Is this true? [Drivers to take blame for cycle crashes?]

[Redlight]

And the fact that a layman does not understand legal terminology seems to me to be the primary cause of badly written press articles.   Even worse is then the reading and inevitable presumptions made on top of that by both jouro and reader.

Too true but sadly often the result of poorly written press releases or briefing documents in the first place. I spend a lot of my professional time translating "expert" speak into plain language.  You might be surprised how many clever, well-educated people cannot express themselves clearly in print.

That feeds through to the journalists who often have to re-hash said material and will rarely have or spend the time necessary to assess thoroughly or challenge what they are being given.  In the past that was less of a risk as there were sub-editors who would pick up on anything that didn't 'feel' right and subject the journalist to further questioning or, in some cases, even call up the original source to check.  (I recall being called one evening by a sub at the Daily Telegraph in the pre-Barclay Twins days to confirm that I definitely meant biennial and not biannual in a briefing note that I had written.) Nowadays, some newspapers and most online media don't even have subs or fact checkers. And it shows.

The same applies to figures - which is how you can get a building society releasing data showing that the rate of house price decline had slowed being reported as "house prices continue to fall" in the Mail and "house prices rising again" in the Express on the same day.

[Mr Larrington]

AFAICT the original article is Clearly Bollocks and was written by an FLJS too lazy actually to ascertain the facts before setting finger¹ to keyboard.  As others have said, similar legislation² has been in place, in countries where cyclists are not held to be a form of vermin, since forever.

1 - Just the one finger, natch.
2 - Similar, that is, to what the gubbinsment advisers are actually proposing, rather than what the FLJS thinks they're proposing

[mattc]

2 - Similar, that is, to what the gubbinsment advisers are actually proposing, rather than what the FLJS thinks they're proposing

On that point ...
None of the countries with similar laws (IIRC) have a 'more powerful' clause. Where did this come from? I haven't seen an actual govt statement.

[iakobski]

2 - Similar, that is, to what the gubbinsment advisers are actually proposing, rather than what the FLJS thinks they're proposing

On that point ...
None of the countries with similar laws (IIRC) have a 'more powerful' clause. Where did this come from? I haven't seen an actual govt statement.

No, and apparently neither have the government.

As far as I can tell the Times ran this story saying "Ministers are considering..." when what's really happenned is Cycling England have asked for this to be included in the forthcoming National Cycling Plan:

"The legal onus placed on motorists when there are accidents with cyclists"

The rest is made up by the Times. In fact, maybe that is made up as well because there's nothing on the Cycling England website about it.

[mattc]

Thanks ARO.

So numerous journos are ranting about stuff made up by each other. Marvellous.

They should be sent straight to the Mitchell&Webb Job Justification Hearings ...

[Polar Bear]

Something in the papers not entirely factual, a bit embellished in fact?  Really?        

The only bit of a newspaper you can trust is the Times Law Reports.   The rest is just bollocks IMO.   

[rower40]

The only bit of a newspaper you can trust is the Times Law Reports.   The rest is just bollocks IMO.   

No, she really IS Sandra, 23, from Essex.  And "Phwooarrgh, what a scorcher" is technically true.

And they're certainly not bollocks...

[Polar Bear]

The only bit of a newspaper you can trust is the Times Law Reports.   The rest is just bollocks IMO.   

No, she really IS Sandra, 23, from Essex.  And "Phwooarrgh, what a scorcher" is technically true.

And they're certainly not bollocks...

When I was a wee lad I used to live next door to a page 3 girl.   I was seven or eight.  I used to be in their house loads, and, on occasion would snuggle up to her, head on breasts....

I still have lunch with her from time to time.   Nearly 40 years later and she's still quite a stunner.   

And, it was all genuine I tell you...   

[Raph]

PB I'm sure you have only the most honourable of intentions...

given that you must hold a licence to drive, it is reasonable to assume you have the skills to avoid incident, where a pedestrian or cyclist might not.

