It can be a challenge to understand the legal maze that is liability in accidents. Our partner Maurice and Blackburn explains current liability rules in relation to civil claims.
A civil claim is where one citizen has suffered loss and considers another citizen should bear responsibility for the injuries or losses (incl property damage) because of substandard behaviour causing the incident. It is important to note that these examples “Strict Liability” and “Presumed Liability” are rules of evidence in civil claims only they do not affect criminal culpability.
Whether a driver or rider may be exposed to criminal sanction is a matter for the WA Police after considering the facts of a particular incident and the road traffic infractions for which they have responsibility in prosecuting
CIVIL LIABILITY (CURRENT SITUATION)
Currently, the injured party must collect evidence and prepare for a case and then prove all the elements of the case – that is, convince a Judge/Magistrate that a driver was at fault and caused an accident.
Where a rider has been injured or bike damaged – all the burden is on them including seeking advice, collecting evidence and commencing legal action.
STRICY AND PRESUMED LIABILITY
This system flips the evidential work to drivers. Whereas in our current system an injured bike rider would need to collect all the evidence and start the court case and prove the driver was at fault, this system flips it 180 degrees.
In this system once it is established there was a rider v. car collision the Court would then have to find that it was the drivers fault UNLESS the driver prepared a case and produced evidence to convince a Judge/Magistrate that it was not the driver’s fault. In other words the Judge must presume it is the driver’s fault unless convinced otherwise.
This is very uncommon in the Australia legal system and only exists in a couple of places. A strict liability system means nobody needs to prepare evidence nor prove fault. It is sufficient to prove that an event happened. For example in a strict liability system to protect riders all that would need to be established is that a person was on a bike and there was an impact with a car. The rider then receives compensation.
Effectively a rider would be compensated every time there occurred a collision with a car. This is an unlikely law reform unless it is State funded. Where the losses will be borne by insurers – they will lobby hard against it as will automobile associations.
Similar laws have been introduced in Canada and in many European countries, including the Netherlands, Germany, Denmark and France. Under these laws, sometimes also referred to as “reverse onus” laws, drivers must prove that a collision with a cyclist or a pedestrian was not their fault.
These laws affect civil cases only and do not remove the presumption of innocence. In criminal law, drivers in collisions with vulnerable road users remain innocent until proven guilty.