17 May 2013 PPA comments on Draft legislation re Safety of cyclists
PPA has responded as detailed below to the Western Cape Department of Transport and Public Works on the draft legislation pertaining to cycle safety. We encourage our members to also write to Mr Watters to express your opinion, as it does make a difference if many people write in. Public comments are accepted until 24 May 2013.
17 May 2013
The Head of Department
Attention: Mr. ML Watters
Western Cape Department of Transport and Public Works
P O Box 2603
Cape Town 8000
By email: malcolm.watters@westerncape.gov.za
1 Our comments deal with the feasibility and desirability of the proposed regulations. We do not express an opinion on the issue as to whether the Provincial Government can make regulations which differ from and possibly contradict the National Road Traffic Regulations.
2 There are five main subjects that we intend to deal with. They are:
2.1 Passing distance of 1 metre instead of 1.5 metres: Regulation 2(1)(b).
2.2 Requirement to ride as close as possible to left edge of roadway: Regulation 3(1)(a)
2.3 Prohibition against carrying another person on a bicycle: (Regulation 3(2)(d)
2.4 Not riding abreast: Regulation 3(2)(b)
2.5 Requirements for lights: (Regulation 4)
Passing distance: (Proposed Regulation 2(1)(b).
3 In preparing this comment, we requested “the references or the material that indicate the “global practice” or evidence that indicates that “1 metre was more appropriate“”. No such material was provided to us. Minister Carlisle indicated that the his “law advisers, having applied their minds, requested that the distance” be one metre. He further indicated that traffic officials from the City agreed with the law advisers. We were further informed by Mr. Watters that this was decided by looking at legislation in the USA, where some states provide for a passing distance of three feet.
4 From the information provided there does not appear to be any reliance on scientific research in this regard. We note that the legislation considered was from the most car-orientated society in the world, the USA, and not legislation from cycle-friendly jurisdictions such as Europe. If the drafters had considered Europe, they would have noticed that the passing distance is 1.5 metres in Spain, France (outside cities) and Germany.
5 It appears to us that it was simply a matter of looking at what passing distance was legislated in a car-centric society. This is not an appropriate approach where accident statistics and other factors are not considered.
6 It would appear that the decision to choose 1 metre rather than 1.5 metre was more a matter of feeling, rather than based on any scientific research. If we are wrong in this regard, please provide us with the scientific evidence so that we can consider the validity and persuasiveness thereof and make further submission to deal with such evidence.
7 There is a difficulty with taking the route of feeling or simply taking a view: depending on who you consult, you will get the answer you want. Law advisers and senior traffic officials all drive motor cars. They probably drive motor cars every day to work. They are not the majority of the population is this province who do not have access to a private motor vehicle. Law advisors and senior traffic officials see things only from the perspective of motor vehicle drivers (who do not want to be delayed at all from not passing cyclists because a 1.5 metre safe passing distance is not available). The people that need to be consulted and considered are the commuting cyclists who ride at rush hour in busy traffic on commuting routes, as well as the people who would cycle to work but for feeling unsafe because motor cars pass too close.
8 South Africa and the Western Cape differ from the USA in the following respects:
8.1 Due to differences in other legislation and other factors drivers exercise more caution around cyclists and a wider passing distance is not necessarily required. Unlike in the South Africa, drivers in the USA are personally liable for damages caused by personal injury and death and have to carry compulsory motor vehicle insurance. There is no real disincentive in South Africa to causing personal injuries or death. The extremely high motor vehicle accident death rate in South Africa (208 per 100 000 motor vehicles) compared to the USA (15 per 100 000 motor vehicles) according to the WHO reflect that there is no real disincentive to causing accidents.
8.2 Conditions are different in those US jurisdictions, both in terms of road surface and wind. In the Western Cape a sudden gust of wind can easily cause a cyclist to move laterally a distance of one metre. See the video at http://www.youtube.com/watch?v=u8wtnBJOgdM (taken in Cape Town) at 1:30, which demonstrates this. Road conditions (such as potholes, missing man hole covers) can cause a cyclist to swerve or fall. A cyclist falling is at a real risk of being run over by a car passing at one metre, the risk is greatly reduced at a distance of 1.5 metres. Similarly a passing distance of 1.5 metres allows a cyclist a much better chance of recovering from a sudden gust of wind.
9 Ultimately the question posed is whether the benefits of a 1.5 metre distance outweigh the disadvantages. The only disadvantage is that in a small percentage of cases a car would have to wait to pass a bicycle. This small percentage of instances as insignificant against the increased risk of passing at 1 metre.
10 An additional factor to consider is not only the actual risk but the perceived risk. Many people are discouraged from commuting by bicycle because of the perceived risk. Motor vehicles passing at a distance of 1 metre at a differential speed of 40 metres is terrifying to many people.
11 We submit that draft regulation 2(1)(b) should be changed to one and a half metres.
Keeping as close as possible to the left (Proposed regulation 3(1)(a)
12 We are not aware of any legislation anywhere in the world that requires a cyclist to “keep as close as possible to the left edge of the roadway” (or right, depending on whether vehicles drive on the left or right). We have noted that some states in the USA require a cyclist to ride as far to the right (read left for SA) as “practicable“, with various exceptions (See Uniform Vehicle Code Section 11-1205(a).) This is very different from “possible”. Section 11-1205(a) only imposes this obligation on a cyclist who rides at “less than the normal speed of traffic”.