That rather specific "you have the skills to avoid incident, where a pedestrian or cyclist might not" suggests that given that motorists have passed a test and cyclists have not, it might be more reasonable to presume that cyclists are more likely to cause accidents. Some statistics on this are essential to know what's most likely in reality. On here I'm sure we all pat ourselves on the back that motorists are usually at fault - in our own little bubble of self-righteous perfection it's quite believable. Pointers such as "cyclists being more vulnerable are less likely to crash" mean very little, and is no more convincing than "cars having better brakes are less likely to crash". Both those points have mitigating factors - many cyclists are unaware of their vulnerability and many motorists use up the extra margin of better brakes by driving faster. The theories and counter-theories can be put forward till the cows come home, only seeing what actually happens can give us a true picture.

About the vulnerablility point, many people ride as well as drive assuming nothing will go wrong. It's like the argument for deterrents in law, they don't always work because people often carry on as though they'll get away with it, so making a stiffer sentence as a deterrent doesn't work - similarly the deterrent of a broken leg and pretzelled bike doesn't seem to deter cyclists any more than a mangled bonnet and an engine-block-in-the-lap deters motorists from driving like prats. Obviously for some, vulnerability is a factor in riding more safely, but just looking around Oxford on the average evening, I wouldn't say that even the top level of brainy people (assuming all those Oxford-studenty-looking people are actually Oxford students) ride more safely due to being vulnerable. Possibly the only thing that educates some of us cyclists is a few nasty prangs, some of them with motors.

And the fact that a layman does not understand legal terminology seems to me to be the primary cause of badly written press articles.   Even worse is then the reading and inevitable presumptions made on top of that by both jouro and reader.

Do you mean "inevitable assumptions"? I'm trying precisely to get past the journo distortions, but the legals on here don't seem, so far, to be making the proposal look reasonable. I suppose if the insurance industry can put aside a fund to cover damage by uninsured drivers, they can probably put aside some for uninsured cyclists - or maybe that brings us back to the proposal in a sense, though the liability wouldn't be attached to a particular driver.

"The legal onus placed on motorists when there are accidents with cyclists"

Sorry but I still don't get why. Also, what's the plain-English legal definition of "legal onus"?

So numerous journos are ranting about stuff made up by each other. Marvellous.

That's quite common isn't it? That's why I keep asking if anyone knows what the actual proposal is. The mechanism you describe that spreads this kind of story is how all the "Baa Baa Black Sheep banned in schools" and "Christmas to be outlawed" gets passed around and the fascists have a field day.

[mattc]

"The legal onus placed on motorists when there are accidents with cyclists"

Sorry but I still don't get why. Also, what's the plain-English legal definition of "legal onus"?

So numerous journos are ranting about stuff made up by each other. Marvellous.

That's quite common isn't it? That's why I keep asking if anyone knows what the actual proposal is. The mechanism you describe that spreads this kind of story is how all the "Baa Baa Black Sheep banned in schools" and "Christmas to be outlawed" gets passed around and the fascists have a field day.

Good point, we need as much clarity as poss here. I think it is reasonable to assume that the government is looking at a  law just like many other EU nations have. I think the way these work have been extensively explained upthread. If I may repeat the key practical points:
a) Noone will become more likely to be found guilty of a criminal offence.
b) Where it is not clear who was to blame in a bike-car (or ped-car) collision, the motorist will be liable financially for any damages or injuries. Thus the injured parties can claim off the driver's 3rd party cover unless the InsCo can PROVE fault.

Does that answer your question?

[I think there was some confusion spread by this 'more powerful' nonsense, suggesting that Golf 1.8GTI drivers would get rammed by poorer 1.6i drivers, or some such unworkable scenario ]

[Polar Bear]

Raph,

What do you think is reasonable, and how do you think it should be enforced?

It will help me understand your objections I think to know this.

