# Motorist 'operating risk'



## Cab (2 Dec 2009)

Nice discussion on the issue of liability in accidents in at the Cambridge Cycling Campaign site:
http://www.camcycle.org.uk/newsletters/87/article9.html


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## Sh4rkyBloke (2 Dec 2009)

Interesting indeed... but am I the only one who thinks WTF at the following:

"For example, in the case of a cyclist who entered the opposite lane and crashed into an oncoming car, the court of Neuburg an der Donau refused the motorist’s demand for 100% damages and established a 3/4 liability to the cyclist and 1/4 to the motorist.

The cyclist in this case has to pay 75% of the TOTAL damages and the motorist 25%. ‘TOTAL’ is important here, as damage to the car could be a few scratches and to the cyclist lifelong disability. 

In such a case the cyclist (or his liability insurance) would have to pay 75% of the costs of repair for the car’s paintwork and the motorist’s insurance would have to contribute 25% to the cyclist’s lifelong subsistence."

So the cyclist goes on the wrong side of the road and is hit by a car... and yet the driver's insurers have to pay 25% of the total cost of supporting the cyclist, while the cyclist has to pay 75% of bugger all for scratching the car.... there's clearly some logic in there that is escaping me! 

If the split is 25/75 then shouldn't the respective insurance companies have to pay 25% of the total cost (repairs and any lifelong support required by the cyclist) while the other party pays the 75%?


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## Cab (2 Dec 2009)

Its to do with how much risk each brings to the situation; while the cyclist may have done the wrong thing entirely, he's not the one bringing a big lump of metal and glass to the party, the other guy is. Thats the point of 'operating risk', its an acceptance that if you're doing something that can harm others more, you accept greater responsibility.


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## Dan B (2 Dec 2009)

The bottom line is whether you believe that the roads are actually public spaces, or are effectively dedicated to motor vehicles with other people allowed on them only at their own risk. 

Germany seems (from the article) to incline to the "public space" side. In the UK we seem not to have a consensus on this point, although there are proponents of each point of view who fervently believe their opinions are self-evidently correct. Railways, by contrast, are clearly dedicated to the vehicles that we expect to see on them.


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## Norm (2 Dec 2009)

coruskate said:


> Germany seems (from the article) to incline to the "public space" side. In the UK we seem not to have a consensus on this point, although there are proponents of each point of view who fervently believe their opinions are self-evidently correct.


It's been a while since I was over there but that was certainly my impression.

The best bit, and it is something which I think we do have in the Highway Code but no-one uses, is that cars must give way to pedestrians or cyclists in the road which they turn into. Therefore, if you are walking across a junction, any car turning into that road should give way to you.

In Germany, or the bits that I lived in 10 years ago, they did this fabulously. It meant that anyone turning into a side-road or a driveway had to give way to anything or anyone on the pavement / cycle path. Motorists would stop half way across a junction to let you walk across.


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## palinurus (2 Dec 2009)

Norm said:


> The best bit, and it is something which I think we do have in the Highway Code but no-one uses, is that cars must give way to pedestrians or cyclists in the road which they turn into. Therefore, if you are walking across a junction, any car turning into that road should give way to you.



It would be good if pavements/ footpaths were continuous and roads had to cross them (smaller roads in urban and residential areas anyway- main routes would need to be treated differently)


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## thomas (2 Dec 2009)

palinurus said:


> It would be good if pavements/ footpaths were continuous and roads had to cross them (smaller roads in urban and residential areas anyway- main routes would need to be treated differently)





That's what I've been thinking recently. A change of infrastructure would change people's behaviour...but it would be expensive (compared to, just do it!).

In the UK, if you are crossing a road, which was clear at the time then the car would have to give way....I think it should be changed so that peds, where sensible, can cross junctions and the driver/rider lets them across before continuing.


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## Dan B (2 Dec 2009)

The proposed "cyclists can turn left on red" change for London would depend on exactly that attitude if it's going to be a success. I fear however that too many cyclists behave towards pedestrians as car drivers behave to them (i.e. unconscionably badly) to make it workable.


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## Sh4rkyBloke (3 Dec 2009)

Cab said:


> Its to do with how much risk each brings to the situation; while the cyclist may have done the wrong thing entirely, he's not the one bringing a big lump of metal and glass to the party, the other guy is. Thats the point of 'operating risk', its an acceptance that if you're doing something that can harm others more, you accept greater responsibility.


