The “Cyclists’ Touring Club” (CTC) – which bills itself as the United Kingdom’s “National Cyclists’ Organization” – has not been the most effective promoter of cycling. There’s a lot less cycling in Britain now than there used to be and the CTC has been notably ineffective at even slowing – let alone reversing – that trend.
But, that said, we kind of like one of their recent campaigns: “Stop SMIDSY“. “SMIDSY” is a a darkly comic acronym for “Sorry Mate, I Didn’t See You”. It pithily summarizes the problem for any cyclist (or pedestrian) hit by a car. In practice (unless they are obviously inebriated or there is some other extraordinary eyewitness or physical evidence of negligence), the drivers of vehicles who hit cyclists have a “get out of jail free card” that immunizes them from either criminal or civil liability. All they have to do is say “Sorry Mate, I didn’t see you.”
Our neighbors in Maryland have tried to to address the get-out-of-jail free problem by adding additional penalties that prosecutors can seek for drivers. But Maryland’s bill doesn’t do anything at all about the heart of the problem: SMIDSY. And, though we’re glad to see the CTC grappling directly with the SMIDSY problem, it’s not at all clear that they are going to get behind any effective anti-SMIDSY measures.
Our Canadian cousins, on the other hand, have seized the bull directly by the horns. The Canadian Highway Traffic Act (Section 193(1)) cuts right through the seemingly Gordian Knot of SMIDSY with some very simple language:
Onus of disproving negligence
193. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.
And “Sorry Mate, I didn’t see you” does not meet the burden of disproving negligence. Indeed, it might tend to be cited as corroborating evidence of negligence! You didn’t see that pedestrian you hit? Why not? What were you doing?
Another term for “onus of disproving negligence” is “rebuttable presumption of liability”. This was one of the potential 2012 advocacy goals discussed recently on November 8. If you have any questions about rebuttable presumption of liability; or about whether changing the Delaware code should be a Bike Delaware priority; or you would like to help bring this change in the law to Delaware, please let us know:[contact-form-7 404 "Not Found"]