ETRA apologises for "incorrect" motorist liability press release - BikeBiz

ETRA apologises for "incorrect" motorist liability press release

Media storm averted? On 14th February, the Belgium-based European Twowheel Retailers' Association issued a press release which claimed "motorised road users will be automatically liable in the event of an accident with a cyclist." This was in reference to an EU position on the famous 5th Motor Insurance Directive. It's famous because the British mass media went wild in 2002 when it was thought motorist's insurance premiums would be hiked to "protect" cyclists. ETRA has now withdrawn the press release following lobbying from BikeBiz.com which did not run the press release. Other cycle news sites around the world did.
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Get too deep into the background of the 5th Motor Insurance Directive and your eyes will glaze over. However, it's important legislation.

Emotive, too.

Concerning the Directive this, in 2002, is what one Daily Mirror columnist wrote: "Bicycles are for children...[they are] like masturbation - something you should grow out of. There is something seriously sick and stunted about grown men who want to ride a bike...If we truly cared about safety on our roads, then we would make a bonfire of all those stupid hats, all that hideous Lycra and every bicycle in the land."

Given the media storm over the issue in 2002 (see BikeBiz.com passim), any story on cycling, motor insurance and the EU needs to be handled carefully. In the wrong hands, it can be explosive...

It's therefore good to see ETRA has withdrawn its 14th February press release and issued a new one today clarifying the actual position. Both press releases are given below.

When the release arrived at BikeBiz.com we were in no rush to publish it. Instead, given the topic's sensitivity, the release was put out for peer review, with the expert comments later forwarded to ETRA.

Roger Geffen, campaigns manager at CTC, and Frazer Goodwin, policy officer of the European Transport Safety Council, came to very different conclusions to ETRA.

Geffen said the ETRA release was "a very widespread misunderstanding about the true extent of the EU Directive."

But he sympathises with ETRA:

"It is no surprise that this has happened. The text of the Directive as originally published in 2002 was very unclear, and gave rise to a huge amount of ill-informed opposition. But it also gave rise to ill-informed support from cycle campaigners who believed the Directive would give us far more than it actually does.

"I joined the staff at CTC shortly after this issue blew up in the UK media with a torrent of 'two-wheeled terrorist' stories in the tabloid media in the summer silly season of 2002. I read the Directive to find out what it actually said, and came to very different conclusions from what [campaigners] had been saying up till then. I then found that the London Cycling Campaign’s legal expert, Ralph Smyth, had independently come to exactly the same conclusion. So I contacted Mike Power, the official at the UK Department for Transport who was dealing with the issue at the time (he has since retired). He had exactly the same understanding of the Directive as my own. The Directive will affect national law on drivers’ insurance schemes, but will not affect national laws on driver liability.

"However, this wasn’t at all clear from the way the Directive was worded, and because of the misunderstandings, it seemed set to fail altogether."

Here are ETRA's press releases, followed by three BikeBiz.com news stories from 2002. The first news about the 5th Motoring Directive was carried in the UK on BikeBiz.com. This coverage was later picked up by the Independent on Sunday after which the mass media - newspapers and TV - had a field day kicking cyclists.

ETRA Press release, 2 March 2005: Correction concerning the interpretation of Article 4(2) of the Common Position on the 5th Motor Insurance Directive

European cyclists only assured of damages if they are not at fault

On 14 February, ETRA has issued a press release on Article 4(2), concerning among others cyclists, in the future 5th Motor Insurance Directive. That article reads as follows: “The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover personal injuries and damage to property suffered by pedestrians, cyclists and other non-motorised users of the road who, as a consequence of an accident in which a motor vehicle is involved, are entitled to compensation in accordance with national law. This Article shall be without prejudice either to civil liability or to the amount of the damages.”

This was interpreted as a confirmation of the fact that the insurance of the motor vehicle had to cover injuries and damages suffered by non-motorised road users in any case. That interpretation resulted from reading “who (…) are entitled” as “they are entitled”, rather than “provided they are entitled”.

When the provision was reintroduced by the Council in April 2004, ETRA asked the Commission for further clarification of the article. We wrote: “We read it as follows. It entitles those member states, that already have a provision granting damages to pedestrians and cyclists in the event of an accident with a motor vehicle irrespective whether they are at fault, to continue to apply the provision. At the same time, the proposal does not oblige those member states who do not have such a provision, to implement the provision in their national legislation.“

The Commission replied: “We agree with you that those Member States, that already have a provision granting damages to pedestrians and cyclists in the event of an accident with a motor vehicle irrespective whether they are at fault, will be able to continue to apply the current provision of their national law, without introducing new legislation. However, other Member States will probably have to adopt new legislation to implement the new obligation introduced by such provision (…).” This led us to believe that our interpretation was correct, i.e. all member states would have to implement a provision to assure non-motorised road users of damages irrespective of their fault.

