A number of recent articles have revived the discussion about making motor vehicle owners liable for personal injury compensation arising out of accidents involving vulnerable road users such as bicyclists and pedestrians. Allistar Twigg, Sports Lawyer with Snedden Hall & Gallop, explains what this change could mean.
The new legislation
The legislation would make the car owner automatically liable for injuries suffered by a bike rider that the car collides with. It imposes strict liability on the car owner for the actions of the driver. Where such a collision takes place, it effectively reverses the onus of proof. A car owner may escape liability only if he can show that the cyclist acted in a way that was completely unforeseeable by the driver.
Such legislation is common throughout Europe, where bike riding is the norm.
The present system
All car owners in the ACT are currently required to have compulsory third party (CTP) personal injury insurance. In the event they cause injuries to another as a result of their negligence, they are compulsorily insured. In addition, should a car/bike collision occur with an unidentified or unregistered vehicle, an injured cyclist may sue the Nominal Defendant (funded by levies on ACT CTP insurers, the ACT and Commonwealth Governments.)
Under the present system, unless the owner’s insurer agrees to settle the matter early, many claims are propelled into litigation, with all the attendant costs and uncertainty. A strict liability and reverse onus system could decrease litigation almost to zero. There would be little incentive for insurers, owners or drivers to defend a cyclist’s claim or to pursue or perpetuate any court action.
Who is usually at fault?
Recent studies indicate that in the vast majority of car vs bike collisions, the motor vehicle is usually at fault — something like 80% of the time. So such a scheme could also have the benefit of focusing motorists’ minds on taking more care around cyclists.
As the most vulnerable of all wheeled road users, cyclists in Australia have traditionally received nowhere near the amount of consideration and empathy provided to cyclists in most other advanced countries. Many excuses are made, but the reality is that Australia’s motoring public has traditionally given short shrift to cyclists who dare to venture into the motorists’ domain. Things are changing, but not nearly quickly enough.
This scheme could save money
At worst, this scheme will be a cost shift towards those arguably most responsible for accidents involving cyclists. There could even be cost falls by virtue of a decrease in litigation, reduced accident treatment and associated costs to the state.
This lies with the ACT Assembly
The implementation of such a scheme was considered and recommended by the 2014 Inquiry into Vulnerable Road Users by the ACT Assembly’s Standing Committee on Planning, Environment and Territory and Municipal Services. The scheme was agreed to in principle by the ACT Government who said it would examine how such a scheme might work and assess its impact with a provisional date for completion of March 2015. Nothing has yet emanated from the Government regarding such a scheme.
The writer has recently contacted the Attorney-General’s office to determine the present status. At the time of writing, no response had been received.
Can Snedden Hall & Gallop assist you?
I will ensure that any update on this issue is passed on to Pedal Power members.
At Snedden Hall & Gallop, we understand about cycling and how important it is for many people in the Canberra region. We are able to assist Pedal Power members with information and advice on compensation for cycling accidents. You can contact us on (02) 6285 8000 or by email to firstname.lastname@example.org.
Allistar is a Lawyer in Snedden Hall & Gallop’s Sport Law team.