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Let Scotland lead the rest of the UK by moving to presumed liability for vulnerable road users

Let Scotland lead the rest of the UK by moving to presumed liability for vulnerable road users

The UK was first country in the world to require drivers of motor vehicles to have insurance. When the Road Traffic Act (1930) introduced compulsory third-party insurance, it was intended to provide a means of assured compensation for the injured victims of road traffic collisions (then, as now, mostly pedestrians and cyclists).
“However, since then we have created a David v Goliath culture, where the odds are frequently stacked against the vulnerable, who have had the misfortune to have been hit by the driver of a motor vehicle. In many cases, it is impossible for them to claim compensation (to which are fairly and reasonably entitled) without resorting to litigation. This only adds to the distress for those who have been injured through no fault of their own.

We at Road Share think it is right for Scotland to lead the rest of the UK by changing its Civil Law to respect and protect the vulnerable in society by moving to a system of presumed liability. This change will support pedestrians and cyclists injured in road traffic collisions.

All political parties who care about social justice should incorporate the Road Share proposals for presumed liability in their 2016 manifestos. We can no longer sit back and watch our legal system fail the Nation’s pedestrians and cyclists. We need to ensure that fairness hdflive.com to the individual sits at the very heart of our civil legal system. At present, the process for obtaining compensation is heavily weighted against the injured individual who has to take on the might of the driver’s insurance company.
“Presumed Liability would encourage insurance companies to re-evaluate their prospects of success in showing that the injured party has been negligent in some way. This would mean that vulnerable road users would be compensated quickly and fairly, without resort to expensive Court actions. These Court actions affect everyone in terms of cost, time, money and, often for the injured party, a great deal of stress.

The Road Share campaign was initiated to highlight the shortcomings in civil law road traffic liability cases where there seems to be little recognition of the sheer disparity between a motorised vehicle, and walking or cycling regarding the ability to cause serious harm to others. Presumed liability allows for a recognition of who brings most harm to a collision and, thereby, shifts the burden of proof from the vulnerable to those with the potential to cause greater harm. If liability for a collision between a cyclist and motorist falls equally on both parties, or on one party more than the other, this can be accounted for within the framework of Presumed Liability. realrecipe.net It is not intended to unfairly blame the party with the greater potential to do harm. Therefore, Presumed Liability offers a fairer and more responsible approach to compensating vulnerable road users while, at the same time, ensuring that reckless cyclists and pedestrians, who are entirely “the author of their own misfortunes” are not compensated. At present, injured vulnerable road users very often face a David v Goliath battle against an insurance company. This must change.

Please show your support for Presumed Liability by signing our online petition.

Kim Harding is a member of the steering group of the Road Share campaign.

The post first appeared in Holyrood, Scotland’s fortnightly political and current affairs magazine that keeps people informed.

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The politics of cycle clothing

The politics of cycle clothing

I was at the Cycling Scotland conference and tried to do a bit of live tweeting. Derek MacKay MSP stated in his speech that he prefers not to be photographed in hi-viz, to which I tweeted:

I was rather surprised by the reaction that this sparked off on twitter. Firstly, there was the comment that wearing nice clothes was not going to make the roads safer. But It was a comment that rather missed the point, as neither wearing hi-viz nor a helmet does. To make the roads safer we need to start with a danger reduction approach, which means reducing danger at source. The point of the tweet was to point out that we finally have a transport minster who is not following the Taliban approach to road safety and does not feel that he has to set an example by wearing hi-vis and a helmet to be photographed. Instead, for cycling occasions he is always photographed in normal clothes for press photo shoots, even when some around him choose to do otherwise.

More tweets followed from a number of people, suggesting that I was in some way “anti-Lycra”, and was in some way blaming people in lycra for putting off others. This is where trying to discuss issues on Twitter can get very confused, sometimes it can be very hard to make a nuanced point in 140 characters. My comment above was very much about the use of images and the message which such images can send. There were also comments from other about infrastructure being more important that clothing, but in many ways the two are interlinked.

