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Cycling is not dangerous – it’s bad driving

Cycling is not dangerous – it’s bad driving

In the past I have written a number of posts about Strict Liability, It is something which I strongly feel is important as evidence from cycling groups on the Continent show stricter liability to be an integral part of cycle safety, increasing mutual respect between motorists, cyclists and pedestrians. The UK is only one of a small number of EU countries, along with Cyprus, Malta, Romania and Ireland that does not operate a Strict Liability system for road users.

In 1982 Lord Denning stated that:

In the present state of motor traffic, I am persuaded the any civilized system of law should require, as a matter of principal, that the person who uses this dangerous instrument on the road – dealing death and destruction all round – should be liable to make compensation to anyone who is killed or injured in consequence of the use of it. There should be liability without proof of fault.

To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.

 

Thirty two years on this state of injustice remains on our roads, it is time for change!

Below is a press release sent on behalf of the Road Share Campaign for presumed liability, if you would like to show your support for introducing a member’s bill for presumed liability between motorists,cyclists and pedestrians please sign this petition.

New research says cycling is not dangerous; a minority of bad drivers are responsible for road traffic collisions.
 
Commissioned by Cycle Law Scotland (CLS), the legal firm behind the Road Share campaign for presumed liability on Scotland’s roads, the research compares case data with publicly available statistics to provide a greater understanding of the causes and severity of road traffic collisions.
 
CLS then asked its own community of cyclists about their own ‘near misses’ to help paint a clearer picture of cycling on today’s roads.
 
The research found that out of the 151 cases handled by CLS between June 2011 and August 2013, incidents were dominated by drivers’ incompetent turning manoeuvres. Almost half of the incidents were due to drivers turning off the road of travel, or pulling on to it, or U-turning. If roundabouts are added, the proportion rises to 61% of the CLS incidents. Further analysis of statistics from the Department of Transport (DfT) and City of Edinburgh Council revealed very similar patterns.
 
Cyclist actions were a minority factor making up about a third of the DfT study of urban casualties and less than a fifth in the data available from Transport Scotland.

According to official figures released by Transport Scotland, in 2012, there were 9 deaths, 167 serious injuries and 901 total accidents involving pedal cyclists.
 
Malcolm Wardlaw, who carried out the analysis of the all the data available concluded that the main risk of collision is at junction, at least on urban roads. At junctions, vehicles turning off the road of travel are just as much a risk as those pulling out from side roads.
 
The evening rush hour period incurs a higher risk to cyclists than the morning peak period.

He said:

Whilst most drivers are safe and courteous, one of the striking observations that can be drawn from the CLS and public data available is that most cyclist casualties in road traffic collisions are due to errors by drivers. Cyclists are primarily the victims of bad driving and inflict negligible harm on others.

 

Founder of Cycle Law Scotland, Brenda Mitchell has 25 years’ experience as a personal injuries lawyer. She said:

We constantly see cases where the driver blames the cyclist, but when it is put to the test, it is bad driving that is to blame. If we seriously want to make Scotland a cycle-friendly nation, we have to start by understanding that good driving standards are fundamental.
 
My strongly held belief is that if we introduce a system of presumed liability in civil law, drivers will change their mindset towards cyclists on the road.

 

Concerned by the findings, Cycle Law Scotland carried out a survey of cyclists experiencing “near misses”.
 
Its research found that of the 137 people questioned in December 2013, 70% reported having experienced a ‘near miss’ within the previous four weeks.
 
The most common scenario was found to have occurred when a vehicle passed too close and clipped the bike. Once again, the most ‘at risk’ period was the evening rush hour and on roads where the speed limit is below 30mph, with junctions and roundabouts highlighted as particular blackspots.
 
Brenda adds:

I am concerned that the degree of danger facing cyclists on Scotland’s roads is not sufficiently understood. Bad drivers are the exception, but they can cause serious injury.
 
I am a massive supporter of cycling and want the right safety measures put in place. But while we don’t have – or accept – the full picture of cycling conditions and risks on our roads, the safety measures will never be sufficient.