[rae]

a) Noone will become more likely to be found guilty of a criminal offence.
b) Where it is not clear who was to blame in a bike-car (or ped-car) collision, the motorist will be liable financially for any damages or injuries. Thus the injured parties can claim off the driver's 3rd party cover unless the InsCo can PROVE fault. 

It is part (b) that is the problem for me. 

Say two car drivers have a pile up.  They both blame each other until they're blue in the face, the police can't be arsed to sort it out, so no one is going to forensically examine the incident and apportion blame.   So eventually the insurance companies go "ah, fuck it, you've both paid for insurance, knock for knock it is" and eat the costs of their own driver.   This proposal means that cyclists (and others) by default get their costs eaten by the other driver's insurance.   That doesn't seem fair, as for a particular accident, we have no idea whose fault it was.   Basically the cyclists are demanding the benefits of insurance....while not paying for it.  If you want insurance, go and buy some.

[PhilO]

Say two car drivers have a pile up.  They both blame each other until they're blue in the face, the police can't be arsed to sort it out, so no one is going to forensically examine the incident and apportion blame.   So eventually the insurance companies go "ah, fuck it, you've both paid for insurance, knock for knock it is" and eat the costs of their own driver.   This proposal means that cyclists (and others) by default get their costs eaten by the other driver's insurance.   That doesn't seem fair, as for a particular accident, we have no idea whose fault it was.   Basically the cyclists are demanding the benefits of insurance....while not paying for it.  If you want insurance, go and buy some.

I addressed that one upthread:

Of course, we could insist that all cyclists and pedestrians have fully-comp insurance before they leave the house. You'd need to take out cover for your children, obviously - and if you think we live in a risk averse society now, just think about that one for a few minutes.  All those extra policies would add a huge administrative cost  and the resultant legal battles would divert millions from the premiums into the pockets of lawyers. Or we could have a nice simple rule-of-thumb, which simplifies everything, ensures most people are covered, and probably saves money by eliminating the court battles.

I've added the bold, though. If you're going to recover costs for damages to your own stuff from your own insurance, third party cover won't do it - that's there to pay other people for damage which you have caused. If you can show me an cycling policy which is equivalent to a fully comprehensive motor policy that I could go out and buy tomorrow, I'll be very surprised.

I fail to see why people are bleatings about it being 'unfair'. 'Unfair' implies that the motorist suffers some loss, which they don't. The motorist's insurance pays. There is no cost to the motorist. 

Any cost there is (and as stated above, I reckon clearer, simpler rules will save more in court costs than it will cost in claims) will be negligable when spread across all policies. Certainly much, much lower than the current fund to cover losses attributable to ininsured drivers.

[iakobski]

So eventually the insurance companies go "ah, fuck it, you've both paid for insurance, knock for knock it is" and eat the costs of their own driver.   This proposal means that cyclists (and others) by default get their costs eaten by the other driver's insurance.   That doesn't seem fair, as for a particular accident, we have no idea whose fault it was.   Basically the cyclists are demanding the benefits of insurance....while not paying for it.  If you want insurance, go and buy some.

I was knocked off many years ago, hit from behind, 100% driver's fault. After much wrangling the insurance company insisted on "knock for knock" - 50% blame. The upshot was I got 50% of my claim, the driver had claimed nothing (and with 6 months unreceipted public transport costs, the bike was paid for).

I fail to see why people are bleatings about it being 'unfair'. 'Unfair' implies that the motorist suffers some loss, which they don't. The motorist's insurance pays. There is no cost to the motorist.  Roll Eyes

Any cost there is (and as stated above, I reckon clearer, simpler rules will save more in court costs than it will cost in claims) will be negligable when spread across all policies. Certainly much, much lower than the current fund to cover losses attributable to ininsured drivers.

"no cost to the motorist"? Where does the money come from? It certainly won't be spread over all policies, the loss of NCB will be paid by drivers who claim. If the reality is it wasn't their fault but they can't prove it, they are penalised financially.

