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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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Do cyclists really need more insurance?

Do cyclists really need more insurance?

From time to time I get e-mails from PR people asking me to write something on this blog. Recently the same e-mail from a PR person (working on behalf of a firm of insurance brokers) has arrived in my in-box from several different directions, evidently several people felt that I might like to write something about it. So what were the contents of this e-mail? Just in case you are interested, here it is:

Hi,

With the relationship between motorists and cyclists often being reported as at boiling point, Policy Expert [a firm of insurance brokers] has just published the results of a survey into differing attitudes between the two – with some surprising results.

Cyclists fared well in the survey overall, with 15% of motorists saying they wished there were more cyclists on the roads, and a further 30% considering them completely harmless.

Perhaps more surprisingly, the survey also found that 35% of cyclists believe they should have insurance to be allowed to cycle on the road, and a third of cyclists would drink and bike, with 31% saying they would cycle after having two or more pints of beer or large glasses of wine.

These, and the rest of the findings are available here: [Link to insurance brokers website]

If you’d like to see the full survey results I’d be happy to send those across to you.

Thanks, let me know what you think.

So what do I think about it? Now, where do I start? Maybe with “the relationship between motorists and cyclists often being reported as at boiling point”. Is this really true? In the real world: No. The media like to play up idea of a “war” on Britain’s roads, but no such war exists. There is however there is a problem with a culture of bullying among a few reckless motorists, and the promotion of a casual disregard for the lives of others by the motor industry and its marketing agents.

Before going further, maybe I should make it clear that there are not two different species, one called “cyclists” and one called “motorists”. There are just people using the roads, everyone has a right to mobility, but there is no right to drive. As I have pointed out on this blog before, the operating of heavy and potentially dangerous machinery in a public place is an activity which is only permitted under licence, and with that licence come responsibilities, something I will come back to later.

Having visited the Policy Expert website and looked at the blog post “Motorists vs cyclists – The Results!”, I wasn’t clear on what exactly the point of this survey of their customers was, I can only assume that is was to find a way to draw attention to their insurance brokering service by suggesting that people need to buy more insurance.

You will notice that I am not linking to the site. This is because I have no desire to give them free advertising or increase their search engine optimisation (if you want to find it, there is enough information provided above to search for it). But having been invited to give my thoughts on the survey, I intend to do so.

According to the PR person: “Cyclists fared well in the survey overall, with 15% of motorists saying they wished there were more cyclists on the roads, and a further 30% considering them completely harmless”. What is that supposed to mean? Let’s just look at a few facts here, on average 3,000 people are killed by badly driven motor vehicles on UK roads every year, whereas fewer than two are killed by recklessly ridden bicycles in an average year (and that’s two too many in my opinion). The simple truth is that cyclists do very little harm to others but motorists have the potential to do a great deal of harm to others (both directly and indirectly). It is the potential to do harm to others that caused Parliament to pass the Motor Car Act 1903, which introduced “the crime of reckless driving”, and imposed penalties. It also introduced the mandatory vehicle registration of all motorcars, and made it compulsory for drivers of motorcars to have a Driving Licence (although the driving test was not made compulsory until 1934). This Act was replaced by the Road Traffic Act of 1930, which in turn also introduced the driving offences – dangerous, reckless and careless driving and driving whilst being unfit and under the influence of drink or drugs (although it wasn’t until 1967 that an alcohol limit was set and testing brought in). The Act also brought in a requirement for compulsory third-party insurance for all motor vehicles driven on the public highway. The reason for these changes? The level of harm done to others by the drivers of motor vehicles. The first death caused by a motor vehicle in the UK occurred in 1896, but it wasn’t until 1926 that detailed records began to be collected (in that year there were 4,886 fatalities, bear in mind that there would only have been a handful of cars on the roads in 1926, compared with today).

However, the PR person tells me that “the survey also found that 35% of cyclists believe they should have insurance to be allowed to cycle on the road”. This is rather curious, why should cyclists be required to have insurance to be allowed to cycle on the road? As I have just pointed out, cyclists do very little harm to others, even the results of this survey suggests that they are “completely harmless”, so why would they need insurance to be on the roads? Well the PR person suggests that this is might be because “31% [of cyclists] saying they would cycle after having two or more pints of beer or large glasses of wine”. Um, so what? Would anyone suggest that people going to the pub and then walking home should have 3rd party insurance? Of course not.

