Presumed Liability Legislation

Bicycle Queenland renewed calls for presumed liability law based on data suggesting that, in crashes involving a motorist and a bicycle, in over 3 quarters the motorist is in fault. In addition they suggest that “There are four key reasons to introduce Presumed Liability Laws in Queensland:

  1. Compensation claims would be resolved more quickly and easily, aligning with Queensland’s compulsory third-party insurance scheme, reducing costs on taxpayers, and easing demand on the court system.
  2. With awareness of Presumed Liability Laws, drivers would exercise greater care and drive more carefully, reducing accidents and making our roads safer.
  3. People would feel safer to walk and cycle more often – international evidence shows a strong link between Presumed Liability Laws and active transport.
  4. Litigation and insurance costs would fall, due to swift and fair compensation – saving individuals, insurers, and the community much-needed time and money.

As a community we must do more to protect our most vulnerable road users and end the tragic death toll of road crashes.”

The RACQ quickly responded/slammed the suggestion claiming that presumed liability laws will do nothing for road safety and this divisive law would overturn the basic premise of being innocent until proven guilty.

Both parties are not entirely correct.

For BQ it is overly optimistic to think driver that habits would immediately change. By far most accidents are unintentional and people are not flawless no matter how many laws are created. Although there is a link between presumed liability laws and increased participation in active transport, it is not the knowledge that you will be swiftly compensated in case of an accident, that will get more people walking and cycling.  People will only cycle more when first and foremost they feel it is very unlikely that they will be involved in an accident at all.

For RACQ it is incorrect to assume the law will mean that the driver is always at fault. In addition the laws pertain to civil law, not criminal law, so it is not about guilt and penalty; drivers will not be hanged at dawn because a cyclist threw themselves in front of their truck. Instead of being divisive, presumed liability laws will unify the insurers behind the drive for improved road conditions and is, hence, the right direction to take for Bicycle Queensland and RACQ together.

The Queensland Government e-petition is open until 12 March.
Two fundamental facts underly the call for presumed liability laws:
1. Our society needs more people to cycle more often to curb booming health care cost, to improve productivity, to maintain traffic flow, to boost local economy… etc
2. In the case of a collision with a car, the cyclists (or pedestrian) will suffer more damage than the motorist.

As in any suggested change it is a good idea to see how other countries have arranged their affairs. The Netherlands is a good example of a nation dedicated to improving cycling conditions. There is no word to describe Presumed Liability Laws in Dutch, but there is article 185 of the WegenverkeersWet (Traffic Law), which is applied in traffic incidents involving a moving motor vehicle and a non-motorised road user. The motor vehicle user is liable for financial damage, unless that driver can prove the incident was caused by circumstances beyond his/her control. The latter involves proven flawlessly driving or that any mistake was not the cause of the incident. If the mistake leading to the incident was made by the non-motorised road user, that mistake has to be so unlikely, that a motor vehicle user could not reasonably have considered it to happen. Interestingly, failing to give way or jumping a red light (deliberately or by mistake) are not considered unlikely events in the Netherlands as they happen regularly! Clearly drivers are not granted ‘circumstances beyond control’ very often at all. The reasoning that the onus is on the driver, is because the driver is the one who voluntarily used a vehicle of which it is widely known that it may cause severe damage to other road users, who are not protected in a vehicle.

Presumed Liability would in that way protect cyclists and pedestrians, but more as an answer to the inequity in the consequences of a crash. The driver must compensate the heavier burden a more vulnerable road user suffers, because of that driver’s decision to take part in traffic in a potentially dangerous vehicle. But any law would consider the boundaries of reasonability for both driver and cyclist or pedestrian.

Again it pertains to civil law, not criminal law. They are a set of rules to decide which insurer pays for what, in yet to be determined circumstances, but taking into account that the more vulnerable road user suffers more (financial) damage. The Queensland Government e-petition is open until 12 March and the Townsville Bicycle User Group joins Bicycle Queensland’s call to pursue changes.

It is very unfortunate that the RACQ has misinterpreted the call to address the premise of inequality on the road and has answered with all the prejudice that was summed up 20 years ago by two Dutch comedians in the parody below.

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