Why is clothing important in normalising cycling? Ask anyone in the fashion industry and they will tell you that clothes speak volumes about who you are and how you feel. In places where cycling is a normal means of getting from A to B, people just ride in ordinary clothes. They don’t get dressed up to ride a bicycle, unless they are doing so to ride for sport (there is also a misunderstanding about Danish “cycle chic”, Copenhageners don’t dress up to ride a bike, that’s just normal dress for them). In the UK some people seem to believe that it is necessary to dress in a certain way in order to ride a bicycle, for what ever reason. Part of this is to do with something I refer to as the Taliban approach to road safety, the failed idea that making people dress in a particular way makes the roads safer – it doesn’t. Indeed, the promotion of hi-viz and helmets can create a barrier to cycling. Added to this, the motor lobby is always keen to promote the use of hi-viz and helmets, as a means of transferring blame to the victim, and to avoid liability.

Does this mean that we should all start to ride in ordinary clothes as a political statement? No, of course not. There are those who will do so, but for most people the choice of cycle clothing is more about comfort, or more correctly, comfort and fear. Before I moved to Aberdeen I had never felt the need to wear Hi-viz, but in Aberdeen I felt different, it was/is hostile to anyone cycling (or even walking). So I bought a yellow cycling jacket, which made me feel better, but made no real difference to the way I was treated. Drivers still treated me as if they couldn’t see me. Over time, I came to realise that in places like Aberdeen drivers simply don’t look for people cycling, as there are so few. Later I came to realise that bright lights were more effective for being seen in a hostile environment, but not a solution. Like bright clothing, they are a survival mechanism (the real solution is to change the road environment).

In places where there are more cyclists (and pedestrians), drivers are more likely to look out for those more vulnerable road users. However, that doesn’t automatically lead to greater safety or a feeling of safety, you only have to look at images from London to see that there is plenty of fear there. There is a flaw in the “safety in numbers” theory, the death rate on UK roads per Km walked or cycled is higher than in many other parts of Europe. In places where cycling is common, it is infrastructure and legal structure that make cycling (and walking) safe, and this is why you see people of all ages, wearing normal clothes, using bicycles as transport.

In the UK there is another thing going on, which has to do with group identity. This has led to the term MAMIL or “Middle Aged Men In Lycra”, and generally refers to male cyclists who treat travelling to work as an adventure sport. There are those who justify wearing Lycra for commuting on the grounds that they have to ride fast due to the distance of their commute. It is an interesting thing that the average cycle commuting distance in the UK is longer than on the Continent. This is probably because so many cycle commuters in the UK are keen cyclists and like to use their commutes as training rides. On the Continent, in places where cycling is seen as normal (something the 95% engage in, not just the 5%), the sort people who in the UK have 1-5 km journeys and would drive or take the bus, ride a bicycle instead. So there are a great deal more short journeys by bike. For longer distances, the Contintentals are more likely to travel by multimodal means, for example: cycling to the station to take a train, and then walking or using another bicycle at the other end, to get to their final destination. That is not to say that there aren’t people commuting distances of greater than 5 Km by bicycle in these countries, it is just that they are more likely to use an e-bike, so that they don’t arrive sweaty.

Is the MAMIL image a problem? I have been accused of being anti-Lycra or even anti-cycling for using the term MAMIL. Neither is true, there is a place for Lycra and it fine in its place. However, it can be a barrier to making cycling more inclusive, as it can put people off, especially those not currently cycling. No doubt there are some cyclists who will say that the sort of people who are put off by MAMILs wouldn’t cycle anyway. However, if you go to a Women’s Cycle Forum and listen, you will find women saying that the perceived need for lycra, hi-viz and helmets does put them off cycling. A case study: L. is a woman over the age of 40 who says she is put off by the MAMIL image of cycling. However, on a trip to Bruges, L. was persuaded to try riding a bicycle because people of all ages, shapes and sizes were cycling in normal clothes. She now occasionally rides a bicycle in Edinburgh, and although L. is not a regular cyclist, she now has greater understanding of cycling, which is useful, given that her current job is in transport policy.

