the ubiquitous blog

Almost three years ago I wrote a post called Say no to ridiculous car trips in which I pointed out that there has been a steady decline in the number of journeys which people are taking by active means. Scarily enough 20% of people said they take walks of 20 minutes less than once a year or never, which goes a long way to explaining why in the UK an estimated 60.8 per cent of adults and 31.1 per cent of children are overweight. This of course comes at a cost, in the cast of the NHS more than £5bn every year and the wider economy more than £2bn a year in lost productivity.

One obvious solution to this is get people more active, this is where active travel has a role to play, so I was please to hear that the Scottish Government was finally going to take some action. Sadly it turned only this 40 second video and not anything substantial such as putting real funding into active travel or seriously trying to make the roads safer (I have a few suggestions of how to do that).

OK, so it is a start, but is not enough and that is why I will be joining the second Pedal on Parliament protest ride on Sunday.

Today we heard the sentencing of Gary McCourt, the driver who killed Audrey Fyfe in August 2011, and it has generated much anger. At the end of the trial it was announced that Audrey Fyfe was not the first person that he had killed. McCourt had previously been found guilty in 1986 of causing another cyclist’s death by reckless driving. After that offence he was jailed for two years, this time round he has been ordered to carry out 300 hours of community service and given a five year driving ban. There have already been a number of complaints that the sentence was unduly lenient, and that, at the very least, he should have been banned from driving for the rest of his life.

If this wasn’t enough, the Sheriff, James Scott, said that the collision between McCourt and Mrs Fyfe was caused because of a “momentary” loss of concentration. Then he went on to suggest that Mrs Fyfe contributed to her death by not wearing a “safety helmet”, so blaming the victim for her own demise. This sort of victim blaming should be totally unacceptable. Had Mrs Fyfe been walking across the road when she had been hit, there would have been no suggestion that she should have been wearing a pedestrian helmet. What if she had been pushing a pram and he had “clipped” that? Would it still be the victim’s fault? Just because she was cycling, why should she have been expected to wear a plastic hat to protect her? It is not as if it would have provided any protection or prevented her from being hit in the first place. Her death was solely due to McCourt’s actions and the jury convicted him of causing death by careless driving. Mr Scott’s comments are disgraceful and totally unacceptable. I am not the only one to feel this way:

@rolfraehansen In other news, Judge spares murderer jail because victim wasn’t wearing stab-proof vest. That’s the illogic. @popscotland

— scotbot (@scotbot) May 3, 2013

If Sheriff’s comments reported accurately they’re frankly shameful.

— Chas Booth (@CllrChasBooth) May 3, 2013

@threefromleith @cllrchasbooth Comments are absolutely dreadful. No basis in fact, and totally, totally irrelevant: ctc.org.uk/campaigning/vi…

— Cllr. Andrew D Burns (@AndrewDBurns) May 3, 2013

One can only hope that there will be better training of Sheriffs in the future, there is a need to teach them why wearing cycle helmets isn’t compulsory. Lets face it, until the judiciary take safety on the roads seriously, the law will not offer protection to vulnerable road users. For this reason I urge you all to join the Pedal on Parliament protest ride on the 19th May, to call for safer roads for all!

For some time now, I have been in favour of a law of Strict Liability. This defines who is liable when collisions occur on the roads. So I was pleased to learn that a Peebles lawyer, Brenda Mitchell, had started a campaign for Strict Liability called Road Share. This is a very welcome move, Brenda has done a lot of research on this issue and makes a very clear case for including Strict Liability as part of our civil law, in the same way as the majority of European countries have done (see map below).

Why it is that Scotland hasn’t made this change yet is unclear, it is not as if the concept of strict liability does not already exist under Scots law, as it underpins much of the Health and Safety legislation. For example, if you are felling a tree with a chainsaw, and a third party walks into the line of fall of the tree, it is the person operating the chainsaw that is held to be liable if there is injury to the third party. Likewise, if you fire a firearm, you are automatically held liable under civil law if you hit someone accidentally, and liable under the criminal law if you shoot them deliberately. This is an important distinction and one that is often missed by critics of Strict Liability. This new campaign to apply the principles of strict liability to road traffic collisions is about changing the civil law code, not the criminal law, where the central principle is (and will remain) that the accused will remain innocent until proven guilty. Strict liability is solely about who has the greater duty of care, and that should clearly be the person who is in the position to do the most harm.

