Road Rights- The Dutch Law
By Bob Mionske
It’s a derogatory word for “driver” that’s sometimes used by motorcyclists and bicyclists—it refers to the steel cage of the automobile that surrounds and protects motorists from the consequences of their own errors. If you’re surrounded by a protective steel cage, your safety is less dependent upon being a careful driver. And if you hit another motorist, he or she has a steel cage, too. The drivers tell their insurance companies their version of what happened, and the insurance companies sort out the rest, deciding between themselves who owes what for the fender bender.
But when the collision is between a driver and a cyclist, things are different. The cyclist isn’t shielded by a steel cage—and the cyclist is also not protected by the law. In contrast, the law does protect the driver, and more importantly, the driver’s insurance company, from the consequences of careless driving.
Under American law, if you are hit by a car while riding your bike, you have to prove that the driver was negligent, and that you were injured as a result. If you and the driver both say that the driver negligently injured you, that pretty much settles who’s at fault. But if the driver tells his insurance company that you were at fault, or if you were injured and can’t remember what happened, it’s going to be an uphill battle for you. If the insurance company thinks there’s any chance they can beat you, they will deny your claim and fight you every step of the way.
The truth about what really happened on the road does not matter. You have the burden of proof, and all the insurance company has to do to win is create enough doubt about your case. It’s your word against the driver’s word; your expert’s opinion against their expert’s opinion. Throw in some social prejudice against cyclists—as well as against “frivolous” lawsuits—and you may get a jury that sees things the driver’s way. The insurance company has a lot of money to fight you, and they will not hesitate to spend whatever it takes in time and money to beat you.
The Dutch have a different approach. Instead of shielding drivers and their insurance companies from the consequences of careless driving, Dutch law shields cyclists. If a cyclist is involved in a collision with a driver, the cyclist does not have to prove that the driver was negligent. Dutch law begins with the assumption that the driver is at fault. If the cyclist was the person at fault, the Dutch driver must prove that with evidence. Under Dutch law, the burden of proof has been shifted from the injured cyclist to the driver—which is exactly as it should be.
Why? The driver is physically protected by a steel cage, and the cyclist is not. Also, when the driver is legally shielded from the consequences of careless driving, there is little incentive to be careful while operating a motor vehicle. The result: 630 cyclists were killed on American roads in 2009 alone, and more than 50,000 were injured. As the Dutch have discovered, when the law requires the driver to prove that the cyclist was at fault, drivers become more careful. A lot more careful. And that is a law we can all live with.
Research and assistance by Rick Bernardi, J.D.
This article, The Dutch Law, was originally published on Bicycling on March 5, 2012.
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