Malta and the UK are out of step with the rest of Europe because they do not operate any form of liability rule for vulnerable road users. Strict liability regimes are seen as an integral part of road safety in EU countries.
The principle behind the law is that a driver is voluntarily in charge of a motor vehicle, which is known to be capable of causing severe damage to other road users not themselves in a vehicle.
The law is also based on the fact that drivers are obliged to be insured for such damage, whether or not it is caused by negligence, whereas vulnerable road users are not insured and that this warrants extra legal protection for them.
The presumed liability principle applies only to traffic incidents on public roads involving a driven motor vehicle and road users not in a motor vehicle. It does not apply to damage to goods, property, people transported in the motor vehicle or animals on the road. It is also not applicable to certain situations where other laws regulate who is liable for the financial consequences of the incident.
Another justification for the introduction of presumed liability rules is that it happens very often that there are no witnesses to vehicle road accidents and vulnerable victims may be unable to recall the circumstances of the accident because of concussion. This can make it impossible for them to prove that the driver was in error. Such road accident victims often end up having to cope financially with permanent disability due to their injuries with loss of mobility or capacity to work.
Though the two are not necessarily linked, countries which operate a liability regime in civil law are typically countries with safer roads for vulnerable road users. Such liability rules are also in force in countries outside of Europe, including India, Bangladesh, Vietnam and China. The law is exceedingly strict in Sweden, where all vulnerable casualties qualify for compensation irrespective of the circumstances.
As in the UK, Malta’s current system expects the victims of accidents (or their family in the case of those killed) to qualify for compensation by proving that the driver was at fault.
For this they have to go through arduous and protracted legal processes, usually against an insurance company, to gain refund for medical treatment, loss of earnings or compensation for damages.
The presumed liability principle applies only to traffic incidents on public roads involving a driven motor vehicle and road users
The aim of the ‘presumed liability’ or ‘strict liability’ rules is to protect vulnerable road users from financial loss caused by drivers of motorised vehicles on the basis that the vulnerable road user invariably suffers more damage, injuries or death in motor traffic accidents (this is believed to be the case in 99.9% of such accidents).
In other words, the purpose of the law is to introduce an element of fairness in answer to the inequality of damage after accident between a motor vehicle and a vulnerable road user.
Another underlying principle of the law is the fact that drivers are routinely insured for such damage whether or not due to carelessness or dangerous driving, whereas vulnerable road users are not; this therefore warrants extra legal protection for vulnerable road users. If the victim is insured for the sustained damage or injuries, this is taken into consideration.
The presumed liability principle applies only to traffic incidents on public roads and only those involving a driven motor vehicle and a road user who is not using a motor vehicle. It does not apply to damage to goods, property, people transported in the motor vehicle or animals on the road.
The argument invariably arises that the strict liability principle contradicts the principle of “innocent until proved guilty”. The short answer to this is that this is a law of civil liability and not a question of guilt.
There are also no grounds for arguing that such a liability remedy will constitute a blank cheque for vulnerable road users (or their family) who are injured or killed. This is not so.
The onus will be on the driver’s insurance company to prove that the casualty caused the collision and, if the victim is shown to have caused or contributed to a collision, the claim will be reduced or rejected outright and the legal costs borne by the victim.
If the non-motorised road user is insured for the sustained damage/injuries, this is also taken into consideration.
If there is culpability on the part of the non-motorised road user, the court will consider how far the different parties in the incident contributed to the damage (share in fault) as well as other specific circumstances that might reasonably affect the share in liability.
This protection is lost when it can be proved the non-motorised road user caused the damage on purpose, or his/her behaviour was careless or intentional recklessness.
Adoption of a liability system to protect road accident victims is an essential key measure not only for fairness and social justice for the vast majority of accident pedestrian victims, but also to also help create a safer road environment and to promote healthy active mobility.
As long as there is no political will to restore justice to vulnerable road users, then the unhealthy and dangerous road situation will persist in Malta. In the absence of strict road enforcement, drivers will not be motivated to drive cautiously in the presence of vulnerable road users. This is of especial significance to children and the aged, who are most commonly the victims of traffic accidents.