PRESUMED LIABILITY LEGISLATION
WHAT IT IS, HOW IT WORKS, & WHY WE NEED IT?
“In the present state of motor traffic, I am persuaded that any civilised system of law should require, as a matter of principle, that the person who uses this dangerous instrument on the roads – dealing death and destruction all round – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault. To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.”
– Lord Denning, 1982
S.C.A.’s campaign is focused on changing civil law in every state and territory in Australia to introduce a system of presumed liability so that cyclists and other vulnerable road users who are involved in road traffic accidents are compensated fairly and quickly. Presumed liability establishes a hierarchical structure to identify responsibility in the event of a road traffic accident, bringing certainty to the legal process. At present, Australia is out of step with so much of the world – particularly Europe – as a nation that does not operate some form of strict liability for vulnerable road users and yet it is not unprecedented in Australian Civil law.
Presumed liability in civil law is the proper approach for a mature, socially conscious nation as it addresses the unacceptable human cost of the current system.
Australia does not operate a strict liability regime for road users. Under presumed liability, injured vulnerable road users are properly and promptly cared for and not forced to fight for compensation.
Presumed liability builds a culture of mutual respect between road users (as seen by the Continental example).
Presumed liability ensures the most vulnerable road users are protected – cyclists from motorists and pedestrians from cyclists. Presumed liability will facilitate the development of a road hierarchy based on mutual respect between motorists, cyclists and pedestrians. Presumed liability will help promote the idea of Australia as a cycle-friendly nation and show that Australia can lead in cycle-safety.
Australia currently has very low rates of cycling.
A key reason holding back cycling as a viable alternative to the car is that too many people fear the prospect of cycling on the roads. Presumed liability will send out a clear message to drivers to keep a look out for cyclists when driving and bring about a culture change with regards to cycling. As we see in Europe, presumed liability is an integral part of a holistic approach to encouraging safer roads for cyclists. More cyclists on the road will bring with it consequent public health and environmental benefits.
Presumed liability is more cost effective than the current system – and the cheapest way to make a big difference to cycle safety.
Injured cyclists will receive just compensation more quickly than at present, avoiding the need for expensive litigation and reducing the burden on the courts. Evidence indicates that financial impact on insurers will be minimal and they may even see a reduction in costs due to the reduced time it would take to settle cases. Quick resolution to cases means cyclists are able to begin rehabilitative or similar treatment more quickly, freeing up the public purse from having to pay for their healthcare, social security and other similar benefits resulting from serious injury.
Strict liability regimes are not unprecedented.
It was the default position in workplace injuries and there are a large number of statutory strict liability health and safety provisions. Existing strict liability laws serve a useful educational purpose and promote safety consciousness in the same way strict liability for road users would.