This article was published in 2009, in Newsletter 87.
‘Cycling plan to blame drivers for all crashes’ (The Sunday Times, 20/09/09)
An article in The Sunday Times (20/09/09) stating ‘Government advisers are pushing for changes in the civil law that will make the most powerful vehicle involved in a collision automatically liable for insurance and compensation purposes’ ignited some debate. In one part the article 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 fault, blame, guilt, responsibility, presumed, vicarious 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 a concept which Langenscheidt’s Dictionary translates as ‘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 puts a liability on anyone who operates any device: a machine, train, knife, … However, there is no ‘automatic blame’ (not in the sense of ‘being at fault’, only as ‘holding responsible’) on motorists in Germany and ‘operating risk’ 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 rules. Operating a combustion engine with 50+ bhp to move a tonne of metal on the public highway certainly carries 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 a driver’s partial liability.
Insurers should pay for the risks of motoring
If a pedestrian has been negligent and the motorist has been very careful, this partial liability may be low (e.g. motorist 20%, pedestrian 80%). However, driving within the speed limit on a residential road in Germany is no excuse if the tonne of metal flattens a child. A pedestrian can be seriously injured due to a minor oversight, like not noticing an approaching car. Should a pedestrian crash into a pedestrian (or bicycle) instead, major injuries would be extremely unlikely. It is time that British motor insurances paid out on this intrinsic risk of motoring. 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.
As the DfT has already stated that they are not considering the idea (according to some sources), it is important to look at current British practice. A spokesman for insurance company Admiral said that ‘[i]n many cases the driver will be seen as wholly or partly responsible but we do get cases where we think the driver is completely innocent and handle the claim in that way’. They then added: ‘Therefore it does not follow that you can always automatically blame the driver as it may simply not be their fault.’
Operating risk in the absence of fault
In the absence of the concept of ‘operating risk’, a lorry driver killing a cyclist may not be held responsible if he can prove that he could not see the cyclist. An inherent risk of operating a lorry in an urban area is that the driver will run something or someone over and therefore (in Germany, the Netherlands et al) all drivers have to be insured accordingly, as operating risk applies independently of being ‘at fault’. With the concept of ‘operating risk’ as used in Germany, if the lorry driver was careless or not will matter only in determining if the driver was at fault. The insurance will have to cover the costs and damages the cyclist suffered, as it covers the ‘operating risk’.
The newspaper coverage describes a proposal which ‘would put (the) most powerful vehicle involved in a crash automatically liable for compensation or insurance claims’ (MailOnline. 21/09/09). This would be different from the practice in Germany as cited by press reports. I think introducing ‘operating risk’ would be a sensible and important step forward. Such a change would also lead to enforcing liability insurance on cars as insurance cover will be required even for accidents where the driver is not at fault (the problem of uninsured cars does not exist on German or Dutch roads). With an alleged 1.2 million uninsured drivers on Britain’s roads and a new risk concept (i.e. operational risk) to cover, the cycling campaigners’ ally on this could well be the insurance industry.
Insuring the operating risk ensures payouts to accident victims
Most importantly, establishing ‘operating risk’ in law should help to instill the fact in motorists’ brains that operating a heavy and powerful motor vehicle is a much greater risk to others than e.g. riding a bicycle. This might help to prevent drivers from invading cycle lanes and advanced stop lines and might even make motorists respect urban speed limits as the ‘upper limit’.
Drivers should be liable for the operating risk of cars and be insured accordingly
If only a few more of the accidents with cars that lead to permanent disability or death every year resulted in motor insurers having to pay damages and maintenance for a lifetime, instead of leaving vulnerable road users (or their dependants) impoverished and inadequately maintained by social services or the tax payer, then this change would be worth making.