Copyright: CC-BY-SA-2.0, User: Comrade Foot (Jens Rost), Flickr (http://www.flickr.com/people/56380734@N05/)Posts here often concentrate on infrastructure issues, and many others in Cycle Action work on cycle culture and events and behaviour change. But recent experience has also made us think more about how “policies” influence cycling.

Not just the $$$ policies (though they are huge in terms of change / no change) – but instead the many big and small rules, laws, regulations and guidelines that affect cycling. Some of them are so ingrained that even cycle advocates sometimes have to go: “Wait, that DOESN’T have to be that way.”

This is a small series of blog posts discussing policies to make cycling in NZ safer, more attractive, and more normal. To be clear, this is very much for discussion, not CAA policy – though some topics relate to our policies, or may in time become one of them. The topic:

Should motorists automatically be considered guilty when they have a crash involving cyclists or pedestrians?

What would it mean in (traffic law) practice? It would mean that when you hit a pedestrian or a cyclist with a motor vehicle you would automatically be considered the “at fault” party, unless you can prove you are not responsible.

Such a move would change the “burden of proof”, and create a situation where it is mandatory to really, really be careful with a motor vehicle around people who don’t have shock absorbing metal frames and airbags, and which your vehicle outweighs by a factor of 20.

I can hear the newspaper editorials howling already: Cyclists will become even more dangerous to everyone else (???) – jumping out from behind red traffic lights to throw themselves under our SUVs.* Well, admittedly, some idiots among the cycling populace already try to do that, but I don’t think such a law would create more of them. But it would make drivers a lot more careful around cyclists. And no more judges throwing out cases simply because motorist fault could not be established 100%. If you can show that the cyclist you hit with your car at night was wearing black clothing and had no lights – well, THEN you may be off the hook.

* Bonus question: Would you consider it appropriate that the new law would also make a cyclist mandatory “at fault” when he/she collides with a pedestrian? Again, one could argue that there’s an imbalance here, and the faster “more dangerous” party is the one that has the greater duty of care.

I am a big fan of New Zealand’s ACC “no fault” insurance system. It prevents huge administrative hassles, and keeps our health system thankfully free of American-style lawyers (I am okay with lawyers, I just think they can be more gainfully employed than than doing ambulance chasing!).

But the reason ACC system works with a “no fault” system is that few people throw themselves under a car to gain free medical treatment. Sadly, in situations where one party (motorist) has little bodily harm to fear while casually endangering the other party (cyclist / pedestrian), such an approach doesn’t seem to work as well.

The proposal to change the “at fault” rules may seem horribly radical for New Zealand, but is already in existence in a few countries (is anyone aware of any studies on the impact of such laws?). Also, we already HAVE a very similar law in NZ. If the person in the car in front of you brakes suddenly, and you hit the rear of his car, YOU are at fault (even if he/she only braked because he dropped his mobile phone into the footwell). In our daily reality, that law doesn’t create more crashes – it ensures people behind you are a bit more likely to give you enough space. The same applies once hitting a cyclist or pedestrian becomes a legal offence. [/Irony off – I believe it’s actually already sorta illegal.]

Anyway, what do you think? Guilty as charged, or innocent until proven?

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18 responses to “On the way to Copenhagen I: Guilty motorists

  1. Yes, we need something like this. Drivers don’t have enough respect for cyclists or pedestrians in New Zealand (especially Auckland)

  2. Definitely worth considering, but it may be a bit difficult to get it enshrined in law any time soon.

    I’d like to get things kicked off with an education campaign that suggests the onus of care sits with the vehicle carrying the most momentum. This may be a difficult concept for non-scientists, but momentum is the product of velocity x mass.

    So the bigger you are, coupled with how fast you go, determines your onus of care.