I understand that bit... but if the cyclist hadn't been "doing the wrong thing" then there would have been no risk to him/her posed by the car driver (regardless of what they were driving). Extending the logic a bit... if the cyclist was hit by another cyclist and somehow severe damage was caused to the first guy who was "in the wrong" then why should any insurance claim be split by both parties? (presumably in a 50/50 split according to the logic as they both bring the same risk to the situation). It was clearly the first guy's fault, why does the innocent guy have to pay anything? 

Am I missing something obvious with this?


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## Cab (3 Dec 2009)

Sh4rkyBloke said:


> I understand that bit... but if the cyclist hadn't been "doing the wrong thing" then there would have been no risk to him/her posed by the car driver (regardless of what they were driving).



Untrue. This is the difference in road cultures between here and there. There they accept an element of innate risk associated with each activity, here we do not. A single mistake makes you to blame entirely, regardless of the innate hazard posed in what the other guy is doing. There they accept that each activity brings into play a set of hazards.



> Extending the logic a bit... if the cyclist was hit by another cyclist and somehow severe damage was caused to the first guy who was "in the wrong" then why should any insurance claim be split by both parties? (presumably in a 50/50 split according to the logic as they both bring the same risk to the situation). It was clearly the first guy's fault, why does the innocent guy have to pay anything?



Nope, extending that logic both are bringing risk, but as the cyclist who isn't in the wrong brings an infinitesimal amount of innate risk to the situation, the logic of that system would dictate that far greater fault lies with the cyclist in error.



> Am I missing something obvious with this?



No more so than our entire road culture is doing


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## Dan B (3 Dec 2009)

If you were walking down the road carrying a running chainsaw, and someone ran round the corner into you and got their arm lopped off, it would be their fault for running into your path unexpectedly, but it would also be your fault for operating potentially dangerous machinery in a public place.

If you were driving down the road and someone ran round the corner into you and got their arm broken, it would be their fault for running into your path unexpectedly and I doubt that an English court would hold you part-responsible for operating potentially dangerous machinery in a public place. But German law, apparently, would.

The only real difference between the two scenarios is that we expect to see cars on the roads and we don't expect to see chainsaws, but is that actually a good enough reason that anyone who gets tangled up in one "deserved what he got", or should we expect drivers to operate with more care anyway? Or does it depend on the setting? Hitting a child who steps out behind an ice cream van on a residential road is already regarded quite differently from if they run across a motorway


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## GrasB (3 Dec 2009)

Sh4rkyBloke said:


> I understand that bit... but if the cyclist hadn't been "doing the wrong thing" then there would have been no risk to him/her posed by the car driver (regardless of what they were driving). Extending the logic a bit... if the cyclist was hit by another cyclist and somehow severe damage was caused to the first guy who was "in the wrong" then why should any insurance claim be split by both parties? (presumably in a 50/50 split according to the logic as they both bring the same risk to the situation). It was clearly the first guy's fault, why does the innocent guy have to pay anything?
> 
> Am I missing something obvious with this?


Without knowing the full details of the case we simply don't know the situation leading up to these events. If 100% fault wasn't awarded to the cyclist then there may well have been avoiding action the motorist could have taken or a developing situation the motorist should have been aware of & didn't react to the situation properly.

Now, as for the life long care, the cyclist will pay for the other 75% of his required care through living with the disabilities he now has day in, day out. How he pays this is another matter, but the other 75% of the cost is his responsibility to find.


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## gavintc (3 Dec 2009)

Norm said:


> It's been a while since I was over there but that was certainly my impression.
> 
> The best bit, and it is something which I think we do have in the Highway Code but no-one uses, is that cars must give way to pedestrians or cyclists in the road which they turn into. Therefore, if you are walking across a junction, any car turning into that road should give way to you.
> 
> In Germany, or the bits that I lived in 10 years ago, they did this fabulously. It meant that anyone turning into a side-road or a driveway had to give way to anything or anyone on the pavement / cycle path. Motorists would stop half way across a junction to let you walk across.



Having just returned from a week in Germany with work, this ruling is extant. When on a side road approaching a T junction, you must be aware of crossing a cycle lane that has absolute priority before you get to the T junction. You must also ensure that you do not block the cycle path whilst waiting to turn. It works excellently and allows cyclists to use cycle paths to get somewhere quickly rather than give way continually. 

