Burden of proof
As things stand in the UK, it is up to the cyclist to show that the motorist was at fault. The motorist does not need to prove anything. This makes it much more difficult for cyclists to succeed with claims following an accident with a motor vehicle.
Presumption of fault
Most countries in Europe, including Spain, France, Italy and Germany all have laws which presume fault on the part of the motorist when there is an accident between a motor vehicle and a cyclist. Outside of the UK only Cyprus, Malta, Romania and Ireland do not have laws presuming fault on the part of the motorist.
Why should there be a presumption of fault?
There are three main arguments in favour of this:-
- In most accidents involving a motor vehicle and a cyclist, the cyclist is always going to come off second best. Cycling accidents often involve very serious injury. This may make it difficult for the cyclist to give evidence about the accident. Put simply. the cyclist needs more protection.
- All too often in cycling, the motorist either; fails to observe the cyclist; or fails to allow for sufficient room for the cyclist leading to accident. A presumption of fault may hopefully encourage safer driving.
- Especially in light of the COVID-19 situation, and also generally, we want to encourage cycling. You are going to encourage more people to take up cycling if you have a presumption of fault than if you do not.
Previous attempts to introduce presumption of fault/no fault liability
In 1934 a Bill was introduced in parliament (The Road Traffic (Compensation for Accidents) Bill 1934) which, amongst other things, proposed that cyclists killed or injured as a result of a road collision with a vehicle would automatically be able to recover compensation without the need to prove that the motorist was at fault. It was in recognised that the cyclist may either be killed or suffer severe injury in an accident and so may not be able to give complete or satisfactory evidence to show fault on the part of the motorist. Despite this, the Bill was not enacted.
In 1978, a Royal Commission on Civil Liability and Compensation for Personal Injury, again recommended, that victims of road traffic accidents, including cyclists, should benefit from a no-fault system. Unfortunately, the report of the Commission was not taken up by parliament.
So, the concept of presumed liability is nothing new.
What happens next?
A number of cycling agencies/charities, including Cycling UK, are lobbying the Government to introduce a presumption of fault. Famous cyclists including Chris Boardman, are trying to raise public awareness to persuade the Government to introduce presumed liability. With the advent of the COVID-19 situation, this presents a very good opportunity to try and persuade the Government to introduce presumed liability.
Almost certainly, Motor Insurers would oppose any introduction of presumed fault or no-fault compensation. There is, however, little evidence to show that having presumed liability in cycling accidents costs insurers more in those countries which have such a system than in the UK, where we do not. If presumed liability does lead to greater road safety, it may even be to the benefit of motor insurers.
If you have suffered an injury and think that you may have a claim, please contact us to discuss the matter on 0800 988 8082 or complete our online enquiry form and a member of our team will get back to you right away.