Before going any further, I will return to the point I made above, people should be free to wear whatever they feel is comfortable for their cycling journey. Images are important here, and where everyday cycling is being promoted, images which show hi-viz and helmets should be avoided. It is always disappointing to see organisations which soak up large amounts of funding, using images of people on bicycles dressed up in hi-viz and helmets. Generally, the majority of people are less likely to engage in an activity that looks like a minority activity, where you need to dress up in specific clothes and that may be dangerous. This makes trying to increase funding for active travel much harder, as it is seen to only benefit the few rather than the many. If you make cyclists look like a small outgroup, it going to be far, far harder to get those with the power to take space from motor vehicles to act. The Dutch didn’t get their famous cycle infrastructure by campaigning for “cyclists”, they did it for the children. Now that those children have grown up, they are the most relaxed parents in Europe, as they don’t have to worry about the safety of their children outwith the home. If we want the same here, we have to make active travel attractive and desirable, and we also have to make it normal and inclusive.

Cycle chic inspires others
Remember images are important

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Cyclists must help themselves?

Cyclists must help themselves?

Hardly a week goes by without another victim blaming letter to the papers, the latest was entitled Cyclists must help themselves (quoted below in full):

Wearing a helmet while cycling may be a “peripheral issue”, according to W Henderson (Promote cycling, not use of helmets, Letters, July 27).

However, surely it is highly desirable in urban traffic? We do not enjoy the excellent traffic segregation and social cohesion of “Denmark and The Netherlands”, nor are we ever likely to. The antiquated and cramped fabric of our towns and cities and our unwillingness to think, and spend, boldly – it’s the British way after all – have seen to that.

No-one disagrees that cycling is good for you and should be encouraged and funded more, but if the increasingly shrill cycling lobby insist on their right not to do everything reasonable to be seen and be safe, then “strict liability” – the proposal that in the event of a collision the motorist is presumed to be at fault – cannot be seriously entertained. In particular, the perverse refusal to use high-visibility accoutrements, good lights and a warning bell is unacceptable and stupid. Legislation is the only way.

 

I am saddened by the knee jerk victim blaming attitude expressed in this letter. Repeated studies have failed to find evidence that wearing “Hi-visibility” clothing make any significant difference to the frequency of cyclist or pedestrian road casualties. It is important to note that the UK has one of the worst records in Europe for pedestrian safety. Before anyone said that the numbers of pedestrians killed or seriously injured on our roads is declining, this is entirely due to the fact that people are walking less, once that is taken in to account pedestrian KSI rates are rising.

The evidence from repeated studies of collisions involving motor vehicles and vulnerable road users, that in over 85% of cases it was the drivers that was solely at fault. In under 15% of cases was there joint liability between drivers and vulnerable road users, and in only about 1% of cases was the vulnerable road user solely at fault for the collision.

It really is time that we learned from other countries that there is a better way. All but five countries in Europe (those being the UK, Cyprus, Malta, Romania and Ireland) have some form of “strict liability”. Why is it that the opponents of the current campaign for introduction presumed liability in Scots civil law, are not holding up Romania as a beacon of freedom and liberty?

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“Motorists and cyclists should both live up to their responsibilities” a reply

“Motorists and cyclists should both live up to their responsibilities” a reply

The following letter was published in The Herald on Monday 28 July 2014 from a Mr Stewart of Cumbernauld:

I NOTE with interest your report on the sentencing of drivers convicted of killing cyclists (“Motorists who kill cyclists let off lightly“, The Herald, July 22.)

Whilst many of us would agree that sentences for a wide spectrum of offences are inadequate, a figure in the article represent what might be expected: in 54 per cent of cases where a cyclist was killed by a motorist, the driver was charged. Simple statistics would predict a 50/50 ratio of culpability where two individuals were involved; that is, a cyclist and a driver. The law would take its course after an individual was charged and the result would depend on the evidence given in court.