 

So far, more than 5,350 people have signed a petition to see the introduction of presumed liability regime into Scots Civil Law. If adopted, it will mean that following a collision between a motorist and a cyclist or pedestrian, the motorist would be presumed to be liable for injury, damages or loss, unless they can prove otherwise, thereby shifting the burden of proof from the vulnerable (as it is currently) to the powerful.
 
Key findings from Malcolm Wardlaw’s research into CLS and public data:

  • Most cyclist casualties in collisions are due to errors by drivers.
  • he main risk of collision is at junctions, at least on urban roads.
  • 83% of cyclists involved in collisions recorded by Cycle Law Scotland were male. This dataset matches the national profile of cycling participation. The National Travel Survey reports males account for 80% of distance travelled by bicycle in the UK.
  • In 66% of all cases recorded by Cycle Law Scotland’s data the cyclist was wearing a helmet.
  • At junctions, vehicles turning off the road of travel are just as much of a risk to cyclists as those pulling out from side roads.
  • 75% of the accidents recorded took place on roads with a speed limit of 20-30mph.
  • In 35% of Cycle Law Scotland’s cases the cyclist was wearing bright, hi vis, fluorescent, reflective, light, yellow, lights or bright clothing. 32% wore other clothing and 33% recorded no information about their clothing.
  • Cyclists and pedestrians inflict negligible harm on each other.

 

If you would like to show your support for the introduction of a member’s bill for presumed liability between motorists,cyclists and pedestrians, into the Scottish Parliament: please sign this petition

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Every Kilometre Cycled Benefits Society

Every Kilometre Cycled Benefits Society

We know that the health benefits to society from cycling outweigh negative impacts by up to a factor of 20. We know that cities with higher levels of cycling are more attractive places to live, work and do business. I have discussed before in this blog how to achieve this, it is not rocket science, as this recent report from the International Transport Forum at the OECD shows. They recommend reducing “urban road speeds to 30km/h [20 mph] or less, and the use of separated cycling infrastructure to increase the number of new cyclists. Attracting new cyclists gains the greatest health benefits through increased physical activity, including reducing risks linked to cardiovascular disease, obesity and Type-2 diabetes.”

So why aren’t we doing more to encourage cycling in Scotland? It’s one of the fundamental duties of any government to protect the lives of its citizens. However, here in Scotland, both national and local government drag their feet on these issues. I have sat across the table from the Scottish transport minister and asked him to use the powers which have been devolved to the Scottish Government, to lower the national speed limit in built up areas (defined as places where the street lighting columns are < 185 m apart) from the current limit of 30 mph to 20 mph. This is would at a stroke save lives. However, he has refused point blank to do so, saying that it would take away powers from Local Authorities (LAs). This argument is utter nonsense as LAs have the power to raise or lower speed limits on individual roads as they see fit. So the real effect on LAs would be that they would have to justify to the voters why they wanted to raise speed limits in built up areas, where people live, work and shop, from 20 mph to 30 mph. It is well known that 20 mph speed limits are popular with people who live next to the roads where these limits apply. Therefore, it may prove difficult for LAs to raise the limits, but that's Democracy for you. Here in Edinburgh, there has recently been an announcement from the City of Edinburgh Council that it intends to lower the 30 mph speed limit to 20 mph, across the whole city, but not until 2017. Why 2017? You may well ask, well for one thing, it is after the next local elections. Also it gives them three years in which to try and find justifications to maintain the higher 30 mph speed limit on “key arterial roads”, even though these pass through some of the most densely populated parts of the city.

Why are our elected representatives not acting in the best interests of the people? Why are they not taking simple steps to protect the health and lives of the citizens they are elected to represent? The only answer can be moral cowardice! For this reason I urge you all to join the Pedal on Parliament protest on the 26th April 2014 to send a message to those who have the power to change things – now is the time to grow a spine and show some moral backbone!

