Donna Wynd on strict liability for drivers who hit cyclists
There has been some debate among frogblog commenters here about the part of the Green transport policy which talks about introducing clearer criminal liability for crashes involving active modes so that motorised vehicles are liable unless the pedestrian or cyclist has been reckless. Or, to put it more simply, Jeanette said in her speech on Sunday:
We will create a legal presumption that, so long as a cyclist or pedestrian is observing all road rules and common courtesy, in a collision with a vehicle the motorist will be held responsible.
I remembered hearing former Olympic cyclist Donna Wynd (she’s also an economist, policy analyst for the Child Poverty Action Group, and now Green Party candidate for Manukau East) talk powerfully on this topic back in March. So thought I’d ask her for her thoughts. Here’s what she said:
The purpose of a dominant vehicle law is, in essence, to impose strict liability for collisions between motor vehicles and cyclists, or say cyclists and pedestrians, onto the dominant vehicle - the motor vehicle and the bicycle respectively in this case.
For most urban dwellers one of the most effective Green things they can afford to do is minimise their car use. Currently a large proportion of car trips are over distances that can easily be walked or cycled by most of the population. And we know from numerous local body surveys that many people would like to cycle safely around their communities.
One of the reasons they do not is because cycling is perceived as unsafe. Yet we know that the more cyclists there are on the road, the safer it is. So we need a circuit-breaker, and we need to start seriously debating how to do this.
At present there are two solutions to cycle safety permissible in the limited debate that exists. The first is campaigns asking motorists to be nice, please. But the reality is they do not change driver behaviour.
The other permissible solution is infrastructure, for example cycle lanes. We have a problem here, however. Cycling infrastructure is the responsibility of local authorities, and as the Auckland City Council is so ably demonstrating at present, councils can block cycling initiatives for a Very Long Time.
While other countries have enviable levels of cycle use, and more developed infrastructure, a significant factor in the EU and Japan is laws that assign strict liability to the dominant vehicle in the event of a collision. Here in New Zealand, someone needs to be prepared to take on the car lobby and demand that motor vehicle drivers take greater responsibility for their actions. This would be a step towards making New Zealanders feel confident they and their children can cycle in safety around their communities.
For more on strict liability for the dominant vehicle see this discussion paper [pdf] from the British group RoadPeace, which quotes Lord Denning:
In the present state of motor traffic, I am persuaded that any civilised system of law should require, as matter of principle, that the person who uses this dangerous instrument on the roads – dealing death and destruction all round – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault. To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.
September 24th, 2008 at 4:26 pm
It’s also worth noting that the cyclist or pedestrian is likely to be at a disadvantage, because he or she is more likely to be concussed or unconscious than the driver is.
When I was hit by a car while crossing at a pedestrian crossing, I couldn’t really remember what had happened. It was lucky that another pedestrian had witnessed that the car had actually stopped as if to let me cross, and then suddenly started again, because I couldn’t remember that. And when the driver said he didn’t notice there was a pedestrian crossing there because he was distracted by the fire engine, it was lucky that there were other witnesses who could confirm that the fire engine he was supposedly distracted by didn’t exist.
September 24th, 2008 at 5:00 pm
I’ve also had numerous issues on pedestrian crossings (and footpaths) — many drivers seem to assume that their car has right of way over anything smaller. It’s probably the same mentality that says it’s OK to run a light if it’s only just turned red or to park on yellow lines by a school or crossing.
I’ve not cycled in this country after hearing about and seeing some pretty nasty incidents. If would be great if adopting the dominant vehicle law does actually curb the careless tendencies of certain drivers.
September 24th, 2008 at 5:07 pm
I just remembered this story about someone posting a video of his Christchurch cycling incidents to YouTube…
Video shows dangers of cyclist’s commute
September 24th, 2008 at 5:39 pm
Iran has a similar law that applies to car-motorbike interactions. Seems to work OK. Their traffic is mad.