[mattc]

I fail to see why people are bleatings about it being 'unfair'. 'Unfair' implies that the motorist suffers some loss, which they don't. The motorist's insurance pays. There is no cost to the motorist.  Roll Eyes
...

"no cost to the motorist"? Where does the money come from? It certainly won't be spread over all policies, the loss of NCB will be paid by drivers who claim. If the reality is it wasn't their fault but they can't prove it, they are penalised financially.

But that's no different to hitting another car - if you cannot prove blame, you lose your NCB. As you and Rae have so clearly explained.

[iakobski]

Good point.

Well made.

[nicknack]

It's the same as being held up for a few seconds by cyclists. It makes them froth at the mouth. Held up for hours by other cars is ok though. Cyclists aren't in the same club. So being penalised for hitting another car is fine but not fine if you hit a cyclist.

[PhilO]

"no cost to the motorist"? Where does the money come from? It certainly won't be spread over all policies, the loss of NCB will be paid by drivers who claim. If the reality is it wasn't their fault but they can't prove it, they are penalised financially.

A big assumption there. Why does it have to effect your NCD? Do you lose your NCD if you claim on you windscreen cover? Is there any reason why the rules couldn't be drawn up to treat such losses in the same way? We're talking about claims of the same order of magnitude here, after all. Expensive personal injury claims are likely to be fought on the evidence - effectively only minor property damage would be covered by such rules.  If a payment is made on a 'no fault' basis, I see no reason why the NCD should be effected.

Where does the money come from?

As I've explained above, I suspect that the money won't have to come from anywhere, as there's a very good chance that costs would reduce.  Think about it - we're effectively talking about minor, low-damage accidents here. Buckled wheel, torn jacket and new helmet territory. Plenty here could run up a 4-figure claim on those items, but the vast majority of cyclists (and hence victims) are 'PoBs' (a hateful term) for whom the claim is likely to be a couple of hundred quid at most. Many thousands of claims would add pennies to the average premium, even if we ignore the cost savings associated with a simplified process.

I ask again, what's not to like?

[tom_e]

Aside from how you might enforce protecting the NCD, do you really want to fully protect the driver from any financial impact whatsoever with this legislation?  Doesn't that defeat one of the ideas behind this rule - to try and make drivers a bit more cautious around cyclists?

From the driver's point of view, this turns into a minor technical point about who pays, but it will never personally cost the driver anything kind of flattens the cautioning aspect.


Personally, I like the "who brings the danger to the situation?" argument, but to take away the deterrent aspect would make the whole thing a bit weak and not worth it to me.  I'm kind of on the fence anyway - I like it but I'm not sure the feeling of unfairness it will provoke is worth the small benefit.

[edit last sentence to clarify fence-sitting]

[Raph]

b) Where it is not clear who was to blame in a bike-car (or ped-car) collision, the motorist will be liable financially for any damages or injuries. Thus the injured parties can claim off the driver's 3rd party cover unless the InsCo can PROVE fault.

Does that answer your question?

Give or take that it's the motorist's insurance, not the motorist, yes thank you, it answers the question - and confirms that I don't like the idea, though it's convenient for me as a cyclist. If the driver wasn't at fault then why should his/her insurance pay up? It is after all his/her insurance, it represents him/her, would be paying out on behalf of him/her. I'm insured third-party in case I do something stupid - if I haven't done anything stupid I shouldn't have to claim.

There seems to be an underlying notion that because the insurance company pays out, nobody pays out, as if an insurance company weren't made up of people. By the way don't confuse this bit with sympathy for insurance companies - it's the just that the cost comes from somewhere, ultimately motorists - yes I realize we all love that, but there are enough cases where it is their fault, I don't see why pin it on them when it isn't. I'd find the argument more convincing if you just admitted it's not fair but what the hell's fair in life anyway.

we're effectively talking about minor, low-damage accidents here. Buckled wheel, torn jacket and new helmet territory.

