Vulnerable Road User Legislation

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Vulnerable Road User Legislation

Postby high_tea » Sat Jan 28, 2012 3:57 pm

I think it's worthwhile to start a thread on this. There are two major questions: what sort of law do we want and how can we help agitate for it?

Here is my handwaving whirlwind summary of Vulnerable Road User Laws enacted elsewhere in the world.

Holland, probably Denmark, maybe others: a rebuttable presumption of fault when a less vulnerable road user collides with a more vulnerable road user. Discussed in a few places:

http://en.wikipedia.org/wiki/Cycling_in_the_Netherlands
http://ukcyclerules.com/2010/11/16/stri ... -cyclists/
http://hembrow.blogspot.com/2012/01/cam ... y-not.html

Portland, New York, Delaware (all in USA): injuring a vulnerable road user is a circumstance of aggravation to a charge of dangerous driving. Discussed at:

http://www.stc-law.com/vulnerable-user.html .

Ontario, Canada: Civilly, the onus is on the motorist to show they are not at fault. Here's the statute; see s193.
http://www.e-laws.gov.on.ca/html/statut ... .htm#BK288 .

These are the only laws that I'm aware of, not that I've looked all that hard. I'd be grateful if anyone could either discuss them in detail (wrt to effects on safety, for example), or mention any others.
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by BNA » Mon Jan 30, 2012 8:41 pm

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Re: Vulnerable Road User Legislation

Postby jules21 » Mon Jan 30, 2012 8:41 pm

high_tea wrote:http://ukcyclerules.com/2010/11/16/stri ... -cyclists/

interesting article. from it:
When cyclists talk about strict liability, they usually don’t mean strict liability in a technical sense. A rule making a motorist strictly liable for crashes with cyclists would mean that the motorist was always liable. So a cyclist who wanted to replace their bike could deliberately run it into a car, then claim compensation from the driver.

Instead, what people are usually suggesting is a presumption of liability – a rule that a motorist will be liable for a crash with a cyclist unless the motorist can show that the cyclist was at fault. The unless part is crucial, and is the difference between a presumption and strict liability. For example, RoadPeace have called for ‘strict liability’ in the past, but have since changed their language to reflect this.

IANAL but i deal a fair bit in the law and understand what the author here describes as strict liability to be absolute liability, while what he describes as presumption of liability to be strict liability. of course, i could be wrong..
It seems unlikely that a presumption of liability could help in the criminal law context.

There’s a good chance that a criminal law presumption – for example a presumption that a motorist who hit a cyclist was driving carelessly or dangerously, unless he can show otherwise – would be unlawful. It’s a difficult area, but there’s a good chance that it would breach the innocent until proven guilty guarantee in Article 6(2) of the European Convention on Human Rights. (e.g. R v Lambert [2002] 2 AC 545 at paragraphs 17, 34-41, 154)

again, i could be missing something, but i think he's confused here. a strict liability law could be for motorists to yield to cyclists, as is the case for cyclists to yield to peds on shared paths. there's no "innocent until proven guilty" dilemma with such a provision - it simply clarifies the obligation for motorists to yield to cyclists, as 100s of other rules clarify other circumstances in which road users must yield to other road uers.

i think what he's thinking is that the road rules would stay the same (i.e. proferring no special entitlement for cyclists relative to motorists), but that motorists would be presumed guilty in a collision between them. i'd agree that would be unfair, but it's not the only option. there is also a functioniing version of what i described above applying to cyclists on shared paths.
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Re: Vulnerable Road User Legislation

Postby high_tea » Mon Jan 30, 2012 9:49 pm

jules21 wrote:
high_tea wrote:<A class=vglnk title="Link added by VigLink" href="http://ukcyclerules.com/2010/11/16/stri" rel=nofollow target=_blank vglnk_1327921220305="2">http://ukcyclerules.com/2010/11/16/stri</A> ... -cyclists/

interesting article. from it:
When cyclists talk about strict liability, they usually don’t mean strict liability in a technical sense. A rule making a motorist strictly liable for crashes with cyclists would mean that the motorist was always liable. So a cyclist who wanted to replace their bike could deliberately run it into a car, then claim compensation from the driver.