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Fairness and liability on the roads: part 3

Fairness and liability on the roads: part 3

Having written to my MSPs about Fairness and liability on the roads and received a number of replies, mostly along the lines of “I will forward the matter to my colleague Keith Brown, Minister for Transport, for his consideration”, I have been waiting for Mr Brown’s comments. Well, today my wait was ended by an e-mail from George Foulkes MSP, in which he forwarded to me a letter from the Minister for Transport and Infrastructure, Keith Brown MSP. I have transposed a copy below (with a couple of corrected URLs), if you would like to read the original it is here.

Thank you for your e-mail of 16 February to Stewart Stevenson MSP, on behalf of your constituent Kim Harding, regarding his concerns about compensation in road accident cases involving vulnerable road users.

As you may be aware the Scottish Government published the Cycling Action Plan for Scotland (CAPS) in June 2010. The overall vision for cycling is that “by 2020, 10% of all journeys taken in Scotland will be by bike”. The document outlines 17 separate actions to support cycling, working in partnership with key delivery agencies, including local authorities, Sustrans and Cycling Scotland. The full text of the CAPS document can be viewed on the Scottish Government website at: http://www.Scotland.gov.uklPublications/2010/064/25103912/0 [http://www.scotland.gov.uk/Publications/2010/06/25103912/0]

One of the CAPS actions relates to a legislative search by the Scottish Government on the operation of liability laws and how they work in other countries in Europe and around the world, and whether there is robust evidence of a directly link to levels of cycling and KSI’s [Killed or Seriously Injured]. This work will provide a comprehensive report on liability laws and how they affect cycling. A follow-up action contained in CAPS relates to identification of what kind of hierarchy, if any, might be established, and the consequent development of an educational awareness campaign for all road users. This work would be with a view to reducing the rate of cyclist KSls.

With regard to your constituent’s comments on the level of road casualty figures, you may be aware that Scotland’s Road Safety Framework to 2020 was published In June 2009. The Framework sets out Scotland’s vision and targets for the safety of all road users over the next decade together with a range of commitments to help the Scottish Government and its delivery partners meet the targets.

Reported Road Casualties Scotland 2009, published in November 2010, showed that we are making significant progress in reducing the number of pedestrian and cyclist casualties in Scotland with a fall of 42% and 21 % respectively between 1999 and 2009. However this does not mean we are complacent on this issue. The Framework recognises that pedestrians and cyclists are among the most vulnerable road users. We have made a number of commitments within the Framework document which we will undertake, with our partners, to support the interests of pedestrians and cyclists. These include ensuring that all road users receive appropriate education and training messages about cycling in the road environment; ensuring that cyclists are considered in new road and maintenance schemes; and encouraging local authorities to consider 20 mph zones in all residential areas. The Framework can be viewed on the Scottish Government website at: http://www.scotland.gov.uklPublications/2009/06/08103221 [http://www.scotland.gov.uk/Publications/2010/11/05111814/0]

The Annual Report 2010 on progress with the Framework, including measures undertaken to date to assist the needs of pedestrians and cyclists, can be viewed on the Transport Scotland website at: http://www.transportscotland.gov.uk/strategy-and-research/publications-and-consultations/road-safety-report-2010

I hope the information above helps when responding to your constituent.

It is an interesting reply which shows that the Scottish Government is at least trying to improve Scotland’s road safety record. Reading Skimming through these documents, I find that:

  • while car users account for 64% of all casualties, a greater proportion of pedestrian (and cycling) casualties were killed or seriously injured.
  • children make a disproportionate number of pedestrian and cycling casualties
  • Scotland’s Road Safety Framework to 2020 aims to reduce: all Fatalities by 40% (and child fatalities by 50%), all Serious casualties by 55% (and child serious casualties by 65%)
  • and the Scottish Government would like to see, by 2020, 10% of all journeys in Scotland made by bike.

