The Dutch cycle because strict liability made everybody drive safely and play nice

This page is a draft under construction. It is a widely editable wiki page and should not be assumed to be official Cycling Embassy policy.

Summary of the claim

“The Netherlands and Denmark have a law of ‘strict liability’ to protect vulnerable road users from more powerful road users. Under this law, in crashes involving vulnerable road users, unless it can be clearly proven that the vulnerable road user was at fault, the more powerful road user is found liable by default. This makes Dutch and Danish drivers more cautious around cyclists and pedestrians and is responsible for their safe roads.”

The weak version of this claim goes on to state that strict liability is a necessary component of the Dutch model and of growing cycling rates. The strong version of the claim states that strict liability alone is sufficient to create civilised streets and grow cycling rates.

Sub-claims

Example sources

Strict liability laws are widely supported by British cyclists and cycling campaigns, though the strength of the claims that are made for them varies. Through Chinese whispers, exaggerations and misunderstandings, there are several different ideas in circulation for what strict liability actually is.

“Strict liability: why it’s a life-saver”, at the I Pay Road Tax campaign, is typical of the strong claims made for the power of strict liability, and this Brighton newspaper article typical of the coverage of those claims. The CTC’s claims about strict liability are more muted. This blog post includes a typical example of the misunderstandings and incorrect definitions of strict liability that are common, and the claims that are associated with those definitions.

Summary of responses

  1. In this country, “strict liability” is often portrayed as a very strong legal tool. In fact, it is very weak. It does not refer to criminal liability, only to civil liability — i.e., primarily to matters of insurance in the event of injury. It is often mistakenly believed that “strict liability” would be relevant in the cases of cyclist deaths in which the motorists involved have received no or lenient punishment. In fact, the personal consequences of strict liability for the motorist are minimal to none.1
    1. Motorists are already liable in crashes where they can be shown to be at fault; if this is not a deterrent to dangerous driving, it is unlikely that strict liability will be.
    2. Most Dutch people are simply not aware of the “strict liability” issue for exactly this reason. It is something that is taken care of by insurance companies behind-the-scenes. It is certainly not a factor in their driving style.3
    3. The UK already has “strict liability” for one specific type of crash: two-car rear-end shunts, in which the driver of the rear car is presumed liable unless there is clear evidence of fault from the driver of the front car. This law does not mean that rear-end shunts no longer occur, or that drivers are more cautious because of it.2
    4. Many of the British campaigners who are rightly outraged at the lax investigation and punishment of dangerous driving in this country are therefore campaigning for the wrong solution, mistakenly believing that when they ask for “strict liability” they are asking for changes to the criminal law or to its application.4
  2. Strict liability only came into force in The Netherlands in 1992, years after the majority of the current cycle infrastructure was put into place and after the resurgence in cycling had already been firmly established.5 At the time the law was changed, it was a subject of mockery for Dutch comedians, playing up the absurdity of claims it would change behaviour.
  3. The Netherlands and Denmark are not the only jurisdictions to have strict liability. Many European countries have the same law, but do not have the same safe cycling conditions or high cycling rates that are said to result. Even Ontario, Canada, has a law equivalent to strict liability; it has had no obvious effect on the high road danger or low cycling rates in the province.6
  4. Proposals for strict liability in this country have received rabid responses from the right-wing tabloids.7 The fight for strict liability is likely to be a hard one and one that generates bad press for those who fight for it. None of that is worth it for such an insignificant technical change to the law. Campaigners should either aim higher, for more far reaching legal and law enforcement changes that are really worth the fight and the fightback, or should spend their time and effort on campaigns that are likely to have a greater effect on cyclist’s safety and cycling rates.

In more detail

Background: the problems that need to be solved

What strict liability is

Why strict liability is not the solution

Further reading

References

1 UK Cycle Rules: ‘Strict liability’ and legal protection for cyclists

4 e.g. this blog post, which makes the “criminal law” mistake: “Under Strict Liability if you hit a cyclist in a car it’s up to you to prove that you are innocent, as oppose to the injured cyclist (or their bereaved family) trying to prove that the bigger threat was guilty.”

6 Ontario Highway Traffic Act, 1990. Part XI, 193. (1): “When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”

7 e.g. Beware the rogue bicycles… Petronella Wyatt attacks the cult of cycling after her frail mother was knocked down in the Daily Mail.

Related claims

This is one of several claims for potential ways to increase the numbers of people cycling, and which may be suggested as routes to a mass cycling culture that do not require segregated cycling infrastructure:

  1. We should be concentrating on reducing speed and volume of motor traffic
    1. The Hierarchy Of Provision is a good idea in principle
  2. We should be concentrating on educating drivers and changing driving culture
    1. We should be educating drivers about passing distances
    2. The Dutch cycle because strict liability made everybody drive safely and play nice
    3. Recent uptake in recycling is an example that shows it is possible to persuade people to change their behaviour