Cyclists v motorists – who should bear the burden of proof?

What is the proposed change?

As it stands, the burden of proof is on the injured pedestrian or cyclist (vulnerable road users) to prove the motor vehicle involved in a collision was negligent or at fault in causing the collision.

If the change called for by Chris Boardman was introduced, there would be strict liability i.e. responsibility would rest with the driver of the motor vehicle unless it could be proved that the negligent actions of the cyclist (or pedestrian) caused the accident.

This would mean that drivers’ insurance companies would be responsible for paying compensation due to injured cyclists and pedestrians, unless it was proved that the victim caused the collision.

The debate

The knee-jerk reaction from most motorists would be to question why the law should be changed so that they become responsible for proving their innocence. We know this likely to be a widely held view since cars are a far more popular mode of transport than bicycles for the majority of journeys.

The arguments in favour of Chris Boardman’s proposal, which are supported by many cyclists and charities such as RoadPeace, are as follows:

• The purpose of the change would be to increase the protection for vulnerable road users, such as cyclists and pedestrians on our roads. The argument being: if the presumption of responsibility were to rest with motorists, they would be more vigilant and would take more care around cyclists and pedestrians, so as to avoid collisions.
• Journeys by bicycle rather than by car are encouraged for a number of obvious reasons. Cycling promotes a healthier population (ultimately reducing the burden on the NHS), reduces traffic congestion, is more environmentally friendly and benefits the economy both in terms of spending in cities and on cycling equipment.
• One of the main barriers preventing people from using their bicycles is the perception of danger on our roads. Road safety may improve because drivers are more vigilant and more careful.
• Such a change would be on terms with most other Western European countries, where this is already the position.
• It is not designed to protect reckless cyclists or pedestrians. In a case where the vulnerable road user has caused a collision, the driver would be able to satisfy the burden of proof.
• It would promote the protection of the vulnerable. In the majority of cases, in a collision between a motorist and a pedestrian or cyclist, it is the vulnerable road user who is likely to come off worse in terms of their injuries. In such a case where neither party is at fault, then the responsibility would rest with the driver. This would be a distribution of risk on terms with the compulsory vehicle insurance. A vulnerable road user injured in a collision may face significant financial hardship if their injuries are severe, as a consequence of their injuries, whereas a driver is less likely to face financial devastation, as their insurer would be responsible for satisfying the claim and their injuries (if any) would usually be far less significant.
• The change may unite motorists and cyclists in lobbying for improved cycling infrastructure.

As a lawyer and a keen cyclist myself, I believe it would be a positive move to implement this change for all of the above reasons. Now is a good opportunity for the Government to show that we are committed to improving the safety of vulnerable road users and encouraging people to make more journeys on foot or by bike.