Cycling accidents and presumed liability: UK vs Europe

What is presumed liability in the UK?

Under both English and Scottish law, a claimant cyclist must prove, on the balance of probabilities, that a defendant driver was negligent. Many safety campaigners, including the UK’s national cycle charity, the CTC, have called for a new system of "presumed liability" - whereby the defendant driver would be presumed to be at fault unless they can prove otherwise.

In most European jurisdictions, an injured cyclist does not need to establish fault on the part of the motorist. The UK is one of only five countries in Europe, alongside Cyprus, Malta, Romania and Ireland, which have not adopted the presumed liability system.

As an English cycling accident lawyer, establishing liability is often a difficult challenge, especially if the cyclist is unable to give evidence due to the nature of their injuries and/or if there are no independent witnesses.

The presumed liability system recognises that the liability of one's actions should be proportionate to the degree of danger which they impose on other road users. Every year, around 19,000 cyclists are killed or injured in reported road accidents in the UK. The true figures are likely to be higher as the Department of Transport data excludes incidents which go unreported to the police, even if the cyclist’s injuries required a visit to hospital.

Proposed changes to the UK's law could have introduced presumed liability in cycling accidents

The concept of presumed liability is not new. There have been several proposed changes to the law that would assume the driver of a car is at fault when involved in a collision with a cyclist.

The concept of presumed liability in cycling accidents dates back to 1934, when Lord Danesfort introduced the Road Traffic (Compensation for Accidents) Bill 1934 which proposed that cyclists or pedestrians killed or injured as a result of a road collision with a vehicle should automatically be able to recover compensation without the need to prove the driver was at fault.

In the reading of this Bill to the House of Lords, Lord Danesfort observed that pedestrians and cyclists are often unable to obtain compensation because, "they very seldom can get adequate evidence. If a pedal cyclist is killed he is not there to give evidence; if he is seriously injured it is quite impossible for him to give complete or satisfactory evidence of the circumstances in which he was injured." Unfortunately this Bill did not make its way into the statute books.

Similarly, the 1978 Royal Commission recommended that road traffic accident (RTA) victims should benefit from a no-fault insurance system. This recommendation was also rejected. The Safer Streets Coalition, which included the CTC, unsuccessfully proposed that provisions relating to driver liability in collisions with non-motorised users be incorporated into the Road Safety Act 2006.

Primary liability and contributory negligence in cycling accidents in the UK

Primary liability refers to when a person is directly responsible for actions that cause harm. For example, if a motorist fails to give a cyclist enough room, or a cyclist fails to stop for a pedestrian at a traffic signal. Contributory negligence is where a person who has been injured is found to be partially responsible for their own injuries. This means that their actions, or lack of action, contributed to the accident or the severity of their injuries, and as a result, their compensation may be reduced. Within the context, it could be a cyclist who failed to wear a helmet that may have lessened a head injury, or a cyclist who was not aware of their surroundings while riding alongside traffic.

Cycling is a rapidly growing activity in the UK and British cyclists often suffer injuries whilst cycling in Europe. Cross-border litigation, now increasingly commonplace following the implementation of the Fifth Motor Insurance Directive in June 2007, has underlined the significant differences between English law and the rest of Europe.

The Directive provides a framework to enable an injured person to bring a direct action against the insurer in the UK. But, if the defendant driver is resident outside of the UK, the substantive law applicable in the foreign jurisdiction where the accident occurred will usually apply in terms of liability, quantum and limitation.

The courts in England and Wales have long recognised that all road users owe each other a duty of care. However, it is often difficult to determine liability in RTAs as each case will turn on its own facts. Sometimes it is only possible to establish the cause of a collision with the use of accident reconstruction evidence such as, when the claimant is deceased, has sustained brain damage or has no recollection of the incident.

Establishing primary liability is not the only difficulty facing an injured claimant cyclist. Defendants will often seek substantial reductions for contributory negligence for a variety of reasons including failing to wear a cycle helmet, not wearing high visibility clothing and/or failing to use a cycle path. A cyclist is not legally obliged to do any of these things, yet defendants will vigorously seek to reduce a cyclist’s damages award even though their cycling is beyond criticism.

