Considering change in civil law of responsiblility

[dellzeqq]

and, yes, if a cyclist is whizzing along, and, as a result of that whizzery a pedestrian is injured, or suffers injury that is greater by virtue of the whizzingness, then the cyclist must be asked to justify the speed. There are plenty of streets in London where it is unreasonable to travel at Dellzeqq speed (let alone Coruskate speed!) and where we both moderate our speed accordingly - but there are cyclists, I'm afraid, who travel as fast as they can pedal in all circumstances.

To take as an example. Oxford Street has kerbs at the edge of the footpaths, but any fule kno that pedestrians step off those kerbs pretty much as and when they feel like it. If you ride down Oxford Street during the daytime at 20mph and hit a pedestrian, then you've got some serious explaining to do, because you could have reasonably foreseen that the pedestrian might have been in the carriageway.

 

[User169]

“In the present state of motor traffic, I am persuaded that any civilised system of law should require, as a matter of principle, that the person who uses this dangerous instrument on the roads – dealing death and destruction all round – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault. To require an injured person
to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.”

Lord Denning (it bears repeating)

 

[theclaud]

(it bears repeating)

“In the present state of motor traffic, I am persuaded that any civilised system of law should require, as a matter of principle, that the person who uses this dangerous instrument on the roads – dealing death and destruction all round – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault. To require an injured person
to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.”

 

[Bad Company]

The item was discussed under the following heading:

"Should motorists pay for cyclists' mistakes?"

Piss-poor, tabloid TV.

Well I suppose that is correct. Why should any group pay for others mistakes?

 

[summerdays]

Well I suppose that is correct. Why should any group pay for others mistakes?

Problem is that in a crash between a car and a cyclist both may pay in one way or another: motorist may have repairs to his car and be out of pocket, cyclist may be killed or seriously injured, plus the damage to the bike that the motorist will probably have seriously undervalued.

The risks are not equal to both parties so the cyclist has more of a vested interest in not colliding with the car what ever the motorists think that we would all go around creating collisions to generate money.

 

[Origamist]

Well I suppose that is correct. Why should any group pay for others mistakes?

That is not what is being proposed though - it is a willfully misleading and reductive question couched in language that both cultivates the poor, persecuted motorist stereotype and unhelpfully polarises what should be a serious discussion.

 

[al78]

Well I suppose that is correct. Why should any group pay for others mistakes?

They shouldn't, but of course that is not what is being proposed.

That heading is a nice example of a straw man.

 

[CotterPin]

Well I suppose that is correct. Why should any group pay for others mistakes?

It is often the cyclist who pays for the motorist's mistake (sometimes with their life and possibly with serious injury)

 

[kbrumann]

Should Motorists be Liable for the Inherent "Operating Risk" of Cars?

Saw this article and can't see a link to it:
http://www.timesonline.co.uk/tol/news/politics/article6841326.ece

Now if only it becomes more than just a consideration.

The article in The Sunday Times states: "Similar policies — which would not extend to criminal law — have already been adopted by Germany and Holland, where transport campaigners say they have had a significant influence in changing attitudes towards cycling."


Translating legal terms like blame, guilt, responsibility, presumed or strict liability from one language and jurisprudence to another is tricky and no guarantee is given for their correct application in this text. German law has known the concept of operating risk (Betriebsgefahr) for about as long as combustion engines have existed, I am not sure how they have established the "changing attitudes". German law presumes liability for anyone who operates any device, a machine, fire, knife, ... However, there is no "automatic blame" on motorists in Germany and this legal principal has little to do with cyclists as such. All German (Dutch, Danish, Austrian, etc) law does is to take into account that a person who decides to operate an inherently dangerous machine will be accountable, even if he/she follows the rulebook. Operating a combustion engine with 50+ bhp to move a tonne of metal on the public highway carries certainly much more risk to others than if the person decided to walk. If an accident happens, this intrinsic risk will be taken into account, resulting almost always in partially blaming the driver.


