A BRISBANE cyclist run down in January sparked a furious road safety debate.
A BRISBANE cyclist run down in January sparked a furious road safety debate. Contributed.

Govt rejects guilty until proven innocent proposal

QUEENSLAND'S peak bicycle group has been left disappointed on the eve of Bike Week by the State Government's refusal to consider Presumed Liability Laws which would have required insurers to pay compensation unless they could prove fault on the part of the cyclists injured in an accident involving a motor vehicle.

An e-Petition with more than 1000 signatures presented to parliament in March had argued the current civil compensation system for personal injury was fault-based in cases between motorists and vulnerable road users.

In a collision driver error must be proven, a default assumption that the driver had not contributed to the crash.

"The onus should be on the driver's insurance company to prove that the casualty caused the collision,” the e-Petition stated.

"Presumed liability would only affect civil compensation charging standards, not those of criminal prosecution, where the principle of 'innocent until proven guilty' would continue to apply.

"Vulnerable road users involved in a collision - who have the least potential to cause death or injury, are usually the only casualty and often the only witness other than the motorist - will often be unable to give evidence due to the injuries sustained.

"We also believe that vulnerable road users, such as children, older people or those with disabilities, should receive full compensation, regardless of their actions. This would align us with many European nations.”

Bicycle Queensland CEO Anne Savage said Saturday there were many examples in our legal system where the onus of proof has been reversed to improve the carriage of justice.

These, she said, included a Bill currently before the Parliament to create executive officer liability for all major safety offences under the Heavy Vehicle National Law, consistent with the Model Work Health and Safety Act.

"This Bill was tabled by the Minister for Transport and Main Roads in February this year and supported by a high-powered Parliamentary Committee in a report released just last week,” Ms Savage said.

"The whole Queensland community pays a high price for motor vehicle insurance claims - we would welcome a balanced discussion about how to get better outcomes for everybody.”

Ms Savage said most western European countries and others including New Zealand, India and China had Presumed Liability Laws.

In a response to the e-Petition Transport Minister Mark Bailey rejected the request saying the current system, which required the person bringing the complaint to bear the onus of proving any fact relevant to cause.

"This reflects a long-standing principle in our legal system,” he said.

"Amending the legislation to place a presumption of liability on a motorist would reverse that onus of proof.”

The Minister cited Queensland Police Service crash data which he said showed that between 2012 and 2016, in serious crashes involving a motor vehicle and a bicycle, the bicycle rider was at fault 41 per cent of the time.

"Given cyclists are at fault in a significant portion of accidents, albeit fewer than motorists, reversing the onus of proof may impact upon a court's ability to consider the specific circumstances of a crash and apportion liability fairly.”

Ms Savage questioned the data relied on by the Minister.

"When considering the need for laws such as this, we must consider all the evidence, not just selective crash data,” she said.

"The fact remains that drivers are at fault in at least 80% of all road crashes involving a cyclist and a motor vehicle.

"In the lesser number of crashes where cyclists are found to be partially or fully at fault, we have excellent systems for easily enabling motorists to prove the liability of the other party.”



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