Taking the firearm analogy above, we allow people to own and use firearms strictly under licence, because firearms are fundamentally dangerous. Similarly, we only permit motor vehicles to be driven on the public highway under licence because motor vehicles are fundamentally dangerous: a moment’s inattention can be fatal, and not necessarily only to the driver. For this reason, any suggestion that pedestrians or cyclists owe a duty of care to motorists is absurd, as in the event of a car hitting a pedestrian, the driver is very rarely, if ever, the one that is hurt.

Similarly, a case can be made that cyclists do owe a duty of care to pedestrians, and this would be covered as part of the hierarchy of strict liability. This, however, would not lead to the need for cyclists to take out compulsory third party insurance. Many cyclists already have third party insurance (although they might not realise it), in my case it is bundled in with my household insurance. The thing about insurance is that it is priced according to risk, with riding a bicycle for transport or leisure being a low risk activity such for causing harm to others (sports cycling maybe excluded). As the risk of a claim is so low for the insurance companies, they feel that they can bundle it in with other insurance packages for free, as incentive to buy. This is not the case with motoring insurance, where premiums are higher because the risk of a claim is very much higher. It is because driving is inherently dangerous that is a legal requirement for all drivers to carry third party insurance, if the risk to others was as low as that posed by cyclists, then there would be not legal compunction.

A law of strict liability would also have an impact on motoring insurance premiums, and the good news for drivers is that it would result in lower premiums. The main reason for this is that the UK is one of the most expensive countries for motor insurance BECAUSE it doesn’t have a law of strict liability. Therefore, in the event of a collision involving a motorist and a vulnerable road user resulting in injury to the vulnerable road user, that person often has little choice but to sue the motorist to gain compensation from the motorist’s insurance company. Often the insurance company will try to reduce the payout by making claims of “contributory negligence”, which is often a way of blaming the victim for being hit and has nothing to do with fairness. The only people to really gain from this type of litigation are the lawyers.

Given that there are so many obvious advantages to having a law of strict liability, it seems strange that there is so much opposition to it. Part of this is due to a failure understand that it benefits everyone in some way. Another reason is the mistaken belief that there is some sort of right to drive motor vehicles which there isn’t – driving is only permitted under licence and that licence comes with responsibilities. If you are a safe and considerate driver, you have nothing to fear and much to gain from a law of strict liability. It is time that we, as a society, vigorously challenge the Mr Toad’s attitude to driving. Strict liability is not a panacea, it can not by itself make our roads safer, but it is a part of the solution.

Dear Councillors,

Following on from the future of local transport debate the other evening, I would like to propose a simple parking experiment. It would not cost much and should be fairly straight forward to carry out.

I suggest that the council gets four or five Car Bike Ports, puts them in parking bays around the city, and then monitor what happens. If you were to leave them in a single bay for no more than a few months at a time, you would only have to use Temporary Traffic Regulation Orders (TTROs). Or you could have them moved between bays on the same street every few days, so that you would even need to bother with the TTROs.

As it is purely short term experiment there should be to much planning needed and as the Car Bike Ports were originally commissioned by the London Festival of Architecture, the Street Scape people shouldn’t have a problem. The Car Bike Ports could even be rented to keep the cost down. Although I suspect that by the end of the experiment there would be a clamour from the local trader for keeping them.

So are you wiling to give it a go?

Kim

It would be great to see something like this in Edinburgh:

I have been looking for short films which could potentially be shown on the big screen in Festival Square and have put together quite a list. However, I am not sure the BBC would let me show this wee film…

… which is a shame as the world should rediscover the joy of riding a bike, like the Dutch in Amsterdam