Instead, what people are usually suggesting is a presumption of liability – a rule that a motorist will be liable for a crash with a cyclist unless the motorist can show that the cyclist was at fault. The unless part is crucial, and is the difference between a presumption and strict liability. For example, RoadPeace have called for ‘strict liability’ in the past, but have since changed their language to reflect this.

IANAL but i deal a fair bit in the law and understand what the author here describes as strict liability to be [url=<A class=vglnk title="Link added by VigLink" href="http://en.wikipedia.org/wiki/Absolute_liability]absolute" rel=nofollow target=_blank vglnk_1327921220305="3">http://en.wikipedia.org/wiki/Absolute_liability]absolute</A> liability[/url], while what he describes as presumption of liability to be strict liability. of course, i could be wrong..


This is why I used the term "vulnerable road user legislation"; "Strict Liability" means different things to different people. I was trying to start a discussion about two things:

1. What kinds of vulnerable road user laws are out there; and
2. How would they work in Australia?

"Strict Liability" is a term that leads straight to semantic debates about what it means (and I've been as guilty of that as anybody :oops: ). These debates don't seem to shed much light, so I was hoping to avoid them this time round and instead concentrate on the actual content of this law or that and how it might apply in Australia.

I linked to that article because it was one of the more detailed discussions of the Dutch law I'd seen. It's not ideal in that respect (and the author is pretty candid about the limits of their research IMO). There are some important points that still aren't clear like how the presumption of fault can be rebutted and whether it would apply to cyclist/pedestrian collisions (according to that oft-quoted YouTube video, you know the one, the answers are "with difficulty; showing fault on the cyclist's part isn't sufficient" and "yes", but I was hoping for something a bit more substantial that that...). Hopefully someone can dig up a bit more detail.

One thing that wikipedia article points is that strict civil liability, in the English/Australian sense, is a controversial concept. It's actually not good law in Australia since the decision in Burnie Port Authority. This doesn't make it impossible to have such a civil law, not at all, but it does mean that such a law is likely to meet with resistance.
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Re: Vulnerable Road User Legislation

Postby jules21 » Mon Jan 30, 2012 10:08 pm

high_tea wrote:"Strict Liability" is a term that leads straight to semantic debates about what it means (and I've been as guilty of that as anybody :oops: ). These debates don't seem to shed much light, so I was hoping to avoid them this time round and instead concentrate on the actual content of this law or that and how it might apply in Australia.

but i think it's integral to the discussion. i agree also on discussing the content. to summarise, my view on such a law is that it would simply reflect that for cyclists on shared paths, i.e.
- motorists must yield to cyclists, but
- negligence of cyclists would be available as a defence to motorists if charged under that offence (as it is for cyclists on shared paths - i believe it's called reasonable mistake in law).

the major outcome would be similar to that for cyclists on shared paths - a clear obligation to account for the vulnerability of cyclists in a collision with a driver's motor vehicle.
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Re: Vulnerable Road User Legislation

Postby high_tea » Mon Jan 30, 2012 10:50 pm

jules21 wrote:
high_tea wrote:"Strict Liability" is a term that leads straight to semantic debates about what it means (and I've been as guilty of that as anybody :oops: ). These debates don't seem to shed much light, so I was hoping to avoid them this time round and instead concentrate on the actual content of this law or that and how it might apply in Australia.

but i think it's integral to the discussion. i agree also on discussing the content. to summarise, my view on such a law is that it would simply reflect that for cyclists on shared paths, i.e.
- motorists must yield to cyclists, but
- negligence of cyclists would be available as a defence to motorists if charged under that offence (as it is for cyclists on shared paths - i believe it's called reasonable mistake in law).

the major outcome would be similar to that for cyclists on shared paths - a clear obligation to account for the vulnerability of cyclists in a collision with a driver's motor vehicle.


Strict liability is one way of protecting vulnerable road users. It may be even be a good one. By no means is it the only way; I think the existing laws demonstrate that.