Other findings on the “Motorists vs cyclists – The Results!” site include the admission by 16% of motorists surveyed that cyclists keep traffic levels down. This is at least a small positive, but then it goes on to talk about “road tax”, blithely ignoring the simple fact that Road Tax was abolished in 1936, and that Vehicle Excise Duty is a tax on pollution not on road use. The fact that they bring up this spurious rubbish shows two things, one: motorists have a dangerous and unwarranted sense of ownership of the roads (even when the Road Fund was in existence, 1920 -1936, the majority of the cost of road building and improvement came from general and local taxation) and two: that the people who carried out the survey haven’t bothered to do a bit of basic homework before carrying out the survey, so how can they call themselves “Experts”?

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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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The use of the roads and moral hazard

The use of the roads and moral hazard

This evening I will be attending the Road Share campaign for Strict Liability Parliamentary reception at the Scottish Parliament. Before doing so I though it a good idea to write a bit about use of the roads and moral hazard as a way of examining the concept of Strict Liability on the roads.

Imagine that you are walking along a pavement, a vehicle passes you, it kicks up a stone, which hits you and blinds you in one eye. Currently to gain compensation you must prove negligence, the driver is assumed to have done nothing wrong. Strict liability says that the possibility of kicking up a stone and blinding someone is an inherent risk of driving, the fact the driver chose to drive the car and put you at risk in that way means that they have accepted they will be held liable if that risk is realised. In the example above, this would be No-fault liability, which is defined as follows: “where a person is held responsible not for his failure to display the diligence of a reasonable man, but because he is in control of a source of danger to other people’s lives, health or property”

Strict Liability is not about criminal culpability, it is about civil liability. The concept of Strict Liability recognises that the driver is the one who has introduced the risk to the public space and they have done so for their own advantage, i.e. the person driving is benefitting from driving. Many drivers probably prefer not to see it that way, they prefer to focus on what they see as the high costs of driving. However, the perceived cost to the driver must be less than the benefit to themselves or they would leave the car behind and use another means of transport.

The driver accrues the benefits of driving but not all of the costs, many of those costs are externalised, and this includes an increased risk to other, more vulnerable road users. These road users do not benefit at all from a driver taking their car to the supermarket, but they do bear some of the risk. This can be seen as the moral hazard of driving.

The role of the law and justice system should be to attempt to rebalance the costs, so that if a driver does something risky they can be expected to bear the costs of this. Several methods are used: fines, removal of the licence to drive or finally imprisonment. However, these sanctions are not equal to the risk borne by other users. A driver is capable of killing a pedestrian, yet we do not expect the driver to be executed for doing so (nor should we).

All that Strict Liability does is recognise that if you wish to benefit from something but at the same time take risks at the expense of others, you should be prepared to pay up (or rather, your insurer should), if that risk is realised. Consequently strict liability isn’t limited to cars vs bicycles. It says the larger vehicle, the greater risk potential risk to others and therefore the greater the responsibility, leading to the following hierarchy: HGV > car > bicycle > pedestrian.

Strict Liability is reserved for “inherently dangerous” activities or products. A classic example would be that of a circus: If a lion escapes and injures a member of the audience, no matter how strong the lion’s cage was, or how closely the lion was watched, it is still the circus owner who would be held liable.

The reasoning behind Strict Liability is to hold whosoever benefits from putting others at risk – demolition, transporting hazardous materials, using dangerous machines, etc. – accountable for any damaged caused by that activity. It is not dissimilar to the duty of care owed by employers to their employees, the employer benefits most from putting the workers at risk, therefore the law believes they have a moral obligation to take all practicable steps to keep the workers safe. Yet another example of where the Health and Safety Executive is steps ahead of other branches of government.

A final thought, a form of Strict Liability already exists on our roads: where two motor vehicles are involved in a collision and the second vehicle runs into the back of the first (a rear end shunt). The driver of the second vehicle is automatically held to be liable (unless they can prove there were extenuating circumstances). It is only fair and reasonable that the same principle be extended to vulnerable roads user, as is already the case in the majority of other European countries.

This post was inspired by a blog post from lovelobicycles.

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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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