Following the distribution of the press release of 14 February, other parties with an interest in this matter informed us that they had an alternative view on how to read the provision. They were under the impression that the article was rather aimed at settling the problem of differing national provisions. For instance, in Belgium the insurance of a car driver must assure vulnerable road users of damages irrespective of their fault. In the UK, such a provision does not apply. What happens in the event of an accident in Belgium between an English car driver and a Belgian cyclist? In this case, the principle of “lex loci”, i.e. Belgian law, applies. Therefore, the insurance of the English car driver will have to compensate the cyclist. The provision in the future European legislation will not change anything about that.

Following all this confusion, ETRA asked the European Commission again for further clarification and has now received a definite answer as to how the text should be interpreted. The provision does not include the obligation for the motor vehicle insurance to cover personal injuries and property damage of non-motorised road users irrespective whether they are at fault. Motor vehicle insurances will have to cover injuries and damage suffered by non-motorised users only if the motorised road users are at fault.

Although the provision is not as far-reaching as originally hoped, the Commission is quite positive about this first step. The new Directive does acknowledge pedestrians and cyclists as the "usually weakest part in an accident" (recital 16). This acknowledgment makes way for further lobbying at national level. The more member states adopt the provision unilaterally, the bigger a chance the provision will stand at European level should it be brought up again.

The opposition both in Council and Parliament against a provision that would cover the damages of non-motorized users irrespective of their fault, was mainly based on the argument that the European institutions are not competent in the field of civil law. However, as ETRA argued from the beginning, that problem would have been non-existent, had the European authorities accepted and introduced the concept of "objective liability", which is liability irrespective of an error. The aim of objective liability is assuring victims of compensation. The provision in Belgium was introduced in the insurance law, while civil liability law remained unchanged. On the basis of the same principle, in Belgium for instance every owner of a place accessible to the public has the legal obligation to take out insurance against fire and explosion.

In Belgium, the provision was introduced in 1995. It resulted in a 5% increase of the premiums. As for the accidents involving cyclists and pedestrians: 4,027 were injured and killed in 1990, in 2001 that number had decreased with 53.8% to 1861. Of course, this decrease was not only due to the provision but to a combination of measures aimed at making traffic safer. Nevertheless, the provision clearly resulted in car drivers adopting a much more considerate attitude towards vulnerable road users.

ETRA apologizes for the incorrect information originally sent out on this issue.


ETRA Press release, 14 February 2005: Better protection for European cyclists on the way: New legislation a victory for the whole bicycle and cycling community

In some of the European member states, vulnerable road users such as cyclists have special protection. In the event of an accident with a motorised user, the insurance of the motor vehicle must compensate the damage incurred by the vulnerable road user. The European authorities are now very close to an agreement as a result of which all member states will have to apply this provision.

In January, the European Parliament has adopted a compromise package on insurance against civil liability in respect of the use of motor vehicles. With that, the European Parliament has accepted the provision as a result of which motorised road users will be automatically liable in the event of an accident with a cyclist.

The European Council should now adopt the amended Common Position not later than 12 April 2005, if not the Common Position will be referred to the Conciliation Committee. If the Council adopts the amended Common Position, all member states that do not have a provision guaranteeing cyclists of compensation in the event of an accident with a motor vehicle, will have to introduce such a provision in their national legislation.

ETRA has, in close cooperation with its national members, actively lobbied for this provision. The European trade association for twowheel retailers argued that non-motorized road users deserve special consideration, since they are clearly more exposed to road danger than motorized users. This is in spite of the fact that a lot more danger and risks result from the use of motor vehicles than from non-motorized road users. Motor vehicles cause most accidents involving non-motorized road users. Moreover, in the event of such an accident, non-motorized road users usually suffer more. According to the European Transport Safety Council, in 2001/2002 the average number of EU deaths per 100 million person km was as follows: all road users: 0.95, car drivers: 0.7, pedestrians: 6.4 and cyclists: 5.4.

In ETRA’s view, assuring non-motorized road users of damages is making a clear signal to motorized users. Many accidents happen because of the dominant attitude of motorized users, as a result of which they seriously lack attention for non-motorized users. This attitude needs to change in order to get priorities right. According to ETRA, in those countries where it is already applicable, the provision has neither resulted in excessive claims nor in enormous price increases of motor insurance or in huge losses for the insurers. At the same time, the regulation proves to considerably improve the relation between cyclists and motorists which, in turn, contributes to road safety. One of the major deterrents for people to cycle is exactly road safety. Since the provision results in more safety, that will also encourage people to swap the car for environmentally friendly means of transport such as the bicycle. Therefore, the new legislation is not only a victory for ETRA and its members but for the whole bicycle and cycling community in the European Union.

