Motorist 'operating risk'

[Cab]

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

 

[Sh4rkyBloke]

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%?

 

[Cab]

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.

 

[Dan B]

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.

 

[Norm]

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.

 

[palinurus]

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)

 

[thomas]

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.

 

[Dan B]

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.

 

[Sh4rkyBloke]

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?

 

[Cab]

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

 

[Dan B]

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

 

[GrasB]

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.

 

[gavintc]

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.

 

[jonesy]

....

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.

 

[palinurus]

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.