Last I was bowled, it was by a car that sat at an intersection for ages before suddenley accelerating when I was in front of it. The tendency to overtake a bike then brake and turn left without warning seems common too.
September 24th, 2008 at 6:45 pm
In Dunedin cars like to turn left at the lights through the pedestrians.
I am struggling with pedestrian rage….
September 24th, 2008 at 9:18 pm
I cycled in Japan and it was a real culture shock to note how polite and considerate car drivers were compared with here. So either the strict liability rule seems to works, or they are just naturally more courteous to cyclists. the first might have caused the second.
September 24th, 2008 at 9:37 pm
>>> the first might have caused the second.
Nice thought. But I think it more likely that the second caused the first
September 24th, 2008 at 10:15 pm
I wonder if a profusion of streets too narrow to have separate footpaths or to be driven comfortably at more than a fast walking pace creates the exact opposite mindset than in countries where all roads and streets were designed to accomodate carts and therefore have always provided unmolested travel for wheeled vehicles? Perhaps the Dutch theory that roads are safer without lots of signs and markings should also be applied to footpaths and cycle lanes. Provided this law is passed first, and strictly enforced.
IMHO the Land Transport Act already includes the proposed law, and it’s enforcement is evident in prosecution statistics for collisions involving pedestrians. But it’s not widely known, and that’s half the trick in using laws to change public attitudes. That effect is clearly evident with the introduction of the mandatory seat belt wearling law in 1972. Death and injury stats for drivers, passengers and other road users shows the expected impact of the law occurring in the two years before the first ticket was issued to somebody not wearing their seatbelt. That’s because when the Government announced it’s intention to pass the law at the opening of Parliament in 1971 it was considered so controversial that it became a huge talking point and, once passed, it was decided to have a six month warning period before tickets would be issued, ie from the introduction of the law in April ‘72 till after the election. A similar pattern is evident with the motorcycle helmet law in the 1950s. If the next government was to announce it’s intention to pass this Green proposal into law we should see a reduction in cyclists killed and injured before the law has even made it through the select committee review stage. If we don’t see that effect then we should assume it won’t have the desired effect.
September 25th, 2008 at 7:00 am
No doubt the cyclist will take full responsibility to obey all the traffic rules all the time.
Last time I knocked a motorcyclist of his machine he got done for causing an injury accident (compound fracture to his own leg).
I would have thought current regulation already covers conviction of those who cause an injury accident.
Why new ones?
September 25th, 2008 at 9:22 pm
What about the result of a cyclist to pedestrian incident? I have seen some pretty close calls in the Auckland CBD specially with courier cyclists who change their mind every two seconds as to whether they will act as a pedestrian or a vehicle. I am sure most people don’t mind if you cross with all the pedestrians cyclists so long as you don’t almost cause injury to all the people you cycle through.
September 25th, 2008 at 9:28 pm
rambaldi Says:
September 25th, 2008 at 9:22 pm
> What about the result of a cyclist to pedestrian incident?
If the quote from Donna Wynd is anything to go by, the pedestrian gets the benefit of the doubt, the same as if he or she had been hit by a car.
September 25th, 2008 at 10:03 pm
Would that also apply to SUV vs sedan, wagon vs compact, truck vs SUV? My understanding of Spanish law is that bigger vehicles always have right of way, which is quite disturbing to drive around by all accounts, but works well enough.
Here the cyclist gets hit because he thinks the car driver has seen him and will give way, making that more definite in law might only make more cyclists take that risk. What we really need is more cyclists, like before we had the helmet law.
Oh, and the unmarked streets in Europe are interesting. 30k speed limits, intersections up to 15,000 cars per day by single-lane roundabout, up to 5,000 by open squares. Road-level footpaths. Reduced travel times, greatly reduced accidents, almost no serious injuries. And no bicycle helmets, oddly enough. Doesn’t apply to motorways, from which pedestrians and cyclists are forbidden.