Safe passing distances, dooring and the law

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There is ongoing pressure on the government by advocacy groups to impose stricter penalties on drivers who open their car door on a passing cyclist. But are heftier penalties the most effective way to change behaviour?

There was a parliamentary hearing held last night where advocates urged Victorian MP’s to impose tougher penalties on motorists (PDF)

“64B Opening doors of a vehicle 5 A person must not cause a hazard to any person or vehicle by opening a door of a vehicle, leaving a door of a vehicle open, or getting off, or out of, a vehicle. Penalty: 10 penalty units.”

This proposal to amend the Road Safety Act would make the fine of opening your car door on a passing cyclist equivalent to running a red light or if you driving past open tram doors.

Some argue that raising penalties is not an effective approach for changing motorists’ awareness of cyclists. The author of this post, who prefers to remain anonymous, is an avid cyclist who also works in regulation, with significant experience in advocacy, developing government transport policy and laws. On a personal level, he is a keen observer of and has a strong interest in advancing the cycling cause. He has some interesting points to consider for this ongoing debate.

Safe passing distances, dooring and the law

Cyclists want motorists to stop dooring them, passing too close and generally threatening their safety. Understandable, really. But more controversial is how to achieve it and everyone seems to have their own view.

As someone with experience in both cycling and how laws are developed, I thought I’d offer what I hope are some useful insights on the topic.

People typically view laws as a means of ensuring actions and behaviours deemed by society to be a breach of others’ rights are punished and corrected – balancing the scales of justice. Most cyclists have probably been in heated confrontations with motorists at one time or another and walked away thinking “It isn’t my job to police these people, we need stricter laws and enforcement of them” – I certainly have.

Open a door into traffic, in front of a cyclist, and the driver or passenger should be punished. This was not the case in the now infamous death of cyclist James Cross, who was flung into traffic after colliding with a car door opened into his path on a busy Melbourne road in March, 2010. Senior officers reportedly blocked any prosecution of the driver. The online cycling community seemed to judge that decision harshly.

It certainly seems logical to believe that when people observe punishment being metered out to others, the penny should drop that they will avoid being punished themselves by complying with the law. But studies of compliance behaviour strongly suggest that motivations for and means of complying with or breaking laws are far more complex.

Of particular relevance is the theory of bounded rationality, which contends that limitations on available information and cognitive powers more significantly influence human decisions than purely rational factors (e.g. the size of a traffic fine). It is likely that most people who have caused or contributed to the accidental death of another would be deeply affected for a long time afterwards. It is reasonable to suspect that this would weigh much more heavily on how they act in the future than a meagre monetary fine. I wonder if it impacted on the decision not to charge the driver responsible for James Cross’ death – we may never know.

Of course, the corollary is that people who have never experienced causing serious injury to another person, particularly by a given means (e.g. dooring), are less likely to consider that risk in everyday decision making (such as deciding to open a door into traffic). Discovering in hindsight that their act carries a hefty penalty is of obviously limited benefit to their victim.

Importantly though, broad changes in societal behaviour, or cultural change, can be achieved by other, complementary means. An example is drink driving. In decades past, drink driving was more commonplace and crucially, more socially acceptable. This has changed, due in part to stronger enforcement, but also conscious efforts by government to shift people’s thinking about how smart risking their own and others’ lives by getting behind the wheel while tanked really is – i.e., not very.

This was discussed in an OECD report entitled Reducing the risk of policy failure: challenges for regulatory compliance, p.72 (PDF).

“A large body of empirical sociological and psychological research converges on the finding that non-coercive and informal alternatives are likely to be more effective than coercive law in achieving long term compliance with norms, and coercive law is most effective when it is in reserve as a last resort.”

Once you achieve that cultural shift in thinking, a “magical” thing happens – ordinary people start enforcing what become behavioural norms – passengers admonish drivers who threaten the safety of cyclists, people stare with blank disappointment at their mate in the pub boasting about shaving a pesky rider. Changing societal behaviour represents a quantum leap over relying on regulatory (police) intervention, for the simple reason that there are a lot more ordinary people out there than police and courts, and they often exert greater influence over their peers.

It should be stressed that this doesn’t work for everyone – some people only respond to more heavy handed encouragement. But there is substantial evidence that – even if inadvertently – treating essentially honest and diligent people as criminals risks eroding their good will and turning them into actual criminals (or non-compliant with a given law). I would contend that this point is highly relevant to the current debate on how to better protect cyclists riding in traffic – we need the cooperation of motorists, not their submission.

Recently, some cycling bodies have called for the road rules to be changed, to specify minimum passing distances for cyclists. It has been argued the current rule, that a driver “must pass the vehicle [cyclist] at a sufficient distance to avoid a collision”, is ambiguous and ineffective. While I share the latter concern, I also hold some concerns about whether a minimum passing distance would be of much benefit to cyclists. In particular, it is unclear whether the rule would be any more enforceable than the current one. Police are reluctant to charge motorists for offences unless they are confident the charge, if contested, will stick in court; asserting that a motorist left an insufficient gap when passing is all too often easy for the defense to cast doubt on.

Similar calls have been made for more stringent penalties for dooring cyclists. But is that going to change behaviour? Are motorists weighing up the consequences before deciding to open their doors into traffic? I’d suggest it’s more likely they’re not thinking about them at all. That isn’t to suggest heavier penalties aren’t justified – if I was doored, I too would want the perpetrator to suffer for their crime.

So should the laws be changed for cyclists? Most of the incidents cited by cyclists are already illegal. My experience in discussing them with fellow cyclists is that is difficult to get existing laws enforced. That sometimes comes down to resource prioritisation by police (or more harshly put, the care factor), in other cases – rules of evidence; a lack of independent witnesses often ternimally weakens a charge brought against a motorist. This is a difficult problem to surmount. Some European countries have introduced strict liability provisions which make it an offense for a motorist to collide with a cyclist. Unfortunately, we’ve still got some cultural shifting to do before that’s a realistic prospect in Australia. Some cyclists have taken to mounting video cameras as their “independent witness” – an effective measure, if a sad reflection on the state of affairs.

So what’s the answer? There’s probably no single answer to making cycling safe. But I’d argue that a key missing element at present is a co-ordinated effort by influential bodies, particularly government, to take the heat out of the simmering motorist-cyclist debate and conflict. It has been argued that it is only a minority of motorists harbouring resentment toward cyclists. However, it would seem that the spread of uninformed and illegitimate views, particularly by opinion leaders such as the media and even politicians, is fuelling misconceptions of cyclists and helping normalise dangerous driving directed towards us. A cultural shift in attitudes towards cyclists is possible by reinforcing the message that cyclists are legitimate and vulnerable road users, deserving of motorists’ and society’s respect.