Remarkably enough, it was the European Parliament who found the extra protection for vulnerable road users hard to take. In their first reading, the MEP’s even decided to delete the provision from the new Directive. It was reintroduced by the Council in the following wording: “The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover personal injuries suffered by pedestrians, cyclists and other non-motorised users of the road, as a consequence of an accident in which a motor vehicle is involved, are entitled to compensation in accordance with national civil law. This Article shall be without prejudice either to civil liability or to the amount of damages.” That Article was approved by European Parliament last January. Following the current proposal, the member states will have to implement the Directive in their national legislation within two years of the publication.


Today, the provision is already effective in Belgium, Denmark, Finland, Holland and Sweden. Outside the EU, Swiss and South African cyclists also enjoy the special protection.

BIKEBIZ.COM ARTICLES

Wednesday 12th June 2002: The strong must bend to the weak

In the Netherlands, any car driver involved in a collision with a cyclist (or a pedestrian) is automatically deemed to be at fault. Consequently, motorists tend to drive more gingerly when mixing it with soft and squishy fellow road users. Now - yippee - there's an EU proposal to extend the law Eurowide

The European Commission has proposed that car drivers shall always be liable in 'accidents' with cyclists or pedestrians.

The unprotected road user is always more badly injured than the car driver in his/her motorised exoskeleton.

In the UK, it often seems motorists feel cyclists should not be on 'their' roads, and many drive with apparent disregard to the possible injuries cyclists would incur in any collisions, even slight ones.

Even when cyclists are killed by motorists driving 'without due care and attention', the erring motorists are generally let off lightly, with paltry fines and short driving bans.

With cyclists 'rights' being protected by law, conditions for UK cyclists could very well improve overnight and this would lead to an increase in cycle usage, especially cycle commuting.

This is an important development and one that is likely to be fought by the motoring lobby. BikeBiz will closely monitor the progress of the .

And this possible Netherlands-style rule change is in addition to the toughening of penalties for UK drivers who kill cyclists or pedestrians. New guidelines for magistrates have been drafted by Lord Falconer, the new minister for state for criminal justice, sentencing and law reform. At the recent RoadPeace conference, Lord Falconer said victims of road traffic 'accidents', and their families, would be treated more fairly and the consequences of poor driving would now be taken into consideration in court cases.

The government is considering adding a new offence to the statute book, that of 'negligent driving'. This would result in more successful prosecutions because the current definition of 'dangerous driving' is hard to prove, and the lesser charge of 'careless driving' doesn't carry very stiff penalties.

Monday 1st July 2002: The strong must bend to the weak (Part II)

Two weeks ago we reported on the news that there may be a move afoot to bring the whole of Europe in line with the Netherlands in respect of motorists being at fault in any collision with cyclists or pedestrians. We've now dug up the relevant EC documentation...

Cyclists involved in a road accidents will automatically be deemed to be the wronged party, under planned road safety changes to European Union insurance legislation, writes Euro-legislation export Mark Rowe.

A directive from Brussels has ruled that cyclists and pedestrians who are hit by a car will always be covered by the insurance of the motor vehicle involved, irrespective of whether or not they are to blame. The proposal, would amend the EU's Fifth Motor Insurance Directive, and will be discussed by the European Parliament this autumn. Each year 9,000 pedestrians and cyclists are killed, and a further 200,000 are injured, in accidents involving cars within the European Union.

A spokeswoman for the European Commission said: "While pedestrians and cyclists cause some accidents, motor vehicles cause most accidents. Whoever is responsible, pedestrians and cyclists usually suffer more in accidents involving motor vehicles. This enhances their protection."

The move would extend a policy that already exists in the Netherlands and is part of a drive to harmonise road insurance policies across the 15 Member States of the EU and boost road safety. In the Netherlands, any car driver involved in a collision with a cyclist is automatically deemed to be at fault. Consequently, it is said, motorists tend to drive more gingerly.

At present, some countries provide for no such insurance cover and courts are often faced with what is generally viewed as an almost impossible task of proving that a cyclist or pedestrian was responsible for an accident. In such cases, all parties typically seek a compromise to permit inclusion of the victim within the motor insurance cover.