In the article Chris Boardman was quoted as saying “our legal system doesn’t support fully enough the more vulnerable road user and it doesn’t reflect the responsibility people have when they drive a car”. Road users could be said to be more responsible than cyclists in that they have to pass a rigorous driving test and carry third-party insurance. We would all agree that this does not guarantee responsibility, but it is a grounding.

Cyclists, however, are largely not insured and do not have to pass a test of any sort. I can vouch as a driver that many cyclists do not respect, assuming they have read, the Highway Code. Some may have personal accident insurance but what about third party insurance? Can someone tell me why both insurance and a test are not mandatory for cyclists? They, after all, are road users who can err and cause an accident.

Of course cyclists are more vulnerable; what may be a simple bump between cars can easily mean a death where a cyclist is involved. There is equal onus on both to be careful and to abide by the Highway Code. Cyclists freely undercut motorists between vehicles and the kerb. This is one of the major causes of accidents and should not be allowed – except, of course, where there is a cycle lane.

Drivers have a horn, the purpose of which is to let other road users know you are there in circumstance where another may be unaware. In my experience many cyclists do not have a bell and if they do they do not use it appropriately. A bell is not adequate to alert other drivers.

There has been comment recently about presumed liability of drivers involved in cycling accidents, where there is inconclusive evidence. There should be presumed liability of all parties until the evidence or lack of it indicates otherwise, and to prejudice drivers is wrong.

 

This letter is wrong on so many points, but does tell us something about the attitudes which has lead to the lack of justice for vulnerable road users. The first error is the statement that “Simple statistics would predict a 50/50 ratio of culpability where two individuals were involved; that is, a cyclist and a driver”. This statement suggest that both are equally vulnerable which is clearly not the case and there is no evidence to support it. When was the last time you heard of a driver being harmed when in collision with a cyclist or pedestrian? There have been a number of research studies which have shown that in over 80% of cases the driver is wholly responsible for collisions with more vulnerable road users. In less than 20% of cases is there construable negligence by the cyclist or pedestrian, and even in these cases in less than 1% was the cyclist or pedestrian shown to wholly responsible.

Then we have the “cyclists don’t have to take a test and have third party insurance” argument, no consideration as to why that is. The reason the people are required to hold a licence, take a test and has compulsory insurance is because driving is funereally dangerous. That is not to say that cycling is completely safe, on rare occasions pedestrians are killed by cyclists, however, these cases account for only 0.4% of all fatal collision and in all cased the cyclists were prosecuted.

The reason that cyclists don’t have to take a test and have insurance, is because they do very little harm. This can be seen in the premiums which cyclist who do have third party insurance. Members of British Cycling and the CTC have 3rd party insurance cover up to £10m as part of their membership, which cost just £24 or £41 annual respectively. Also a number of household insurance policies offer similar levels of third party cover as part of the bundle, this show clearly that actuaries in the insurance industry believe that cycling poses very little risk to other.

On the other hand the cost of collisions involving motor vehicles in the exceeds £18bn every year. Therefore, society recognises that large, heavy objects travelling at high speeds represent a high degree of danger, and in an attempt to mitigate this all people wishes to use a motor vehicles in public places are required to have compulsory insurance. We are all human and prone to human error, the difference between someone in control of a bicycle weighing <15 Kg and a motor vehicle weighing>1 tonne, is the scale of damage which can be done to others.

While I am about it I might as well deal with the other common comment that cyclists are a danger to other because they ride on pavements and jump red lights. An analysis of police data involving collisions with pedestrians shows that 4% of injuries to pedestrians at red lights were attributed to cyclists, with 96% being attributed to motorists. The same report found that only 2% of injuries to pedestrians on the pavement could be attributed to cyclists, the other 98% were caused directly by motorists.

