Campaign for Sustainable Safety, not Strict Liability.

For this post we've two authors. The first part is written by David Hembrow, the second part by Mark Wagenbuur.

Strict Liability
Some people outside of the Netherlands have a huge interest in "Strict Liability".

To many cycling campaigners, this looks like a "solution" to a problem which they experience on a daily basis. They want more respect and this appears to be a way to achieve it.

What the law does, in very rough terms, is to give drivers of motor vehicles the financial responsibility in the event of a crash with a more vulnerable road user. In itself, this is a good idea. It results in cyclists who are hurt in crashes being compensated by the driver of the heavier, faster, vehicle which brings the danger. However, the importance of this law is often wildly overstated across the English speaking world.

"Strict Liability" is known in the Netherlands as "art. 185 WVW" of the Dutch law. Simplified explanations of the law can be found here and here. There is no short snappy phrase for it in Dutch because this is no more than an obscure part of the law which most people take little interest in. People don't talk about this on a regular basis, any more than they do about other obscure parts of the law. Most people are not aware that the law here is different from elsewhere.

Strict Liability has, at best, a very small role to play in keeping cyclists in the Netherlands safe.

Does this mother think it's safe for her children to cycle here because "strict liability" offers financial compensation should a car hurt her children, or could it have something to do with the existence of that cycle-path ? This is what is meant by subjective safety.

How has "Strict Liability" been mis-understood ?
Changing legal liability doesn't in itself change how the streets feel. The lack of cycling in other countries is not due merely to worries about a lack of compensation for remaining family after a family member has been crushed by a truck. Rather, people are scared to cycle due to worry about being crushed by a truck in the first place. This change of law does not in itself encourage a higher rate of cycling. That was never its purpose.

In addition, how the law works is somewhat different to what many people outside the Netherlands have been told. Drivers are not held 100% liable for all crashes with cyclists. That would be quite unreasonable as there are many reasons why drivers might not be wholly responsible.

The law draws a distinction at the age of 14 years. In a collision with a cyclist or pedestrian aged under 14, a motorist is likely to be held to be responsible. However, a cyclist or pedestrian who is older than 14 years of age is expected to know how to behave on the streets and is likely to be held at least partly responsible in the event of a crash. If they're behaving recklessly then they can instantly expect at least 50% of the blame for any collision. An adult pedestrian dressed in black and crossing a road without looking can expect to be held to be liable for damage to a motor vehicle which hits him. That is what the law makes clear.

It's also important to realise that this law is only concerned with material damage and financial responsibilty. For example, if children are hit by a car in the Netherlands, the drivers insurance can never try to claim for compensation from the family of the victim. It could also help to determine who pays for repair or replacement of an adult's bicycle which has been run over by a truck. However, this law is not concerned with allocating blame, or with imprisoning bad drivers.

When did this law come into force ?
Article 185 came onto the statute here after there was a majority cycling culture. The law as it stands now dates from the 1990s when cycling in the Netherlands already looked like this. It is not at all realistic to expect to be able to introduce such a law to protect cyclists, especially to a higher degree than they are protected in the Netherlands, in countries where cyclists are a minority.

Introducing such a law to protect children is another matter, but note that in the Netherlands this law came into force twenty years after the environment started to change to protect children.

Does it have an effect on the behaviour of Dutch drivers ?
I've read comments from enthusiasts of this law along the lines of how its introduction in their country would remove the excuse of "I didn't see him" as a "get out of jail free card" for motorists. However, this is a misunderstanding of what the law is for.

Like most countries in the world, the Netherlands has a rule by which a driver whose car collides with the rear of a car in front is normally held to be responsible for the collision. The threat of being held liable has not eliminated rear end crashes either in the Netherlands or any other country. Such crashes are rarely intentional. It is a human failing that results in crashes like this occurring. The "strict liability" law in the Netherlands is very similar. It also has not had an appreciable effect on the rate of crashes between drivers and cyclists as these also are not intentional. All it has done is to make clear where financial responsibility lies after damage has been caused.

It is very rare that a more severe punishment results in less crime. If it did, then we might expect that the USA having capital punishment for murder in most states might have eliminated murders in the USA. However, the USA has an intentional homicide rate of 4.8 per 100000 people in comparison with a rate of just 0.87 per 100000 in the Netherlands, where there is no capital punishment. There is no direct relationship between punishment and behaviour. Other factors are involved.

We need to understand that few drivers set out with the intention of crashing into a cyclist. Rather, the environment that they find themselves in makes this more likely in some places than others.

Often drivers don't "see" cyclists because cyclists are in places on the road where the driver doesn't expect them to be, where the driver is not looking, where they are difficult to see, or where they can be easily missed due to other distractions. For instance, sometimes it is necessary to look in many directions simultaneously in order to cross a junction safely. That's not just an overseas problem, but is also specifically a problem at the most dangerous junction in the Netherlands.

So what really does keep Dutch cyclists safe ?
If we can engineer roads in a way that takes human failings into account and which results in crashes, injuries and deaths being less common then this is a far more reliable way to improve safety than any amount of punishment after the event.