13 Even the law regarding the requirement to ride as far left as “practicable” has been validly criticised. We refer in the first instance to Bob Mionske, JD, Bicycling and the Law, 2007, ISBN-13: 978-1-931382-99-1. The author points out at page 57 that traffic officers and officers often misinterpet even the requirement of “practicable”.
14 The requirement to ride as far left as possible at all times is against the advice of all authoritative texts on safe cycling.
15 John Franklin Cyclecraft 4th ed, 2007, ISBN 978 0 11 703740 3, discussed this issue authoritatively at pages 85 to 91. This book formed the basis for the British National Cycle Training Standard. The author points out that the primary riding position is in the centre of the left most moving traffic lane. One should take the secondary riding position (to the left of the moving traffic, but not closer than 0.5 metres from the edge of the road) when your own safety is not thereby impaired. He points out the reasons for not riding far to the left: 1. One must ride in the zone of maximum surveillance of traffic from behind and crossing traffic; 2. The road surface is better; and 3. To prevent following drivers from passing you unsafely.
16 Robert Hurst The Art of Urban Cycling, 2004, ISBN 0-7627-2784-7, at page 75, advises to ride in centre of the [left] lane or in the [left] wheel depression, which he describes as the default position. He further points out (at page 74) that cyclists should never cycle within 3.5 feet [1.07 metres] of parked cars, because of the danger of car doors opening.
17 Richard Ballantine in Richard’s 21st Century Bicycle Book, 2000, ISBN 0 330 37717 5, gives the very clear and simple advice at page 233-234: “If the road or street is too narrow for overtaking vehicles to pass you with enough room, then ride back out in the centre of the lane. On a single-lane road do not let them pass until it is safe for you to do so.”
18 The danger in not doing so is illustrated by the following diagram from http://www.bikexprt.com/streetsmarts/usa/chapter2a.htm (remembering that it illustrates the situation where vehicles drive on the right hand side, not left hand side of the road):
19 We submit that before such a regulation is proposed one should review the scientific literature. In particular, the research of Dan Gutierrez and Brian DeSousa, which indicates wider passing distances where cyclists ride in the middle of the lane, should have been considered.
20 As far as we are aware there is no authoritative and reasoned case made out for a requirement to ride as far as “possible” to the left.
21 We submit that this provision should be deleted from the proposed regulations.
Not carrying another person: Regulation 3(2)(d)
22 This regulation seriously affect poor people’s mobility, without making it safer. There are many poor people in the Western Cape who transport children and others on their bicycles. Recreational cyclists are unlikely to be affected by this regulation.
23 The following photograph from Stan Engelbrecht and Nic Grobler, Bicycle Portraits, 2012, ISBN 978-0 620 52251-9, http://www.bicycleportraits.co.za, depicts the type of people whose mobility will be unfairly curtailed by this proposed regulation:
24 Even in an affluent country such as the Netherlands one often finds two, sometimes three children on a bicycle.
25 The effect of this regulation will be that poor people are denied compensation from the Road Accident Fund, as it will be found that they were negligent in riding with more than one person on the bicycle. Poor people will do so anyway, regardless of the regulations (out of necessity).
26 National Road Traffic Regulation 311(5) states: “No person riding a pedal cycle on a public road shall carry thereon any person, animal or object which obstructs his or her view or which prevents him or her from exercising complete control over the movements of such pedal cycle.” This regulations is reasonable, as it only restricts the particular activity that might be dangerous. Going further than this adversely affects poor people’s mobility unfairly and unreasonably.
27 We submit that this provisions should be deleted from the proposed regulations.
Not riding abreast: Regulation 3(2)(b)
28 This proposed regulation does not promote safety at all. It is also contrary to paragraph 2(b) of Article 16 of the Geneva Convention on Road Traffic 1949 and paragraph 1 of Article 27 of the 1968 Convention.
29 We know of no other jurisdiction that has this prohibition.
30 The proposed regulation serves no purpose. National Regulation 319 in any event prohibits the hindering or obstructing of traffic on a public road.
31 We submit that this provisions should be deleted from the proposed regulations.
Requirements for Lamps: Regulation 4
32 We know from personal experience that less than 1% of cyclists in poor neighbourhoods have lights, simply because they cannot afford it. Even where we have handed out free lights we find that the lights often do not work after a year because the cyclists cannot afford new batteries.
33 The reality is that poor commuting cyclists will not use lights, regardless of what is legislated. It will only serve to limit the claims of poor cyclists against the Road Accident Fund.
34 The National Regulation 178 recognised this, and permits lights, but does not require lights for bicycles.
35 We submit that the minimum requirements (if any) should be either a lamp (light), a reflector front and back, or reflective strips on clothing front and back.
Conclusion
36 The changes suggested above should be made so that cyclists are not less safe and worse off.
Stephen Hayward (Chair)
Lance Burger SC
for Pedal Power Association