Are we? So in a case of a serious accident where blame couldn't be established, the cyclist's mangled leg, brain damage, loss of livelihood and years of therapy wouldn't be covered? Would the small print be specific that this rule would only cover "minor, low-damage accidents here. Buckled wheel, torn jacket and new helmet", or would it be a financial limit of "a couple of hundred quid at most"? Not that it makes any difference, the principle is the same, I just quibbled that cos it seemed a strange detail.

What do you think is reasonable, and how do you think it should be enforced?

I don't necessarily have to have a reasonable alternative to justify not finding this one reasonable! How is a crash between two cars currently treated if no blame can be established? If blame can't be established then surely liability can't be established? If someone gets injured by falling off a cliff and there's no liability due to factors such as lack of danger signs, what happens there and how is it enforced? If a motorist is not to blame for a prang, they deal with their costs and I deal with mine.

Maybe if those costs are disproportionately different there could be a rule about how to split them, but then we get back towards the "one-size-fits-all" style - though not as unfair as simply always pinning it all on one party rather than the other according to means of transport. Also, there's the point that one chooses one's mode of transport - I wouldn't like to be more liable just because the guy I prang chooses to drive around in a priceless old museum piece so halving the costs puts me into six-figure debt even though I only bent a pedal and scraped a shin.

As I've explained above, I suspect that the money won't have to come from anywhere, as there's a very good chance that costs would reduce.

My arithmetic may be struggling, but for the money "not to have to come from anywhere", the costs would have to reduce to zero. If your point is that insurance companies will see that they will probably pay less this way than they currently do in legal wrangles then perhaps purely pragmatically they will accept the idea and the argument will be academic.

It's the same as being held up for a few seconds by cyclists. It makes them froth at the mouth. Held up for hours by other cars is ok though. Cyclists aren't in the same club.

I agree...

So being penalised for hitting another car is fine but not fine if you hit a cyclist.

if you're driving and hit another car and it's not your fault but it can't be established that it's theirs either, does your insurance still pay for their damage? If so then it would be fair for it to be the same for hitting a cyclist or pedestrian.

one of the ideas behind this rule - to try and make drivers a bit more cautious around cyclists?

Isn't it about drivers that are already being cautious around cyclists but a prang still occurs? There's no blame, but it's being proposed that there would still be liability... if I've understood it right (unlikely!)

I think the feeling of unfairness it will provoke isn't worth the small benefit.

- that's kind of along the lines I'm thinking. THOUGH - many motorists have a permanent feeling of unfairness anyway, so perhaps that's not too much of a factor - they'll be pissed off whatever happens!

[Raph]

Raph,

What do you think is reasonable, and how do you think it should be enforced?

It will help me understand your objections I think to know this.

Sorry - this one again - actually I don't understand what it is that you don't understand about my objection!

Two parties share, by default in the absence of evidence/conclusion/etc to the contrary, the responsibility for an accident - but an organization funded by only one of them pays for all the damage?


If the cyclist isn't fully comp insured, or even if as mentioned above, fully comp insurance isn't available for cyclists, how is that the responsibility of the motorist's insurance?

[tom_e]

one of the ideas behind this rule - to try and make drivers a bit more cautious around cyclists?

Isn't it about drivers that are already being cautious around cyclists but a prang still occurs? There's no blame, but it's being proposed that there would still be liability... if I've understood it right (unlikely!)

Once the accident has occured, yes, I think that's how it works. 

BUT, the fear of being potentially made to pay, whether right or wrong, may still have an increased deterrent effect, both on those who were already cautious and those who weren't so good.

This argument stinks a little, but that doesn't mean it might not be effective.

I think the feeling of unfairness it will provoke isn't worth the small benefit.

- that's kind of along the lines I'm thinking. THOUGH - many motorists have a permanent feeling of unfairness anyway, so perhaps that's not too much of a factor - they'll be pissed off whatever happens!

I vaguely remember someone using that argument in seriousness to justify RLJing. 
  <retires from lit touchpaper...>

[Tim]

One further item - the excess.