Kevin Clinton, head of road safety for the Royal Society for the Prevention of Accidents gave a cautious welcome to the proposal. "In accidents involving adult cyclists it is the driver that is more often at fault," he said.

"With child cyclists the child tends to come off the bike when there is no one around and we expect drivers to take the possibility of this into account. When you get your driving licence you are agreeing that you bring with it more responsibility for safety."


Monday 5th August 2002: Motoring lobby furious about EU plans to protect cyclists; British media runs wild stories about 'bicycle guerrillas'

The EU Fifth Motoring Directive aims to harmonise car insurance laws across Europe, and would mean UK drivers would be deemed to be at fault in any ‘accident’ involving cyclists or pedestrians. Bikebiz.co.uk carried a story on this important directive in June, when it was launched, but only now has the mainstream media caught up. The kneejerk reaction of the motoring lobby (and the government!) was the front cover story in yesterday’s Observer and a major inside story in The Sunday Times, and there’s further vitriolic incredulence in today’s Guardian and in most other newspapers. A Daily Mirror columnist said: "Bicycles are for children...[they are] like masturbation - something you should grow out of. There is something seriously sick and stunted about grown men who want to ride a bike."

Back in June, this site said: [The EU Fifth Motoring Directive] “is an important development and one that is likely to be fought by the motoring lobby.”

And this has come true as you will see when you read the venomous statements from government ‘spokesmen’ and members of the motoring lobby as quoted in The Observer and today’s Guardian, and other newspapers.

The main gripe seems to be that motor insurance premiums could rise by £50 a year. So, the saving of many lives counts for nothing because those saved are “bicycle guerrillas” not worth a wee hike in insurance premiums. As it is, the EU said in its Directive that there is no evidence that premiums would rise.

A newspaper reviewer on BBC Breakfast Time on Sunday said this is a story that’s going to kick up a lot of dust over the next few months…

It's certainly enraged newspaper columnists.

As you would expect, motormouth Jeremy Clarkson had a pot-shot at cyclists in his column in today's Sun.

"Bicycle guerrillas? We’ve already got them. We don’t need this new loony idea to encourage them even more to shoot red lights and ignore the Highway Code.

"They have already taken over a third of the roads with their green tarmac cycle lanes.

"Now the Lycra Nazis want to take over the whole lot! And they still don’t pay a penny for going on the roads which the poor old motorists pay through the nose for.

"Traffic congestion is the fault of the Government — the very people who now want to penalise motorists more for being stuck in traffic.

"When will people understand that roads are for cars and that there is no danger at all from speeding motorists if walkers and cyclists steer clear?"

Amazingly, Tony Parsons in today's Daily Mirror, went even further:

"If we cared anything at all about road safety, then we would tear up all the bicycle lanes today. We would order traffic wardens to nick any cyclists who jumps a red lights - all of them in other words.

"And if we truly cared about safety on our roads, then we would make a bonfire of all those stupid hats, all that hideous Lycra and every bicycle in the land."

The Daily Telegraph had the most rounded coverage, with views aired on all sides.

Many newspapers quoted CTC director Kevin Mayne but he was only given a sentence or two. Here's a much longer statement: "We have long sought parity with our European colleagues and we support the Commission proposals.

"But they will only be effective if they are part of an overall package of measures that change drivers' behaviour. This measure is not controversial across much of Europe because it fits into a culture that enforces speed controls, provides for pedestrians and cyclists and expects roads to be shared public space where the more dangerous vehicle

has a duty of care to the vulnerable.

"The UK has the highest level of child pedestrian deaths in Europe and accident prevention is our ultimate goal. The reaction of motoring and insurance organisations is entirely predictable and uses the fear of increased motoring costs to attract headlines.

"In reality, if a package of measures including traffic constraint, speed control, the introduction of mobile phone bans and better training for all road users was introduced, the number of accidents would fall,the number of road deaths would be reduced and the cost of motor insurance would drop.

"Most cyclists are not hooligans in Lycra: in fact 85 per cent of CTC

members also drive and fully understand the issues from both sides. We

know that cycling as a transport choice is healthier reduces pollution

and in many cases is quicker than driving.

"We accept that a small minority of cyclists' behaviour gives all

cyclists a bad name and we are calling on the government to fund

effective cycle training for all children and young adults. Good

training makes cyclists safer, reduces bad behaviour and ultimately

leads to better educated motorists."


http://www.guardian.co.uk/.../0,2763,769027,00.html

http://www.guardian.co.uk/.../0,2763,769369,00.html

A PDF of the EU's Fifth Motoring Directive can be downloaded from

http://europa.eu.int/.../com2002-244_en.pdf

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