If a pedestrian has been negligent and the motorist has been very careful this partial blame may be low (e.g. 20% to 80%). However, driving within the speed limit on a residential road will be no excuse in Germany, if the ton of metal flattens a child. A pedestrian can be seriously injured due to a little oversight, like not noticing an approaching car. Would a crash take place with a pedestrian or bicycle instead, major injuries would be extremely unlikely. It is time that British motor insurances pay out on this intrinsic risk of motoring. In the case of a cyclist who entered the opposite lane and crashed into a car the court of "Neuburg an der Donau" refused the motorist's demand for 100% damages and established a 3/4 responsibility 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 in such a case the damages on the car could be a few scratches and on the cyclist lifelong disability. In such a case the cyclist 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.


I think this is a very sensible and very important change. This change should also lead to enforcing liability insurance on cars (the problem of uninsured cars does not exist on German or Dutch roads). In addition, it may help to prevent drivers from invading cycle lanes and advanced stop lines and may even make motorists respect urban speed limits as the "upper limit".



If only a few more of the accidents with cars that lead to permanent disability or death every year will result in the motor insurers having to pay damages and maintenance for a lifetime, instead of leaving the vulnerable road user (or their dependants) impoverished and sub-maintained by social services / the tax payer (i.e. YOU) than it will be worth it!

 

[MartinC]

kbrumann, thanks, an interesting and illuminating post.

 

[Dan B]

In the case of a cyclist who entered the opposite lane and crashed into a car the court of "Neuburg an der Donau" refused the motorist's demand for 100% damages and established a 3/4 responsibility 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%.

Without some more facts (could the driver have avoided the crash? was he driving at a speed from which he would have been able to stop? did he try to? should the driver have been reasonably expected to predict the cyclist would enter the opposing lane? were there other hazards on the cyclist's side of the road? did the cycle suffer mechanical failure, and was it random failure or due to lack of maintenance?) it's hard to say whether I'd consider this fair or not. If it were an apparently competent adult cyclist who rode directly into the path of an oncoming car on an "ordinary" street, without provocation or any apparent reason to do so, though, I don't think it would be. A child cyclist, or a residential street, or a giant hole, that changes the picture.

Was the result of this case actually that the cyclist was permanently disabled and the motorist merely incurred some scratching to his car, or did you add that as an illustration?

Consider: I am cycling down a road with parked cars, somebody opens a door in front of me. I swerve to avoid him and hit a car coming the other day. Who do I sue? Who does the driver of the oncoming car sue? The responsibility seems to lie with the door opener, but there was no actual accident in which he was involved

 

[Origamist]

I echo Martin's sentiments - an enlightening post, Kbrumann.

In addition, it may help to prevent drivers from invading cycle lanes and advanced stop lines and may even make motorists respect urban speed limits as the "upper limit".

Running with this line of optimism, it may also make the 25% of people in the UK who use their car for journeys of less than 2 miles think a little harder about their chosen mode of transport.

 

[gavintc]

I am in Germany on a business trip and this subject came up in conversation. It seems that motorists are aware of cyclists and must watch for them at every junction. There is a general opinion, that you just keep clear, note where they are and give them the road respect. From my 3 days of being driven around by colleagues, the cyclists are all law abiding, stopping at lights and generally behaving themselves. There is clearly a 2 way respect and regard that is absent in UK.

 

[summerdays]

Thank you kbrumann, its interesting to see a bit more flesh on the bones of how it works in other countries. Now could you become a reporter and post something similar in the newspapers...

 

[User169]

If a pedestrian has been negligent and the motorist has been very careful this partial blame may be low (e.g. 20% to 80%). However, driving within the speed limit on a residential road will be no excuse in Germany, if the ton of metal flattens a child. A pedestrian can be seriously injured due to a little oversight, like not noticing an approaching car.

I have a feeling that the ped's/cyclist's "blame" is capped at 50% in NL. If you're under 14 I don't think that you can be "blamed" at all.