Written evidence from CTC
(CMI 33)
INTRODUCTION
1. CTC, the national cyclists' organisation,
was founded in 1878. CTC has 70,000 members and supporters, provides
a range of information and legal services to cyclists, organises
cycling events, and represents the interests of cyclists and cycling
on issues of public policy. CTC also provides 3rd party insurance
to all its members.
2. We welcome the opportunity to respond to this
extended inquiry and strongly support proposals that the Committee
addresses the issue of the liability of motor vehicle operators
in crashes involving vulnerable road users.
REASONS AND
CONSEQUENCES OF
RECENT INCREASES
IN THE
COST OF
MOTOR INSURANCE
3. One obvious explanation for recent increases
in the cost of motor insurance is that more claims are now being
made, especially for incidents that are minor and unreported to
police.
4. The ABI suggest that 432,000 claims for whiplash
alone were made in 2006-07, significantly up on previous years.
Recent Reported Road Casualty Reports record huge self-reported
injury rates from road crashes that are not recorded by police.i
5. It may be that a combination of greater willingness
to claim and driving behaviour deteriorating may be contributing
to the increase in collisions. Alternatively the increase in vehicle
safety technology may be leading to risk compensation on the part
of drivers, meaning more shunts and bumps, leading to insurance
claims without injury.
IMPACT ON
YOUNG PEOPLE
OF THE
HIGH COSTS
OF MOTOR
INSURANCE
6. CTC notes that levels of automobile use amongst
young people, particularly men, has been slightly declining in
recent years. The higher motor insurance may have contributed
to this reduction.
7. The fact that fewer young people are choosing
to drive should not be seen to be negative. Young people are more
likely to be killed on the roads than in any other means and the
risk of being killed per trip for a 17-20 year old driver is nine
times greater than for someone their parents' age (see figure
1 below). Although cycling is often perceived as being a riskier
activity than driving, the risks young people are exposed to are
lower for cycle trips than when they are driving.
8. While reducing the ability of young people
to access motor vehicle by making insurance more costly may not
be equitable, the level of involvement in injury and death of
young drivers suggests that any means of reducing their car use
must be welcomed. Young people may well shift to healthier modes
of travel, posing less risk to themselves and others.
Figure 1
RISK OF DEATH PER MILLION TRIPS: DRIVING
AND CYCLING
PUBLIC POLICY
IMPLICATIONS OF
THE RISE
IN THE
COST OF
MOTOR INSURANCE
AND WHAT
STEPS THE
GOVERNMENT MIGHT
TAKE IN
RESPONSE TO
THEM
9. As above, CTC suggests that in part the rise
in the cost of motor insurance may deter some people from driving.
This is to be welcomed.
10. We believe that insurers should offer pay
per mile insurance, a concept that until now has only been trialled
or implemented on a very limited basis. This would allow access
to motor vehicle insurance to be lower for those who choose to
use their cars less.
CHANGES TO
MOTOR INSURANCE
TO GIVE
GREATER PROTECTION
TO VULNERABLE
ROAD USERS
11. While most drivers are generally considerate
towards cyclists and pedestrians, the fact remains that non-motorised
users (NMUs) are more at risk of being injured on the roads, whilst
posing far less threat to others.
12. This imbalance could be corrected by introducing
the legal presumption made by most west European countries that
injured cyclists and pedestrians are entitled to compensation
from drivers who hit them, unless the victim was obviously at
fault.
13. If a cyclist or pedestrian suffers personal
injury or damage in a collision with a motor vehicle, they should
be entitled to full compensation from the driver's insurance unless
the driver (or in practice their lawyers/insurers) can show that
the injury was entirely caused by the cyclist or pedestrian behaving
in a way that fell well below the standard that could be expected
of them, taking account of their age, abilities and the circumstances
of the collision.
14. The cyclist or pedestrian should also be
entitled to proportionate compensation even if they were partly
at fault.
15. Particularly vulnerable people (eg children,
the elderly, people with learning difficulties or physical disabilities),
should receive compensation from the driver's insurance automatically,
unless they evidently wanted to harm themselves.
16. We do not believe that this system would
inevitably lead to an increase in the costs of insurance.
What's wrong with the current system?
17. Cyclists and pedestrians are:
- ¾ most
at risk on the road network;
- ¾ least
likely to be at fault in a collision with a motor vehicle; and
- ¾ pose
far less danger to others.