The really important principle in road design from the Netherlands which is worth campaigning for is Sustainable Safety. This emerged in the 1990s at almost exactly the same time as "Strict Liability" but has received nowhere near as much attention outside of the Netherlands. These days it is the principle of design by which Dutch roads and streets are made to be easy to use, self-explanatory and safe by default, preventing crashes from occurring.

Sustainable safety isn't only for cyclists, but also for other road users including drivers. It's a good part of the reason why Dutch roads are very safe for all road users. Not only is the experience of cycling in the Netherlands different from elsewhere. For a driver, Dutch roads are different to roads in Germany, Belgium, France or the UK. They're a pleasure to drive on. Very easy to use, and as a result, very safe.

For example, at traffic lights here, whether for cyclists, pedestrians or for drivers, if you have a green light then you can go. You don't get cars coming in the opposite direction also with a green light, or turning across you.

This is a different concept of road safety to that in use elsewhere in the world

Sustainable Safety and Campaigning
While it's virtually impossible to get support for "Strict Liability" in most countries because it is seen as a measure to promote the rights of a minority above those of a majority, Sustainable Safety is good for everyone. It not only increases safety for cyclists, but also for every other road user. Because of this, campaigning for sustainable safety to become a principle of road design in other countries has a good chance of mass support.

Not only is Sustainable Safety far more achievable than "Strict Liability", but with its proven record of improving the safety of the Dutch it's also much more likely to have a positive effect on the safety of cyclists, pedestrians and drivers in other countries than is a misinterpretation of a minor Dutch law.

David Hembrow.

Sustainable safety was explained by David in a blog post in 2010, but also read below for Mark's interpretation.

One of the fundamental reasons why Sustainable Safety improves the safety of every road user is that it keeps interactions between different road users, and particularly different types of road users, to the absolute minimum. Without interactions you have fewer chances for mistakes to be made and fewer chances of collision. You can see this in Mark's film below, which is followed by his description of sustainable safety:


Sustainable Safety
Sometimes campaigners and traffic engineers in other countries have trouble understanding Dutch traffic reports. These reports are not always very clear whether they are about separated cycling infrastructure or not. An example: some months ago there were misunderstandings about Fietsbalans (“Cycling balance”) reports that do indeed not clearly state where separated cycle paths were meant. This even led to the mistaken understanding with some ‘anti-infrastructuralists’ that cycle paths were “irrelevant”. But to the Dutch their system is so obvious that it isn’t necessary to specifically mention those separated cycle paths. So what are the principles of the Dutch underlying system?

Sustainable Safety is the name of the Dutch approach to achieve a better road safety (“Duurzaam veilig” in Dutch). The main objectives of this vision are preventing severe crashes and (almost) eliminating severe injuries when crashes do occur. It was introduced and quickly adopted by all road managers in 1992 and has since been very successful. In 2005 it was revised and extended. The approach began with establishing that the road system was inherently unsafe. The goal was to fundamentally change the system by taking a person as a yardstick. The physical vulnerability of a person, but also what a person can and wants to do (humans make mistakes and don’t always follow rules) were to be guidelines for design. There is now an integral approach to the road system which refers to ‘human’ (behaviour), ‘vehicle’ (including bicycles!) and ‘road’ (design). Roads and vehicles must be adapted to the human capabilities and the human has to be educated enough to be able to operate a vehicle on a road in a safe manner. The approach is pro-active, it wants to remedy gaps and mistakes in the traffic system before crashes occur. So Sustainable Safety is about a lot more than just infrastructure.

Sustainable Safety is based on five principles:

1. Functionality (of roads)
2. Homogeneity (of mass, speed and direction of road users)
3. Predictability (of road course and road user behaviour by a recognisable road design)
4. Forgivingness (of both the road and street environment and the road users)
5. State awareness (by the road user)

The principles are based on scientific research and theories from traffic engineering, biomechanics, and psychology. Since the 2005 revision the principles are also based on infrastructure, vehicles, intelligent transport systems, education and enforcement of laws and regulations.

1. Functionality of roads
To the Dutch the most ideal situation is when roads and streets have only one single purpose. To achieve this mono-functionality a hierarchy of roads was introduced.

• Through Roads for high volumes of fast traffic on longer distances.
• Local Access Roads from which end destinations can be reached.
• Distributer Roads which connect through roads and local access roads.

All Dutch streets and roads have been classified (under a legal obligation) and are or will be re-designed to the Sustainable Safety principles by the road managers. This led to areas where people stay (residential areas and areas for shopping/sporting/theatre etc.) and designated space used for the flow of traffic in order to transport people from A to B. Under the Dutch vision these functions cannot be mixed.

