Cycle Accident Liability in Europe, a comparison- Part One
In this article, Tim Beasley, Partner at Levenes Solicitors Birmingham Office reports on the recent PEOPIL conference in Amsterdam
On 23rd May 2014, I represented Levenes at the conference of the Pan European Organisation of Personal Injury Lawyers (PEOPIL) in Amsterdam. The organisers had packed a lot in to a single day, the highlight of which, for me, was a series of talks comparing cycle accident liability in England and Wales, the Netherlands and France. This has been in the news a lot recently with a concerted campaign to introduce a “presumed liability” law in the UK. It was good to hear from practising lawyers about the approach taken in their jurisdiction.
England and Wales
As in any Road Accident, the claimant has the burden of proving that another party was in breach of duty (driving below the standard of the reasonable but not perfect driver) resulting in causation of the accident and the injuries that result. There is no presumption in favour of the cyclist or pedestrian for that matter. The issue of contributory negligence in relation to any default on the part of the cyclist and the possibility of a reduction of the claim because a helmet was not worn, were covered and sadly, a familiar story.
The Dutch have a completely different approach under Article 185 of the “Wegen Verkers Wet” which is a form of strict liability against the motorist. Firstly, in any collision involving a cyclist under 14, which involves a motor vehicle, the cyclist always wins the claim on a 100% basis, and the insurers of the motor vehicle have to pay in full, unless there was “deliberate recklessness” The Dutch lawyers to whom I spoke were struggling to give an example of deliberate recklessness. It seems that it would have to be something like a deliberate suicide attempt. The burden of proof rests with the motorist not the cyclist.
If the rider is over 14, then the only escape from liability is if the motorist was totally blameless and the conduct of the cyclist was very unlikely. An example was given of a cyclist failing to look properly and riding across a road across the path of what we would call in England a “correctly proceeding motorist” whose English insurers would have blamed the cyclist as the “author of his own misfortune”. Anyone in England would have said that the cyclist was to blame. The Dutch take a different view. Sometimes people on bikes, and pedestrians for that matter, do something unexpected. But just because something is unexpected does not mean that it is unlikely. It is quite likely that people will do something unexpected. You have to love the way the Dutch have thought this through. It is a matter of social policy that motor vehicles are insured and motor insurance is there to cover that liability.
It is possible for the court to make a reduction in liability akin to contributory negligence. The worst it can get for a Claimant cyclist in the Netherlands is 50% liability. In reality if the cyclist is party at fault, there is an ”equitable correction” which is similar to the English law concept of contributory negligence but also takes in to account issues such as the seriousness of the injuries and the existence of insurance. In the examples given by the Dutch lawyers, it was clear that the reductions are not as great as you would expect in a similar case in England.
In a case decided in Utrecht in 2009, a truck driver failed to give priority to a cyclist but the cyclist had been riding on the pavement and was not visible for the driver. The court decided that the truck driver was 75% to blame, but after “equitable correction” due to the serious injuries of the cyclist and the fact that the truck was insured, the court awarded 90% compensation to the cyclist.
I have to say that many people in England will struggle to understand why the motorist is invariably liable. It is, in truth, social policy. Before we assume that this is a crazy European idea, it should be remembered that in English law we have some similar concepts. An example is in relation to vicarious liability where an employee sues his employer for the negligence of a workmate. A worker might be properly trained and equipped but do something dangerous at work which injures the Claimant and the innocent employer is vicariously liable for the negligence of his employee. This is because the employer has the means to take out insurance to cover the liability which an ordinary worker does not.
The message from the Netherlands is clear. Cyclists and pedestrians are vulnerable and should have the strong protection of the law.
In the next edition, I will discuss the approach taken in France.