    So for:
    Cyclist vs ped, the cyclist takes care
    Car vs cyclist, the car takes care
    Truck vs car, the truck takes care
    Boy racer vs car – boy racer takes care (travelling faster)
    Boy racer vs light truck – both take care! (momentum similar)

    Cheers

    Steve

    1. Great idea for a campaign, Steve – How about “With great weight comes great responsibility!”

      You could then tailor that to other sub-messages…

  3. Definitely a good idea, and equally logical to apply the same thinking to cyclist/pedestrian collisions.

    Belgium has this ‘strict liability’ and when I lived there I didn’t feel it improved safety much. BUT that’s in the context of a general disregard for rules, road or otherwise, in comparison with NZ. At the very least, it would mean not arguing with insurance companies to get your trashed bike replaced.

    1. Hi James, not sure what you meant – do you think the Belgians had a general disregard for the rules or Kiwis?

  4. …in fact, thinking about it, wouldn’t ACC reduce the need for / impact of strict liability? Since property damage like a broken bike or scratched car is so much cheaper to fix than broken people.

  5. Great if you would make this into a campain,
    works in Germany, along with the principle “the bigger your vehicle, the greater your responisbility”.
    The system here is rotten.
    If I hit a cyclist and say I haven’t seen him, the reaction is that cyclist have to wear high viz gear.
    In Germany the response to the motorist is “Your fault, should have looked twice” and there is consequences if you injure a more vulnerable person in traffic.
    Regards

    smu

  6. This has to happen, of course. There is an obvious duty of care that comes with wielding a weapon as dangerous as a motor vehicle in public, and the law ought to recognise it. This is true to a proportional extent for various kinds of cyclists and pedestrians too.

    What would be unfair and ineffective, however, is to pass such a policy without first altering the physical environment in its jurisdiction — it would send a mixed message. As the quote goes, “if you design streets like gun-barrels, people will drive like bullets” (Ian Lockwood). Until the concrete reality on the ground begins to change shape fundamentally (and predictably), abstract reforms in policy that punish individual behaviour in such a contradictory context will probably be self-defeating.

    Nevertheless, I would love to see this adopted as a formal CAA objective (but conditional upon whole-street improvement).

    It’s also good to see your posts’ focus including non-infrastructure issues, which otherwise seems to mean celebrating pouring new concrete in the bush rather than recovering existing public assets for everyone.

  7. I think there has to be a culpability factor involved. eg. Cyclist at night, wearing dark clothing and no lights, has to be apportioned some blame. Or pedestrians wandering across the street without looking. Improve our game to reduce the blame.

    The other component is not changing the laws, but actually enforcing them. If a motorist runs a red light or doesn’t stop at a STOP sign, and then runs through / over pedestrians or cyclists then there has to be a fairly high penalty. And enforce the driving bans. How often are there repeat offenders that are disqualified from driving who are still driving? And so they are given an extra term of disqualification.

  8. In the cyclist vs pedestrian scenario maybe bikes should have bells on them as standard? I know my $2 shop bell has saved me from numerous potential collisions with pedestrians stepping out to cross the road. More pleasant than shouting at them at any rate. Sometimes wish I had a bell that was audible for car users straddling the cycle lane though!

  9. I have had time to read some for and against arguments from blogs in countries that have these laws and have come to think that best way to improve road safety in New Zealand would be to adopt the Dutch ‘Sustainable Safety’ mantra. Instead of blaming drivers or cyclists we should be solving safety issues by minimising the speed differences between modes of traffic. This does not mean hundreds of km’s of dedicated cycle lanes but can include what the Dutch call ‘parallel lanes’ which are narrowish 30 km/h lanes, off to the side of roads, that service houses. In these lanes it appears that cyclists and pedestrians have right of way over cars. There are a wealth of good ideas that the Dutch have adopted and I would love to many more of them in NZ. Why shouldn’t cul-de-sac’s have raised pedestrian islands at the entrance and be speed limited to 30 km/h? How much time diff would it make to a car over the 300m or so that most of them are? Virtually nothing but the street would be safe for cyclists and pedestrians to wander around on. How nice would that be?

    1. New Plymouth changed the speed limits in its CBD to 30kmh a couple of months ago now (and I believe they’ve done this in areas of other cities too) although I think the actual operating speeds of these streets aren’t much beyond 30kmh anyway.

    2. Bryce, totally agree – that’s part of the package.

      However, the point of this post (series) is to highlight individual policies. And also I already do enough infrastructure articles 😉

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