Yet it is usually much harder for them to claim compensation
for injuries they sustain. Reasons for this include:
18. The burden of proof lying with the injured
cyclist/pedestrian: as explained below, cyclists are more likely
to be the injured party in collisions with motor vehicles, but
less likely to be at fault. In order to gain the appropriate amount
of compensation, they have to prove that the driver was negligent,
has committed a tort (a breach of duty leading to liability for
damages) and/or a criminal offence and, as such, was wholly or
partly at fault. This is a costly, complex and time-consuming
process;
19. Injured cyclists/pedestrians are less likely
to be good witnesses in court: given their greater likelihood
of injury, cyclists and pedestrians are far less likely to recall
what happened with the clarity needed of a "good witness"
in court. This regularly leads to grave injustice, far more serious
than anything that could possibly result from reversing the burden
of proof.ii
20. Injured cyclists/pedestrians don't have as
much financial support: motoring organisations and insurance companies
have, in effect, limitless funds for employing lawyers etc., whereas
most cyclists (especially those who are not members of a cycling
organisation like CTC) do not. This puts many injured cyclists
at a significant disadvantage;
21. Cases take extended periods to resolve: typically
it takes a long time to resolve personal injury cases - even with
a solicitor, they can span four or five years. Compensation, for
example, can depend on the severity of injury, which may take
a while to confirm and require an interim payment and then further
payment when diagnosis is more certain—naturally, insurance
companies will always pay as little as they can at any time.
22. The need to correct for imbalances in power
or vulnerability is already recognised elsewhere in law, and elsewhere
in Europe—indeed, the system of civil compensation for personal
injuries to NMUs in England is one of the least favourable.iii
23. In many European countries, the bigger vehicle
is presumed responsible or motor vehicles are held strictly liable
for injuries to NMUs. In France, Belgium and the Netherlands,
liability for personal injury damages to NMUs rests with the driver,
unless they can show that the NMU acted in a way that was clearly
illegal and/or seriously negligent.
24. The principle that a defendant is 'innocent
until proven guilty' is not completely enshrined in matters of
liability relating to road traffic incidents. Drivers are generally
held to be liable if they run into the back of another vehicle,
even if the driver in front braked sharply or without warning.
This is because drivers are expected to drive at a safe distance
- just as they should be expected to exercise a high degree of
care around NMUs, allowing for unexpected or erratic movement
by them. In the case of Russell v. Smith (2003) it was
established that even if children were deemed to be entirely 'at
fault', compensation must still be awarded.
25. Common law on tort liability allows for the
theory of res ipsa loquitur ("the thing speaks for
itself"). Basically, this means that if it is circumstantially
obvious that a claimant did nothing wrong, and that the incident
must have resulted from negligence, it follows that the party
who caused the harm must have acted negligently.
26. Provisions for imbalances in power or vulnerability
are made in areas of the law such as consumer protection, employment
contracts, public and employee health and safety (eg legislation
places primary responsibility for employees' safety on employers).
27. A presumed entitlement to compensation would
have the following benefits:
- ¾ The
law would reflect the fact that NMUs are far more at risk of injury
than motor vehicle occupants (see above).
- ¾ It
would reinforce the message that drivers should exercise a high
degree of care towards NMUs, promoting more cautious driving and
leading to fewer crashes.
- ¾ An
injured NMU would find it much easier to obtain compensation following
a collision with a motor vehicle.
- ¾ Reversing
the burden of proof transfers any injustice arising from failures
in evidence from the innocent victim to the innocent driver. The
latter only risks losing their no claims bonus, whereas under
the current system the victim risks being unable to claim compensation
even if maimed for life, simply because their injuries have left
them unable to provide evidence that the driver was at fault.
28. It would (should) not mean:
- ¾ That
NMUs are given "carte blanche" to act irresponsibly
- CTC would not support it if it did.
- ¾ Any
change to the criminal law principle that the defendant is innocent
until proven guilty, any more that it would mean that drivers
would be automatically criminalised if they collide with a NMU.
Our proposal would only affect civil liability compensation
cases.iv
- ¾ That
the law would be introducing a divisive or unfair arrangement:
most drivers walk and cycle too. It would simply reflect the fact
that when people choose to walk or cycle, they are more vulnerable
than drivers who put them most at risk.
- ¾ A
significant increase in insurance premiums or motoring costs.
It is more than likely that a change in compensation rules would
lead to safer driving, hence fewer collisions and, in turn, reduced
payouts. Also, the proposal would reduce the necessity for much
of the costly litigation that currently takes place - and for
which drivers ultimately pay.
29. We ask the Committee to take note of these
points, even if they are not directly relevant to the exact terms
of the current inquiry.
CTC, the national cyclists' organisation
December 2010
REFERENCES
i ABI, Tackling
Whiplash: Prevention, Care, Compensation, 2008.
ii To give an example:
the injustice suffered by a child who cannot claim damages despite
being maimed for life by a dangerous driver, because s/he cannot
provide adequage witness evidence that the drive was at fault,
is far greater than the injustice that an entirely blameless driver
might suffer in the reverse situation—this would usually
be no more than thej loss of a no claims bonus.
iii Groutel, Hubert.
The Compensation of "Vulnerable" Road-accident Victims.
Academy of European Law, Trier, 2001.
iv In 1999, the Environmental
Law Foundation published Optuions for Civilising Road Traffic,
which sets out the arguments for and against changing the operation
of road traffic law both iln terms of criminal and civil liability,
for the better protection of NMUs and promotion of the message
that drivers bear primary responsibility for road safety.
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