2. Homogeneity of mass, speed and direction of road users
Large differences in speed and mass of different road users in the same space must be eliminated as much as possible. Road users can best be forced to travel at lower speeds by road design. This works better than with signs. If crashes occur at lower speed differences they cause a lot less damage to the most vulnerable road user. Where speed differences cannot be eliminated types of traffic must be separated. On roads with higher speeds road users travelling in opposite directions should be separated by a division as well, to further eliminate conflicts. Cycle paths and pedestrians are always separated from these through roads, following the principle of homogeneity of mass as well as speed. Because of this principle the Dutch will never implement a combined bus/cycle lane as is common in some other countries. Instead there are bus lanes separated from other motorised traffic because the mass of cars and buses do not match either. Eliminating crossing movements is possible with roundabouts because on roundabouts traffic flows in less conflicting directions than on an ordinary traffic junction.

3. Predictability (of road course and road user behaviour by a recognisable road design)
Road design should be so consistent that road users instantly understand what they can expect and what is expected of them on a certain type of street or road. The road design itself gives information about the type of road/street. If the street is paved with bricks, there are parked cars and the street is shared with cyclists and gives access to homes, the road user will instantly know and feel this is a 30km/h (19mph) local access street. However, if the road has two carriageways separated by a median, there is no parking and cyclists have their own cycle paths, it is clear to the road user that this is a through road.

4.Forgivingness (of both the road and street environment and the road users)
Humans make errors and willingly or unwillingly break rules. This is a given that cannot be changed. So roads and streets should be designed in such a way that this natural human behaviour does not lead to crashes and injuries. An example is a shoulder with a semi-hard pavement. A road user coming off the main road will not crash immediately, the semi-hard shoulder will give this road user the ability to get back to the main carriageway. Forgivingness towards other road users is enhanced when road design leads to a predictable behaviour of road users. A result of this principle is that motorised traffic sometimes gives priority to cyclists even if they don’t have it. Because it is so clear where the cyclists want or need to go the motorist anticipates their behaviour and gives the cyclist more room than he or she is legally obliged to, often to the surprise of especially foreign cyclists.

5.State awareness (by the road user)
This principle is about the ability of road users to assess their own capabilities to perform tasks in traffic. This has to do with understanding vehicle operation and knowing how speed changes the behaviour of the vehicle to understand what speed is safe in a certain situation. But it also has to do with the assessment of speeds of other traffic users to estimate crossing times for instance. These abilities can be improved by education but there are limits, for instance when road users are children or elderly.

Results of Sustainable Safety
Many countries have seen a considerable drop in traffic injuries and deaths since roughly the 1970s. Reasons were the introduction of seatbelts, drunk-driving laws, helmet laws for motorcyclists and mopeds, car cages and airbags. But in the Netherlands there also was a dramatic drop in injuries and deaths of the most vulnerable road users: cyclists and pedestrians. Traffic researches attribute this difference to the introduction of Sustainable Safety.

Ten years after the introduction researches found a traffic death and injury reduction of on average 6% per year. And that wasn’t the only positive outcome. When the costs of the measurements that had to be taken were compared with the benefits of the reduced traffic injuries and deaths it was found that the benefits outweighed the costs by a factor of four.

Students of the Northeastern University in Boston compared the Netherlands with the US. After analysing all they had learned on their study tour in the Netherlands in 2010 they found the following: “In the 1970’s, the Netherlands and the US had the same traffic fatality rate (fatalities per person). Both countries have seen dramatic decreases in traffic fatality rates over the past forty years […]. However, the Netherlands has put much more emphasis than the US on making their roads inherently safer. The result: the Netherlands has reduced its traffic fatality rate to less than half of the US traffic fatality rate; the Netherlands now has a traffic fatality rate that's only 23% of its 1970 rate, compared to the US whose traffic fatality rate is 54% of its 1970 rate.”

So the system of Sustainable Safety is undisputedly successful and separated cycle paths (albeit for specific roads and situations) are such an integral part of this system that they even need not be mentioned all the time.

Mark Wagenbuur.

Sources
SWOV Factsheets (English)
http://www.swov.nl/rapport/Factsheets/UK/FS_Sustainable_Safety_principles.pdf
http://www.swov.nl/rapport/Factsheets/UK/FS_Sustainable_Safety_background.pdf

SWOV Factsheets (Dutch)
http://www.swov.nl/rapport/Factsheets/NL/Factsheet_Duurzaam_Veilig_principes.pdf
http://www.swov.nl/rapport/Factsheets/NL/Factsheet_Functionaliteit_homogeniteit.pdf
http://www.swov.nl/nl/research/kennisbank/inhoud/05_duurzaam/duurzaam.htm

Sustainable Safety Wiki (English) by students of the Northeastern University of Boston
http://wiki.coe.neu.edu/groups/sustsafety/

Some people refer to "strict liability" as "presumed liability". There are also a few variations on exactly what people think it should mean. However, whether "presumed liability", "strict liability", "stricter liability" and however it's defined, the idea that changing just the legal position of cyclists will make any real difference to their safety is flawed.

This won't be the last post to appear on this blog because there are a few more already written and scheduled for future dates, however today's post is the last we're currently planning to write. The work-load has become too large, we're getting too many emails, too many requests. There are still many things to write about, but it simply consumes too much time to do this without a salary to support it. It's been a lot of work for both of us, and we're both due for a rest. Our thanks go to the many regular readers and supporters of the blog.