Monday, 1 February 2016

Strict Liability

Many people are calling for laws that create automatic liability against car drivers if they hit a cyclist (or pedestrian). There are many misconceptions about this, so let's define what strict liability is, is not, how I think it matters and how it would influence people's decision to cycle (or walk).

Strict liability as practiced in the Netherlands is an insurance law (civil, not criminal) that presumes that the insurer driver of a motor vehicle (or if the insurance is for some reason invalid or was never sought, the driver) involved in a collision with a non motorized road user (which oddly enough includes mopeds) is required to pay for the expenses of the non motorized user in relation to medical bills, lost or damaged property, like paying for a bicycle of similar value to the one damaged, or for repairs to it, and other compensations needed, unless the road user was under 14, in which case the driver's insurer is always required to pay except in the case of intent or recklessness on the part of the child, in which case the parent's pay, or unless the driver's insurer can prove that the cyclist was at fault and either intending to cause a crash or was being reckless. The driver's insurer will also pay at least 50% of the cost if the cyclist was at fault but wasn't reckless or trying to cause a crash, and that minimum can be increased by a court and judge to require the driver's insurer to pay all of the damage, and the exact amount varies depending on the actual case, and the burden of proof of any cyclist's (or pedestrian or moped rider) recklessness, intent or failure to be obeying the rules of the road is on the driver's insurer.

The 50% minimum even if the cyclist wasn't obeying the rules is there because the driver willingly (there is really no need to drive, you have many good alternatives that work year round everywhere in the Netherlands, so driving is always effectively a choice between good, fast and safe options) used a car that is known to be very dangerous, and that it is much more likely that the non motorized road user will suffer much more damage than a driver will or the motor vehicle will. And also, non motorized users (except mopeds) are not required to have insurance.

This means for example that if a cyclist runs a red light and a car driver accidentally hits the cyclist, then because neither of them intended to cause a crash (intent means intending to cause a crash, not the intent to break a rule), cyclists running red lights is fairly common, and drivers must be much more aware of this than in most countries, so it was not really circumstances beyond the control of the driver, but there was a mistake on the part of the cyclist and it's assuming that the driver can prove it, so let's make it simple and say both parties get 50% of the blame. Say the cyclist had a new bike worth 500 dollars (they use euros obviously, but I'm just using dollars because I have the keyboard and the fingers to press d o l l a r s instead of e u r o s) and has a medical bill for say 2000 dollars. I know the Dutch have a universal healthcare system but for now let's pretend they don't and say that the driver's insurance company is responsive for 1000 dollars and the cyclist is responsible for paying the other 1000 dollars.

Now let's say that the car driver bumps into a cyclist from behind with the cyclist not doing anything wrong. The cyclist did not do anything wrong, the car driver was fully responsible for the crash, and let's say the cyclist will need antibiotic medicine for say 2 years. I don't know why, the cyclist just does. There is no doubt here about who is going to pay up. The car driver's insurance company. Say it will cost 50 dollars per year, and so the insurance company will be paying the 100 dollars to provide the medicine.

You can go over more complex examples, and sure enough, Dutch courts do, but let's go over what this doesn't mean.

The car driver is not the one responsible for paying anything but a traffic fine if they get one unless his/her insurance is invalid, they don't have insurance or likewise. And this does not mean they are always responsible. That doesn't make sense. People are people and people shouldn't be blamed when they are not responsible. Especially in cases of intent or recklessness. This is also not a criminal law. A car driver might find himself facing charges for serious traffic violations, or they might get a fine, but that depends if they and they alone were behaving lawfully or not. Same with the cyclist or pedestrian, they might face charges or fines depending on whether they were violating the law or not, but no part of this is makes it so that one directly compensates the other. Also this only affects motor vehicles being driven (not affecting parked cars) and pedestrians and bicycles being ridden and their riders. And whatever else is a non motorized road user. Not affecting cows or other animals, goods inside a vehicle, etc.

This can't really influence behavior. Almost never when driving are you thinking "Man, I've got to stay out of the way of that cyclist because if I hit him/her I'll have to compensate them for the damages and medical bill!". That's absurd. It would be closer to how you might protect your baby because you want to protect other people. Never do you think when handling a baby do you think that you have to protect it because if you don't you have to financially compensate it. That would be silly. Not a perfect analogy, but close enough to me.

And why if you were walking or cycling think that if you were financially compensated in the case of a crash that you would want to ride a bike or walk? Wouldn't you be more concerned about any sort of injuries than money? Cars have exactly the same capability to cause force because they are still a mass going X number of kilometres per second (it's technically acceleration, but if the car is going at the same rate, it's effectively speed), usually somewhere between 30 and 70 on ordinary at grade streets in urban areas, which is still a lot of force for a 1 tonne or more (some trucks go over 15 tonnes, and I've heard of vehicles well over 50 tonnes. Note that a tonne is 1000 kilograms) vehicle. You depend on you not being where the motor traffic is, either because of the low speeds and volumes of the traffic on access roads or having a separate lane or per preferably, cycle paths of suitable quality. Unsurprisingly, most of the cyclists in Edmonton and elsewhere are on these paths or low volume access roads. Harry Ainlay has a path that leads from it to Southgate and to Century Park, both with LRT stations and large transit centres and Southgate being a major destination in and of itself, so it's bike parking lot is much more full than most other places are. It wouldn't be any better after strict liability.

I still do support such a law though. It can be really useful for someone who is the victim of a crash and who doesn't have other means to pay for the medical bills and if needed, a replacement bicycle or replacement moped (given that they are of similar size and mass and speed to bicycles, much closer than cars would be, I'd give them the benefit of including them with cyclists and pedestrians) or mobility scooter or whatever. Especially given that as long as you have insurance, driver's don't suffer, given that you don't want to get injured in the first place, it wouldn't make you more reckless as a pedestrian or cyclist, and it is only a fairly small number of crashes. A small increase on insurance premiums, but not that much. And shifting the burden of proof helps the injured who might after all be in a coma and thus be incapable of telling a judge what happened. It's just an extra safety net, not really going to be that big of a deal.

On a somewhat related thread, it also would be worth deliberately using a car in a dangerous way worth as much penalty as using a machine gun. It's something you can intimidate with, and just by pressing down on the pedal and aiming the steering wheel at something you are likely to damage it within just a few seconds with no real warning. If you try to cause damage it should be like battery assault with a gun, if you try to kill someone it should be like attempted murder. If you are being reckless, it should be like being reckless with a gun. Guns and cars are actually quite similar. Both need a license to operate, you sign agreements to really careful with them and to use them for the right reasons, you need to be quite careful when acquiring them, if you get a pistol you need to register the thing, same with a car, most of the time you need to be quite specific in terms of where you use them. You can make a lot of connections between the two, the big difference being that cars are considered quite safe things, especially quite safe things to be in, while walking around with a gun without an obvious reason, like being a police officer or hunting in an approved area, is very suspicious. In the US it's less of a concern to the average person, especially in states with open carry laws, but it's still considered a dangerous object. Yet about 1000 people, give or take about 500, die as a result of guns and over 3300 die by being in a car crash each year in Canada. If we live in a place where cars are a bigger threat than guns are, then why are guns considered something so dangerous (they are, and they should be heavily regulated, but so should cars) yet cars are considered benign objects that everyone out of college should own and have near you at all times if you are living the good life?

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