The insurance company is going to have the motorist cough up the first £x for a claim anyway. Now if we're reckoning on mostly small claims (which I think this sort of legislation would encourage) then the majority of the cost will be borne by the motorist. And any costs borne by an insurance company will only be distributed across next year's premiums for policy holders.

I still don't like the idea of presumption of anything when it comes to such incidents.

[PhilO]

we're effectively talking about minor, low-damage accidents here. Buckled wheel, torn jacket and new helmet territory.

Are we? So in a case of a serious accident where blame couldn't be established, the cyclist's mangled leg, brain damage, loss of livelihood and years of therapy wouldn't be covered?

No, in those circumstances, the insurance co. would have the motivation to fight the claim through the courts, if necessary, so the evidence would be examined in detail. In practice, a change in rules governing the burden of proof would only effect the small claims which aren't worth fighting. The difference is that at the moment the stronger party (the insurance co.) holds all the cards - they can sit there and say, 'we know your're likely to be right, but we can afford good lawyers - are you going to risk trying to prove it?'. A shift in burden of proof goes some way towards levelling that particular playing field. And yes, that might result in the 'wrong' conclusion sometimes, but I strongly believe that it would be less often than under the current system.

My arithmetic may be struggling, but for the money "not to have to come from anywhere", the costs would have to reduce to zero. If your point is that insurance companies will see that they will probably pay less this way than they currently do in legal wrangles then perhaps purely pragmatically they will accept the idea and the argument will be academic.

That's exactly my point, yes. But the insurers won't do it off their own bat because of all the policy holders shouting 'but that's not fair!'.  

So being penalised for hitting another car is fine but not fine if you hit a cyclist.

if you're driving and hit another car and it's not your fault but it can't be established that it's theirs either, does your insurance still pay for their damage? If so then it would be fair for it to be the same for hitting a cyclist or pedestrian.

Effectively, yes. As described above by Rae WRT 'knock for knock' agreements. Each insurance co. picks up half the bill. On paper, they pick up their own insured's losses but the effect is the same. And in that situation, a completely innocent party will lose their NCD. People grumble about this, but it's accepted. Yet propose a similar default position for collisions with vulnerable road users and suddenly everyone's up in arms.

one of the ideas behind this rule - to try and make drivers a bit more cautious around cyclists?

Isn't it about drivers that are already being cautious around cyclists but a prang still occurs? There's no blame, but it's being proposed that there would still be liability... if I've understood it right (unlikely!)

It's about encouraging  all drivers to be as careful as possible. For some, that will mean no change. Congratulations to them! For others it would make a big difference. To draw a parallel, I accept that, even though I'm a careful driver, I will occasionally stray above the speed limit or misjudge a traffic light, so sooner or later I'm almost bound to get an FPN for something. That's arguable unfair when I'm doing the best I can and others out there are driving like loonies and getting away with it. But it's about the odds - I'll happily pay the (very) occasional fine if I know the system that caught me has a good chance of catching the real idiots.

Two parties share, by default in the absence of evidence/conclusion/etc to the contrary, the responsibility for an accident - but an organization funded by only one of them pays for all the damage?

If the cyclist isn't fully comp insured, or even if as mentioned above, fully comp insurance isn't available for cyclists, how is that the responsibility of the motorist's insurance?

In an ideal world it wouldn't be. But we don't live in an ideal world. The proposed system is a pragmatic one which balances a small / negligable dowside for the motorist against a potentially very large benefit to vulnerable road users.

THOUGH - many motorists have a permanent feeling of unfairness anyway, so perhaps that's not too much of a factor - they'll be pissed off whatever happens!

Now there is something we can agree on!  

[PhilO]

One further item - the excess.

The insurance company is going to have the motorist cough up the first £x for a claim anyway.

This has the same answer as the NCD point above and the same example illustrates it's fallacy: You don't (IIRC) pay an excess for windscreen replacement.

Charging an excess in a 'no fault' situation would be unjust, certainly - so why assume that it would happen?