Finally in CAPS I found what I was looking for, Section 5.5 A “Hierarchy of Care” for all Road Users, had the information which was most relevant to my original letter:

Current Situation

There is no legal hierarchy of care for road users in existence in the UK. In the event of a road traffic accident going to court in a civil action 1, which is a devolved area, the responsibility to prove negligence (on the balance of probabilities) lies with the pursuer, who has to prove a number of elements to satisfy the requirement that the defender was negligent and caused material harm ( e.g. damage to property or personal injury).

The background to the current situation may be traced to a Royal Commission on Civil Liability and Compensation for Personal Injury which, after a thorough 5-year inquiry, recommended in 1978 in favour of a no-fault insurance scheme for road traffic accidents but against the introduction of strict liability. A no-fault scheme did not subsequently materialise, but the rejection of strict liability did prevail. This has in essence, been UK policy ever since. As such, the previous UK Government felt it was unfair to make motorists automatically liable for any accidents involving motor vehicles and a pedestrian or a cyclist. They felt it was a matter for the courts and that each case should be dealt with individually.

Existing Laws in other countries

The differences in laws between the UK and continental European countries have often been cited by cyclists as the main reason cyclists on the continent enjoy greater protection. However, this has often been combined with a number of other measures such as increased investment in cycle infrastructure so it will be difficult to isolate one particular factor influencing why these countries have higher cycling levels than the UK.

The fact that many of these countries have promoted cycling for a longer time has quite possibly also led to a cultural change whereby cyclists are automatically respected because many drivers are also cyclists themselves. The multitude of factors in play means that it is difficult to identify driver behaviour as being influenced by any one of them. Furthermore, there appears to be jurisdictions where absolute liability exists rather than strict liability and this may have a harsher impact on driver behaviour.

Accident rates for cyclists are lower in many European countries than in the UK and strict liability is in place in several European countries including France, Spain and the Netherlands, whereby the driver involved in an incident would have to prove he or she was not at fault for an incident involving a cyclist. This has, anecdotally, led to drivers having more respect for cyclists.

Proposals

There has been a suggestion by some stakeholders to establish a hierarchy of care whereby the emphasis is on the vehicle travelling at the higher speed. This would then make cyclists liable for collisions with pedestrians and may help in addressing concerns drivers have about cyclists seemingly being able to ‘flout’ the law. Cyclists can however, already be held liable for injuries caused by negligence or malice on their part (since negligence laws cover everyone).

A second proposal, made by Spokes (the Lothians Cycling Group) in its evidence to the TICC Committee’s inquiry into active travel, is to place the burden of proof in an incident on the heavier vehicle.

To inform future evidence-based policy making, Ministers have indicated that more research would be welcome and, therefore, we will undertake the actions listed below. We believe the results of this review will be crucial to any future debate on this issue.

Action 12: To undertake a legislative search to reveal the operation of liability laws and how they work in other countries in Europe and around the world, and whether there is robust evidence of a direct link to levels of cycling and KSIs.

Outcome 12: A comprehensive report on liability laws and how they affect cycling.

Action 13: To try and identify what kind of hierarchy, if any, might be established and develop an educational awareness campaign for all road users.

Outcome 13: A reduction in the rate of cyclist KSIs.

So there are a couple of action points, which suggests that something is being done with regard to fairness and liability on the roads, but by whom? A quick check of Annex 1 shows that:

  • Action 12 is the responsibility of the Scottish Government, time frame 2010-2012
  • Action 13 is the responsibility of the Scottish Government and stakeholders, time frame 2010-2012.

How far does that get us? Well, while it is the responsibility of the Scottish Government to produce a report on how liability laws affect cycling by the end of 2012, it is also the responsibility of the Scottish Government and stakeholders, to identify what kind of hierarchy there should be and campaign for awareness by all road users, if Outcome 13 is ever going to be achieved. Who are these stakeholders? Well, as I see it, the stakeholders are in effect anyone who walks (lets not forget that pedestrians are as vulnerable as cyclists and would equally benefit from increased legal protection) or cycles on Scottish roads. As everyone who lives in (or visits) Scotland, is a pedestrian at some stage, we are all stakeholders and therefore have an interest in seeing that there is a clear hierarchy of liability on the roads, with those capable of doing the greatest harm having the greatest responsibility and therefore the greater liability.