With regard to the first point raised by Norm, I take great delight as a pedestrian in enforcing my right to cross a side road and will demand a car stop for me. It usually brings a blare of a horn and occasionally a confrontation, but I just tell them to read the HC and walk on.


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## jonesy (3 Dec 2009)

gavintc said:


> ....
> 
> With regard to the first point raised by Norm, I take great delight as a pedestrian in enforcing my right to cross a side road and will demand a car stop for me. It usually brings a blare of a horn and occasionally a confrontation, but I just tell them to read the HC and walk on.



The problem with that has been decades of highway design practice that undermines the priorities set out in the HC. To minimise the need for left turning vehicles to slow down junctions have rebuilt with gentle curves, so turning vehicles cut across pedestrians in a shallow turn rather than having to slow right down, making drivers less likely to notice pedestrians and making them assume pedestrians shouldn't be there if they do notice them.


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## palinurus (3 Dec 2009)

jonesy said:


> To minimise the need for left turning vehicles to slow down junctions have rebuilt with gentle curves, so turning vehicles cut across pedestrians in a shallow turn rather than having to slow right down, making drivers less likely to notice pedestrians and making them assume pedestrians shouldn't be there if they do notice them.



That gets my goat that does. Plus there's more road to cross if you cross at the entrance.


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## Norm (3 Dec 2009)

And, indeed, the practice of putting zebra-crossing at the junctions of side-roads. Peds should already have priority, by putting in a crossing, it makes drivers think (conditioning again?) that cars have priority when there is no crossing marked.


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## jonesy (3 Dec 2009)

Manual for Streets reverses this approach, at least in residential areas, but I suspect most highway engineers will continue with their 'tried and tested' approach until forced to do otherwise:

http://www.dft.gov.uk/pgr/sustainable/manforstreets/


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## Tony (6 Dec 2009)

Before I first went touring in Scandinavia, in 1994, I read a book about the rules of the road there produced by a certain automotive association. They described how cycle paths ran up the sides of roads, and (with an obvious tone of "how peculiar!") went on to explain how drivers had to give way to cycles when turning across them.
That sums up a lot of UK drivers' attirudes to roads, and I regularly hear comments about pedestrians crossing "at the wrong place" because there is no marked facility there. This comes back to the case of David Cameron, as well, "RLJing" by not waiting for the green bike at a TOUCAN crossing, which is not a legal requirement, rather a way of slowing selfish motons for the benefit of human beings.


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## summerdays (6 Dec 2009)

Thought provoking article.

Can anyone tell me why Germany Holland etc don't have a problem with uninsured cars and we do? How much does their insurance cost in comparison to ours?



gavintc said:


> Having just returned from a week in Germany with work, this ruling is extant. When on a side road approaching a T junction, you must be aware of crossing a cycle lane that has absolute priority before you get to the T junction. You must also ensure that you do not block the cycle path whilst waiting to turn. It works excellently and allows cyclists to use cycle paths to get somewhere quickly rather than give way continually.



So where does the cycle lane cross the side road in comparison to the junction - is there a car length in front of the cycle lane or does the car driver have to see if its clear from behind the cycle lane? Not having cycled or driven in Germany I just can't imagine how it works in practise?


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## gavintc (6 Dec 2009)

In many examples, and more often in rural settings, the pavement (pedestrian and cycle path) is recessed back from the road by about 20 feet. You can usually get 1 car between the junction and the cycle path. In towns, the cycle path may well be adjacent to the road and it is common to hold back from the road allowing bikes to cross in front. It is hard to explain, but the engineering of the cycle paths seems to work well. The cycle paths and pedestrian routes are commonly shared, but there is a respect for the cyclist and the friction between pedestrian, cyclist and motorist seem to be far less.


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## kbrumann (8 Dec 2009)

*Drivers should be liable for the operating risk of cars and be insured accordingly.*

"With an alleged 1.2 million uninsured drivers on Britain’s roads and a new risk concept (i.e. operating risk) to cover, the cycling campaigners’ ally on this could well be the insurance industry." 

http://tr.im/operatingrisk

 With "Operating Risk" British courts could not treat lack of insurance like an administrative issue, as a risk has to be covered for simply moving the vehicle. Such changes in law would mean result in less uninsured drivers AND cheaper car insurance AND more business for the insurance industry.


