Mr Fallon was found to be contributory negligent in causing the accident, the court would consider the percentage of 'fault' caused by the injured claimant.  The only consequence of that would be to deduct a proportionate amount from any award of compensation. It does not mean that a claim would automatically be unsuccessful.

Would strict liability realise its other supposed benefit of making cyclists less vulnerable on the road?  Making an automatic assumption of fault or blame on the part of the less vulnerable road user is credited with improving road safety in Holland in particular.  However, strict liability in terms of traffic accidents was only introduced in the Netherlands in 1992, long after cycling road deaths and injuries had already started to fall.

The road safety effect seen in Holland probably has more to do with well funded and planned, modern, integrated and often segregated cycling and transport infrastructure rather than changes to the civil law.  To reduce the number of cyclists suffering injury or death, rather than tinkering with the legal system, perhaps similar levels of transport infrastructure planning and investment are needed here in the UK too?

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