To concentrate on the current cyclist/pedestrian law:

- The Road Rules (most of which create offences without fault elements - ie offences of strict liability) have a fairly relaxed penalty regime. Loss of license is about the heaviest penalty available. That's a pretty small stick for a collision, one that could involve serious injury.
- Enforcement of the Road Rules is a big problem and this one is no different.
- Negligence of the collidee (is that even a word? :D ) isn't a defence as such. Accident is a defence, so is honest and reasonable mistake of fact. Those are the ones that come to mind.
- It presupposes that cyclists who don't want to yield to pedestrians can go elsewhere (the road or dedicated cyclepaths as the case may be). At least, that's usually the case in practice.
- It's limited to paths and as such isn't about cyclist/pedestrian interactions in general.
- It doesn't criminalise colliding with a pedestrian, it asserts the primacy of pedestrians on shared paths. To do this, it criminalises much less harmful behaviour, under limited circumstances. I don't really have a problem with that, but it's a completely separate concern. A law that criminalises such collisions should have substantially more serious penalties and shouldn't have a geographical limitation.

I don't have anything against a law criminalising collisions with vulnerable road users. I just don't think the Road Rules are the right vehicle for those reasons. I'd also like to point out that dangerous driving (in Queensland anyway) isn't even limited to roads; it can apply to driving anywhere. An anti-colliding-with-vulnerable-road-user law should, I'd suggest, be equally broad in scope.
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Re: Vulnerable Road User Legislation

Postby Xplora » Sun Feb 05, 2012 1:38 pm

It's a worthwhile consideration and proposal, and realistically it is probably the jewel in the crown to make Aussie roads heavily "cyclical". :lol: I think it would be well worth investigating the interaction with peds with cars as well as bicycles, because there are situations where the ped must not create an obstruction, but how do you PROVE all this? That's ultimately the killer blow with all laws. Insider trading and corruption is illegal too, but they happen a LOT and it's hard to prosecute.
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Re: Vulnerable Road User Legislation

Postby high_tea » Sun Feb 05, 2012 8:33 pm

Xplora wrote:It's a worthwhile consideration and proposal, and realistically it is probably the jewel in the crown to make Aussie roads heavily "cyclical". :lol: I think it would be well worth investigating the interaction with peds with cars as well as bicycles, because there are situations where the ped must not create an obstruction, but how do you PROVE all this? That's ultimately the killer blow with all laws. Insider trading and corruption is illegal too, but they happen a LOT and it's hard to prosecute.


If you're referring to jules21's proposal, there's an important difference between it and (say) insider trading: it would have no fault element. At least, the Road Rules almost invariably don't, so I assume that's the case, at the risk of putting words into their mouth. Fault elements can be difficult to prove, so not having one should make an offence easier to make out. One issue with making it part of the Road Rules is the lack of "teeth"; for not-particularly-interesting reasons adding an offence to the Australian Road Rules that has jail time as a penalty is harder than it looks.
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Re: Vulnerable Road User Legislation

Postby jules21 » Sun Feb 05, 2012 8:46 pm

high_tea wrote:for not-particularly-interesting reasons adding an offence to the Australian Road Rules that has jail time as a penalty is harder than it looks.

agreed. but you could do both - make a strict liability offence in the rules to yield to vulnerable road users, and put a multiplier for existing provisions in primary legislation (e.g. careless, dangerous driving) with double the max. penalty when the victim is a vulnerable road user. that would cover both circumstances - i.e. major and minor incidents.
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Re: Vulnerable Road User Legislation

Postby high_tea » Sun Feb 05, 2012 9:58 pm

jules21 wrote:
high_tea wrote:for not-particularly-interesting reasons adding an offence to the Australian Road Rules that has jail time as a penalty is harder than it looks.

agreed. but you could do both - make a strict liability offence in the rules to yield to vulnerable road users, and put a multiplier for existing provisions in primary legislation (e.g. careless, dangerous driving) with double the max. penalty when the victim is a vulnerable road user. that would cover both circumstances - i.e. major and minor incidents.


Sure, but only the Road Rules offence would have no fault element in that case. Whether this is bug or feature I honestly don't know. I'm leaning towards "bug", but I can definitely see the other side of the coin.

EDIT: got "bug" and "feature" the wrong way 'round. :oops: :oops:
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