We all have a responsibility to keep up the pressure on the Scottish Government to do the right thing.

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Fairness and liability on the roads: part 2

Fairness and liability on the roads: part 2

Having written to my Westminster MP about Fairness and liability on the roads and received a reply that justice is devolved to the jurisdiction of the Scottish Parliament. I decided to follow up with a similar letter to my MSPs. So far I have had a number of replies, mostly along the lines of “I will forward the matter to my colleague Keith Brown, Minister for Transport, for his consideration” and one “I have written to the Minister for Justice asking him to respond”. So far I have had response from neither Keith Brown or Kenny MacAskill, and I am not holding my breath in anticipation a response either. There were a couple of MSPs who didn’t bother to reply, so I won’t bother voting for them come May.

The most interesting reply so far has come from Robin Harper MSP (Scottish Green Party), he has suggested that I to lodge a petition with the Petitions Committee of the Scottish Parliament. This is something which I intend to look in to doing. Robin also suggested that this was something he would like to include in the Green Party manifesto. Well, Robin, if you are reading this, here are a few more manifesto suggestions

Addendum: Following my reply to Amoeba (see comments below), I noticed that in the Cycling Action Plan for Scotland has the following statement under the section labeled “Legal Powers“:

Liability Issues

In most Western European countries, the liability in any collision involving a motor vehicle and a cycle (or a pedestrian) lies with the driver of the vehicle, other than in the case of an adult cyclist who is shown to have been responsible for the accident. In the UK, this is not the case. As the majority of cycling accidents involve a motor vehicle, and given the vulnerability of cyclists and pedestrians, the Scottish Government will undertake to explore a “Hierarchy of Care for Road Users”. This consultation document is asking whether the liability should always lie with the vehicle driver, until proven otherwise.

Liability and insurance issues are a UK wide matter and if feedback from this consultation document highlighted a public desire to research this area further, the Scottish Government would undertake to write to the UK Government about this.

So there is some recognition that there is a problem, but there is a need to stiffen backbone of our elected representatives and push them to actually do something about it! I urge to to contact your elected representative and encourage them to stop being so spineless and do the right thing.

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Fairness and liability on the roads

Fairness and liability on the roads

As I have said before on this blog, I am in favour of the UK having a law of strict liability on the roads, so thought I should try and do something about it. This being a legal issue, I thought the best way forward would be to try lobbying my elected representative, who could in turn could lobbying the Government to change the law. Therefore I wrote the following letter and sent it by e-mail to Sheila Gilmore MP.

Dear Sheila Gilmore,

Could I please ask you to consider the fairness of this case?

When a car driver injures a pedestrian, the burden of proof is on the pedestrian for claiming compensation. It appears, our legal system does not favour the more vulnerable.

Car colliding with pedestrian or cyclist:

Hundreds of pedestrians and scores of cyclists are injured or killed by car drivers every year in the UK. The 2008 road casualty figures show that 332 pedestrians were killed in car/pedestrian collisions, and in car/cyclist collisions 52 cyclists were killed. In all 390 cases not one car driver was killed. Amongst pedestrians, cyclists and car drivers, it is clear that the car driver is the most likely party to inflict injury or death upon the others.

Cyclist colliding with pedestrian:

The 2008 road accident statistics by the Department for Transport show that one pedestrian was killed in a cyclist/pedestrian collision. It is clear when comparing pedestrians and cyclists, that the cyclist would be seen as the stronger party.

I find it very hard to understand that the burden of proof would be on the more vulnerable road user and not the one who is actually more likely to cause harm: inflicting pain and suffering through causing injury, or devastating families by causing death. All this does not seem fair to me.