The Law Reform (Contributory Negligence) Act 1945 provides that “where a person suffers damage as a result partly of his own fault, then the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

What the laws in Europe say about cycling injuries abroad

In French RTA cases, under the ‘Badinter law,’ the non-driver victim, save for a few exceptions, is compensated in full for their injuries regardless of fault, unless it was "inexcusable and constituted the sole cause of the damage." However, the driver remains liable for their own faults and so depending on the extent of their fault compensation can be reduced by a certain percentage or even withheld.

In the Netherlands, where 27% of journeys are made by bike, there is strong legal protection for cyclists. Article 185 of the Wegenverkeerswet introduced the concept of presumed liability in circumstances involving a collision between a motor vehicle and a cyclist/pedestrian on a public road.

The exception to presumed liability only occurs where the motorist is at no fault whatsoever, in which case there is no liability. In comparison to courts in the UK, a cyclist involved in an accident with a motor vehicle will almost certainly recover damages. In cases which would have failed in the UK, a Dutch court would only make a relatively small finding of contributory negligence.

In Spain, Article 1 of Royal Decree 8/2004 provides: "The motor vehicle driver is responsible, for the risk created by driving such vehicles, damage to persons or property caused through his driving.” In the event of personal injury to others, the driver is relieved of this responsibility only when it is proven that the damage was due solely to the conduct or negligence of the injured party.

In Denmark, the Danish government recognised the need to protect cyclists by introducing a system of presumed liability in 1986. Drivers are automatically liable unless they can prove that the accident was unavoidable and not due to the negligence on their part. The Danish system of presumed liability only applies to personal injuries and is restricted to motor liability whilst property damage remains fault-based.

There are similar no-fault or strict liability systems in Italy, creating a no-fault liability for damage caused by a vehicle in motion, while Germany makes vehicle owners strictly liable for any damage caused by their operation unless the driver can prove that the accident was caused by “force majeure” or unforeseeable circumstances.

In Sweden, the ‘Traffic Damage Act’ creates a no-fault compensation system for RTAs meaning that the person who suffers injury as a result of a road traffic accident has the right to compensation regardless of fault or negligence by the driver or owner of the car. Liability must be covered by compulsory traffic insurance. The concept of contributory negligence has been almost completely abandoned and is only permitted as a defence in exceptional cases where the victim is guilty of intentional gross negligence.

Changing the UK's cycling accidents law to recognise presumed liability

One of the major obstacles preventing people from taking up cycling in the UK is safety and the risk of cycling accidents. Clearly, cycling would be considerably safer if cyclists were segregated from other traffic, but this will take years to achieve, and in the meantime the amount of cycling accidents would increase. Our densely populated cities and narrow roads pose many challenges to road designers.

However, changes to the law to improve the legal position of vulnerable road users with a strict or presumed liability system could be achieved relatively quickly with legislation which would put the UK in line with its European counterparts.

Such changes would be unpopular with motor insurers and many motorists, but in all probability would substantially increase cycle awareness on the part of all road users and ought to reduce the number of cycling accidents and casualties on our roads.

The principles of strict tortious liability are often associated with stringent insurance requirements which exist in countries such as Sweden or France. Compulsory insurance along with strict liability principles removes the problem of proof for cyclists (and pedestrians) and compensation is awarded automatically.

What to do if you've had a cycling accident abroad or at home

If you are involved in a cycling accident, both home and abroad, the first and most important step is to ensure your personal safety. Move away from any traffic and if you are injured, seek medical attention.

Sustaining a cycling injury abroad can lead to large medical bills if you are not insured properly. If you are taking a trip abroad where cycling is a large part of your activities is important you take out cycling travel insurance as standard travel insurance often does not cover cycling activities beyond leisure riding.

Many European countries have adopted presumed liability systems for road traffic incidences such as this. This means that in a collision between a cyclist and a car, the driver of the car is presumed to be at fault unless they can prove otherwise.

If your cycling injury, whether abroad or in the UK, was not your fault, our specialist lawyers can help. Our dedicated personal injury team can offer specialist support no matter what you situation is. Call us today on 0330 041 5869 or contact us online to arrange a call back.