Presumptive liability protects pedestrians
By Meng Yan (China Daily)
Updated: 2004-09-07 01:39

A senior legislative official has said the Law on Road Traffic Safety does not mean motorcar drivers should shoulder all the blame when accidents happen.

"Pedestrians will take their own responsibility if they break traffic rules and the law," said an official with the Legislative Affairs Commission under the Standing Committee of the National People's Congress, the country's top legislative body.

Pedestrians struggle to cross moving motor vehicles in a rush hour traffic jam in Beijing. [newsphoto/file]

Some media reports have interpreted the law as saying motorcar drivers take all the blame whenever there is an accident between them and a non-motorized vehicle or pedestrian. The interpretation has caused an enormous amount of controversy.

The official, who refused to be identified citing reasons of sensitivity, said such interpretations were partial and misleading.

He gave four different scenarios to explain how liability should be determined.

When the pedestrian has committed no offence and the driver has broken traffic laws or regulations, all blame lies at the driver's feet.

When both the pedestrian and the driver are at fault, they should share responsibility. For example, when a speeding driver hits a pedestrian who has crossed the barriers on a highway closed to pedestrians, they should share responsibility accordingly.

If there is any evidence that the driver of a non-motor vehicle or a pedestrian violates the laws or regulations on traffic safety, and the motorcar driver has taken necessary measures in the attempt to prevent the accident from happening, the responsibility of the motorcar driver is reduced.

Insurance companies pay out according to the merits of the case and the amount of premium the driver has paid them.

Insurance pay-outs are up to 100,000 yuan (US$12,000), depending on the premium paid.

The driver will then pay whatever is owing over and above that.

A boy rides his tricycle besides a billboard promoting traffic safety regulations in Beijing. [newsphoto/file]

Third-party insurance is now compulsory under the law.

The official said pedestrians could take up to 95 per cent of the liability in this case.

"We do not totally exempt drivers from taking responsibility because there might be some technical glitches and it is difficult to tell if the driver has taken all necessary measures," he said.

"Such a stipulation might encourage the automobile industry to keep improving their technology and urge drivers to be more cautious on the road," he added.

In extreme cases, when the accident is caused by something as drastic as suicide, the drivers will not take any blame. But the law says the burden of proof is on the driver.

Pedestrians surround to watch a traffic accident scene in a crowded road in Beijing. [newsphoto/file]

The official said the core of the controversial clause is about the doctrine of distributing liability.

The official said the law sets the doctrine of presumptive liability by taking everything into account of current national law provision, worldwide practices and the real situation in China.

The General Principles of the Civil Law, which were enacted in 1986 and took effect in 1987, say civil liability is taken if a person causes damage by using a high-speed means of transport. But if it can be proved that the damage was deliberately caused by the victim, he shall not bear civil liability.

Motorcars come under the definition "high-speed means of transport.''

This is the doctrine of no-fault liability.

He said most countries in the world, developed or developing nations, use either this doctrine or presumptive liability in distributing liability for personal injury and property damage when a vehicle hits a walker or cyclist.

While applying the doctrine of presumptive liability, the driver's responsibility could be alleviated or exempted if he could prove that the accident was caused by the pedestrians or cyclists.

"The driver in accident is required to provide evidence because it is extraordinarily unfair and difficult for a pedestrian to do that to prove if the driver has taken necessary measures in trying to avoid the accident," said the official.

"Drivers should play a principal role in reducing road traffic accidents although pedestrians and cyclists should strictly obey traffic rules as well," he said.

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