Then we have statement that “one of the major causes of accidents” is cyclists filtering through traffic, however, there no evidence to support this claim. There are large proportion of collision leading to death or serious injury which take at road junctions, but analysis of police data show that in almost 90% of case the motorist was at fault. Further more the only thing that the Highway Code has to say about filtering through slow-moving traffic, is “take care and keep your speed low” (Rule 88). Also, Rule 211 which tells motorists to “look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”

Finally there is a comment about presumed liability in where he suggests it should be presumed all parties should be equally liable, this is patently wrong, as I have shown above all road users are not equal and vulnerable road users need to be protected by the law. The UK is one of only five countries in Europe which does not have some form of Presumed Liability, the others being Cyprus, Malta, Romania and Ireland. Why aren’t those who oppose the introduction of Presumed Liability pointing to Romania as a shining beacon of liberty and freedom?

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In support of Motion S4M-07934 on Strict Liability

In support of Motion S4M-07934 on Strict Liability

OK so its not the snappiest of titles, but this post has a serious point, I have long been in favour of a law of stricter liability being included in the Scottish legal code. When Brenda Mitchell started her campaign for stricter liability I welcomed it on this blog. Now Alison Johnstone MSP has introduced a motion to the Scottish Parliament (Motion S4M-07934) calling for debate on a stricter liability. In order trying and encourage other MSPs to sign the motion I sent them the following letter:

I am writing to you to ask you to support Motion S4M-07934.

In a civilised country the function of the law should be to protect the vulnerable, currently in Scotland we situation on the roads where bulling of vulnerable road users is endemic. With the recent release of the 2012 statistics for reported road casualties in Scotland showed that the number of cycling deaths increased by 22% and pedestrian deaths increased by 33%. It is worth noting that while there may have been a small rise in the number of people cycling, about 2%, walking as a means of transport is continuing to decline. Therefore, it is clear that the current laws are failing to protect vulnerable road users. For this reason I ask you to support Motion S4M-07934. The introduction of stricter liability would bring Scotland into line with other European countries which have far higher levels of active travel and lower death rates for vulnerable road users.

Obviously stricter liability by its self is not going to be enough to bring about a safer environment, but it is an important part of the package. Scotland should be looking towards a sustainable safety approach, and consider a “Vision Zero” policy that requires that fatalities and serious injuries are reduced to zero by 2030, as an increasing number of countries around the world are doing. Let make Scotland a better place to live.

Yours sincerely,

Kim Harding, BSc, MPhil

 

I will of course up date this post with their replies (should they respond) as I receive them. I would urge others to write to their MSPs to ask them to support this motion.

Replies in the order which they have arrived:-

Neil Findlay MSP:

Neil has asked me to thank you for your email and to let you know that he is a member of the Cross Party Group on Cycling and has an interest in this issue.

Neil hopes to attend the debate, parliamentary business permitting.

 

Sarah Boyack MSP:

Thank you for your email on your support for Alison Johnstone MSP’s forthcoming debate in the Scottish Parliament and the information you have provided, setting out your position.

On behalf of the Lothian Labour team, I hope that it will prove helpful that as the Deputy Convenor of the Cross Party Group on Cycling I have an active interest and I will be there on the 29th and intend to take part in the proceedings that afternoon.

 

Kezia Dugdale MSP:

Kezia would like to thank you for taking the time to write to her on this issued.

Kezia has signed this motion and is looking forward to the debate tomorrow afternoon.

Kezia and the Scottish Labour Party remained open minded to the proposal and she looks forward to sharing your views in tomorrow’s debate.

 

Notably, Marco Biagi MSP, Gavin Brown MSP, Cameron Buchanan MSP and Margo MacDonald MSP, didn’t bothered to reply or even acknowledge my e-mail.

The motion was debated on the 29th October 2013, a full transcript can be found here. It shows a range of social attitudes, the usual dribble about cyclists on the pavements (make the roads safer and people won’t feel the need to cycle on the pavements, on the mainland of Europe this is not an issue), a certain amount of macho bullshit someone who famously failed to complete the 2012 Pedal of Scotland ride (even though 5 year old did), and an interesting number of comments on the need for more and better quality cycle infrastructure.

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