If you think so too, could I please ask you to get in touch with the Minister for Transport, the Minister for Road Safety and your party colleagues on the Transport Select Committee. It would be much appreciated if you could highlight to them, that we should subscribe to a more civilised system that is favouring the vulnerable.

Liability should therefore be considered on a fair and proportionate basis to provide legal protection to the vulnerable road user. This could be achieved by establishing a hierarchy of care where the burden of proof would always be on the user of the heavier vehicle (the party more likely to cause injury or death). This would show commitment of this Government to its agenda of societal and social fairness.

This principle of proportionality described above is in place in all but five European countries. The UK being one of them; the other four are Ireland, Romania, Cyprus and Malta.

Looking forward to hearing from you.

Yours sincerely, etc.

Some weeks later I received the following reply:

Dear Kim,

Thank you for your email concerning the burden of proof in road traffic personal injury cases. I apologise for the delay in responding to your enquiry.

It is important to clarify from the outset that justice is devolved to the Scottish Parliament. I would strongly recommend also writing to your MSP who will be able to provide you with more information about the situation in Scotland.

However I can make some brief comments on the current situation in England and Wales.

It is a general principle of the law that the accuser has to prove that the incident in question occurred and that the accused behaved negligently. Thus you are correct to say that in road traffic personal injury cases in England and Wales, the burden of proof is on the victim to prove the other party was negligent.

There are however areas of the law that apply the standard of strict liability, whereby the burden of proof is reversed and the accused has to prove that the accuser behaved negligently. Strict liability applies where there is likely to be an imbalance in terms of responsibility and where there is an inherent danger.

Strict liability does not currently apply to road traffic personal injury cases. I am aware that some have argued that the law should be changed so that it does, as this might encourage drivers to be more aware of cyclists, injuries incurred by cyclists would drop, and more people would take up cycling as a result.

However I am also aware of counter-arguments that suggest such a change could have a negative impact on cycling. These stem from the fact that cyclists would be liable in collisions with pedestrians. As few cyclists have insurance, it is unlikely that awards to pedestrians would ever be met. The only way to ensure the law works effectively would be to compel cyclists to purchase insurance, which could in turn put people off cycling.

I am a keen cyclist myself and do not own a car. I am a member of the All Party Parliamentary Group for Cycling, and I wish to see cycling encouraged across the UK. It could be that the introduction of strict liability to protect certain classes of road user would assist in improving safety. I think this is a subject that would be worthy of detailed consideration. To this end I have forwarded your correspondence to the Chair of the Transport Select Committee. I will inform you when I receive a response.

You may wish to note that last April the previous Government introduced a new accelerated claims process for road traffic accidents for personal injury claims in England Wales. Although this did not change the law with respect to burden of proof, it did attempt to deliver fair compensation to the claimant as soon as possible at proportionate cost.

Yours sincerely

Sheila Gilmore MP

I find the counter-argument that a law of strict liability would deter cycling somewhat disingenuous, surely if you do harm to another you should be liable for any harm done. Besides, I like many others, do have 3rd party liability insurance as part of my household insurance.

So what lessons have I learned from this? Well first and foremost, before writing letters find out which parliament has jurisdiction over the area of law which you are trying to change. Also that if your elected representative is on your side, they will reply. Even if the “elected representative” is not on your side, it is worth reminding them that they work for you and not their parties corporate sponsors, although some of them have a habit of forgetting this. This is a habit which needs to be broken!

So I urge you to do the same, contact your elected representative and remind them that they work for you. If you would like to the use the letter I have laid out above as a template, please feel free to do so, but I would suggest adding in the precedents given in the addendum below. In the mean time I have to find out what is the current state of play with “strict liability” is in Scotland and lobby my elected representatives at Holyrood.

Addendum: since writing the above, it has come to my attention that the concept of strict liability is not entirely foreign to UK legal jurisdictions. It is already used, for example, to provide compensation for injuries to consumers from defective products, to employees from defective work equipment and to the general public from runaway animals. This precedent strengths the arguments given above.

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