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## Dan B (8 Dec 2009)

That's exactly the same link you just posted as the one that started the thread.

Are you the author of the article, by any chance?


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## Bman (8 Dec 2009)

coruskate said:


> If you were walking down the road carrying a running chainsaw, and someone ran round the corner into you and got their arm lopped off, it would be their fault for running into your path unexpectedly, but it would also be your fault for operating potentially dangerous machinery in a public place.
> 
> If you were driving down the road and someone ran round the corner into you and got their arm broken, it would be their fault for running into your path unexpectedly and I doubt that an English court would hold you part-responsible for operating potentially dangerous machinery in a public place. But German law, apparently, would.



I like that analogy. But what if we were to strap a chainsaw to our bike? :?:


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## CopperBrompton (8 Dec 2009)

coruskate said:


> But German law, apparently, would.


I think the article is based on a bit of a misapprehension of the German system.

I'm speaking here only as a regular visitor to the country, so one of the locals may be able to correct me, but I _think_ the article is unknowingly referring to _specific pedestrian-priority zones _in Germany.

These are typically small towns and residential areas away from main roads, generally with speed limits of 30kph or less. In those zones, car drivers are 100% responsible if there is a collision with a pedestrian. A pedestrian can wait for a car to be two feet away, step into the road and it's still the car driver's fault.


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## PK99 (8 Dec 2009)

gavintc said:


> With regard to the first point raised by Norm, I take great delight as a pedestrian in enforcing my right to cross a side road and will demand a car stop for me. It usually brings a blare of a horn and occasionally a confrontation, but I just tell them to read the HC and walk on.




i trust you only do that when you have started to cross before the car begins to turn, if you step off the pavement after the car has started to turn you do not have priority

rule 170: watch out for pedestrians crossing a road into which you are turning. *If they have started to cross they have priority*, so give way


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## kbrumann (9 Dec 2009)

Ben Lovejoy said:


> I think the article is based on a bit of a misapprehension of the German system.
> 
> I'm speaking here only as a regular visitor to the country, so one of the locals may be able to correct me, but I _think_ the article is unknowingly referring to _specific pedestrian-priority zones _in Germany.



Are referring to the article in the Cambridge Cycling Campaign Newsletter (which I wrote)? This is not referring to special zones but to the principle of "Betriebsgefahr" (Operating Risk) in German law; which is not limited to _pedestrian-priority zones_, it is not even limited to cars.


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## kbrumann (9 Dec 2009)

*Motorists' Operating Risk in the Absence of Fault*



Sh4rkyBloke said:


> if the cyclist was hit by another cyclist and somehow severe damage was caused to the first guy who was "in the wrong" then why should any insurance claim be split by both parties? (presumably in a 50/50 split according to the logic as they both bring the same risk to the situation). It was clearly the first guy's fault, why does the innocent guy have to pay anything?
> 
> Am I missing something obvious with this?



You are hitting an interesting point. The reference to the German's Court Judgement in the article is incomplete. Aparently in the first instance a court ruled 25% cyclist, 75% motorist. The cyclist had stated that he got onto the opposite lane by accident after his front wheel made contact with another bicycle. Based on this the motorist appealed on the grounds of this being caused by a cyclists to cyclist accident. However, the appeal court held the decision up on the principle of the motor's "Betriebsgefahr" (Operating Risk"). A tonne of metal is dangerous at speed, and it should be for motorists to insure against this risk.


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## CopperBrompton (9 Dec 2009)

kbrumann said:


> "Betriebsgefahr" (Operating Risk) in German law; which is not limited to _pedestrian-priority zones_, it is not even limited to cars.


Interesting. I'll be in Germany over the xmas break so will ask my German friends about it.


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## thomas (9 Dec 2009)

PK99 said:


> i trust you only do that when you have started to cross before the car begins to turn, if you step off the pavement after the car has started to turn you do not have priority
> 
> rule 170: watch out for pedestrians crossing a road into which you are turning. *If they have started to cross they have priority*, so give way




That doesn't say if a car has started to turn the pedestrian doesn't have priority, does it.


It only says that crossing pedestrians have priority and you should look out for them before turning into a junction....that rule does not say that pedestrians loose priority if the car starts to turn (or can't gain it).


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## PK99 (9 Dec 2009)

thomas said:


> That doesn't say if a car has started to turn the pedestrian doesn't have priority, does it.
> 
> 
> It only says that crossing pedestrians have priority and you should look out for them before turning into a junction....that rule does not say that pedestrians loose priority if the car starts to turn (or can't gain it).




taht is dealt with in rule 7 c for pedestrians:

D. If traffic is coming, let it pass. Look all around again and listen. Do not cross until there is a safe gap in the traffic and you are certain that there is plenty of time. Remember, even if traffic is a long way off, it may be approaching very quickly.


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## Norm (9 Dec 2009)

Are you a lawyer Thomas?  Have a little think about what you wrote. Or, at least, the way I interpret what you wrote because it's not very clear.

If someone is crossing a road into which a car is turning, they have priority. If someone walks across a road which already has a vehicle (car, bus, bike or whatever) in it, they do not have priority. The vehicle enters the road when it crosses the white lines.

Which is another point. This thing about peds having priority if they are already crossing has all been about cars. It works for bikes too, if someone is walking across a road that you are turning into, they have priority if they have started to cross before you enter that road.


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## summerdays (10 Dec 2009)

Norm said:


> Which is another point. This thing about peds having priority if they are already crossing has all been about cars. It works for bikes too, if someone is walking across a road that you are turning into, they have priority if they have started to cross before you enter that road.



Agreed - however given the size of bikes it is often fairly easy to go behind them (note I didn't say squeeze). But some pedestrians will indicate that you are to continue anyway (same as they sometimes do at zebra crossings).


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## thomas (13 Dec 2009)

PK99 said:


> taht is dealt with in rule 7 c for pedestrians:





Norm said:


> Are you a lawyer Thomas?  Have a little think about what you wrote. Or, at least, the way I interpret what you wrote because it's not very clear.



My point was that the rule quoted:
*
rule 170: watch out for pedestrians crossing a road into which you are turning. **If they have started to cross they have priority, so give way*

Does not back up the point made in the post



> i trust you only do that when you have started to cross before the car begins to turn, if you step off the pavement after the car has started to turn you do not have priority



Rule 170 does not give a car priority over pedestrians when they start to make the turn, if the pedestrian is not already crossing. It just does not say that! (I'm not arguing that elsewhere it might be different...but don't make a point with a rule that doesn't say what you're arguing!)




> My view is that cars should give way to pedestrians, if the ped is being sensible. The most vulnerable should always take priority.



+1....it's just good manners really. So many times on the way to UNI a driver will block the bit that I would cross at, just so the can sit behind a waiting car or wait for a few minutes at the junction. It would not add anything to their journey just to let me cross first, and save me having to trek around the back of their car.


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## Norm (13 Dec 2009)

thomas said:


> My point was that the rule quoted:
> *
> rule 170: watch out for pedestrians crossing a road into which you are turning. **If they have started to cross they have priority, so give way*
> 
> ...


 Thomas, I don't think that you were talking about my post, because I didn't mention any "rules", but then you did quote my reply. And I'm not arguing anything, I'm just trying to help you understand what the rules mean.

Your collar-heating appears to be about whether or not the car has started to make the turn. That is, IMO, completely irrelevant. Lose the thought about started to turn or about to turn, that's nonsense because the road which the car is entering could just as easily be straight ahead, with no turning required.

It's about whether or not you have entered the road. The important bit is not about starting to turn or whatever, it's all about whether the car has crossed the white lines which mark the boundary of the road.


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## marinyork (13 Dec 2009)

Norm said:


> Are you a lawyer Thomas?  Have a little think about what you wrote. Or, at least, the way I interpret what you wrote because it's not very clear.
> 
> If someone is crossing a road into which a car is turning, they have priority. If someone walks across a road which already has a vehicle (car, bus, bike or whatever) in it, they do not have priority. The vehicle enters the road when it crosses the white lines.
> 
> Which is another point. This thing about peds having priority if they are already crossing has all been about cars. It works for bikes too, if someone is walking across a road that you are turning into, they have priority if they have started to cross before you enter that road.



It's academic anyway. There's a notorious road here why people swipe into the side road at 25mph. I have priority and can do everything in my power to check before crossing but the speed at which they come makes it a distinct possibility someone will get run over one day. If I do get run over, the police classify it as my fault that I have "carried on walking".

Contrast this with other bits of the world, even places like california where the car is king but if you do that and the ped reports you, you'll have your ass hauled up for remedial lessons for not giving way to the ped.


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