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Onus should be on the cyclists?

Onus should be on the cyclists?

Following the death of yet another cyclist on Scotland roads I was deeply saddened to see the following letter in The Herald newspaper:

Onus should be on the cyclists
Tuesday 23 July 2013

ONCE again the strict liability law is being peddled with the aim of protecting cyclists and pedestrians (Agenda, The Herald, July 19).

The writer, Brenda Mitchell, states “our goal is to change the culture among road users”.

As a pedestrian and former cyclist I would suggest that rather than attempting to change the law and further burdening other road users the only culture that needs changing is that of the cyclist.

Among the initiatives they may consider adopting are wearing suitable clothing and protective equipment (for head and hands) and obeying the current motor traffic laws – and not riding upon the footpath.

Perhaps it is also time for legislators to require all cyclists to fit, and sound, a suitable warning device in order to alert unsuspecting pedestrians to their presence.

In short, the public at large would be better protected if cyclists obeyed the law as it stands rather than seeking to introduce legislation that would be nothing more than another impost upon the motoring public who, after all, already pay to use the road.

Ian F Mackay,

5 Smillie Place,

Kilmarnock.

 

Lets just take a closer look, Mr Mackay starts by asserting that he is a “pedestrian and former cyclist”. Why does he feel the need to do this? We are all pedestrians at some point, and why is he a “former cyclist”? Oddly he doesn’t tell us, he also doesn’t let us know whether or not he is a driver (although it is implied), again why? Could it be that he is embarrassed to admit to being a driver, when he goes on to complain about “further burdening other road users” before going on to suggest that the only problem is with cyclists. Which other road users would this be? Are pedestrians and horse riders going to feel that a strict liability law is going to burden them? Or would the more vulnerable users of public space feel that a law making the operators of dangerous and heavy machinery being used that space liable (under civil law) for their actions, giving the most vulnerable greater protection? After all, this has been shown to be effective in the workplace where there is a strict liability on employers to ensure safe working practices.

He suggests that cyclists “may consider adopting wearing suitable clothing and protective equipment (for head and hands)” – is this for the protection of other roads user? Or merely trying to pass the blame when cyclists are injured by negligent actions of other road users? To use the workplace analogy again, the use of “safety equipment” is not a substitute for operating potentially dangerous machinery in a safe manner.

Then comes “obeying the current motor traffic laws – and not riding upon the footpath”. Hum, are cyclists “motor traffic”? Certainly they are traffic, as are pedestrians (the origin of the word traffic is from the Arabic word taraffaqa, which means ‘to walk along slowly together’, only in the late 20th century did it become “to drive along slowly together”, we needn’t go into the origin of the word “jam”). However, according to Mr Mackay, it is the failure of cyclists to obey laws which is the cause of all the harm to roads users. This fails to explain why not a single one of the 54 pedestrians killed on Scotland’s roads last year were killed by a person riding bicycle, all where killed as a result of being hit by motor vehicles.

Next, we come to “Perhaps it is also time for legislators to require all cyclists to fit, and sound, a suitable warning device in order to alert unsuspecting pedestrians to their presence.” How exactly will this help to deal with the problem of 54 pedestrians killed on Scotland’s roads? Some of those were mown down by motor vehicles driven on the foot way, others killed while crossing the road at pedestrian crossings by motorists jumping the lights. Oh, but of course, Mr Mackay isn’t concerned with the real issue of people being killed or the roads being too dangerous for many people to ride a bike on. He has given no thought as to why shared use paths are over crowded and how we might go about dealing with this issue, such as making the roads safer and providing a fairer allocation of space to non-motorists. He is more worried that bad drivers might actually be held to account for the injuries and deaths they cause, which is what would happen if we were to “introduce legislation that would be nothing more than another impost upon the motoring public” (although the version I have proposed would also apply to cyclists).

Instead, according Mr Mackay bad driving is apparently OK and should continue to tolerated, on the grounds that “the motoring public who, after all, already pay to use the road.” So there we have it, we shouldn’t do anything to hold bad drivers to account, because they pay “road tax”. Of course there is a major flaw in this argument, there is no such thing as “road tax” , we all pay for the roads, and we should all have the right to be safe from harm by others whilst using those roads.

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Strict Liability and the Road Share campaign

Strict Liability and the Road Share campaign

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.

No_Strict_Liability_Map_reduced

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The Sacred Driving Licence

The Sacred Driving Licence

Today saw the launch of the “Decade of Action for Road Safety 2011-2020“. Never one to miss a photo opportunity, David Cameron had agreed to help launch the UN’s Decade of Action for Road Safety and managed to get Britain’s two Formula One racing drivers, Lewis Hamilton and Jenson Button, to join him. We also had the announcement from Transport Secretary Philip Hammond of the introduction of On-the-spot fines planned for careless driving, as part of the Strategic Framework for Road Safety. All of this sounds like the Government is keen to do something about reducing the damage done. The Framework clearly says that “Road deaths and injuries are a tragedy for all those affected. And as well as the terrible human cost, they impose a heavy economic burden.” This sounds all very well, but let’s just have a closer look:

First, why were two racing drivers at a photo call to promote “road safety”? Button has a number of convictions for speeding and Hamilton has been charged with speeding in the UK and reckless driving in Australia. Not good role models in a country where 40% of young drivers think there is nothing wrong with breaking the 30mph limit by 10mph or more.

Secondly, there is a major problem with the Strategic Framework for Road Safety in that its central theme is absolving the majority of those drivers from their responsibility for most of the danger on the roads. It does this by diverting attention onto the very worst drivers, but has no serious intention of dealing with these people either!

The new strategy says that, instead of drivers being taken to court for driving offences, police can fine careless drivers. Offenders will get a fine of at least £80 and three points on their licence. This is not about making the roads safer, it is about cutting costs, by avoiding taking people through the court system. It isn’t even intended as a deterrent. In a country where you can be fined £1,000 for dropping litter, why is it proposed that an activity which puts lives at risk should only attract a fine of £80? Why is there such a reluctance to deal with the issue of danger on our roads?

We all have the right to use the roads, on foot, riding a bicycle or riding a horse, there is no right to drive. Driving on the public road is a privilege only permitted by licence, this licence is granted under trust after passing a driving test. The driving test is there to ensure that drivers can drive to a safe minimum standard. It is well known that the majority of accidents collisions on our roads are caused by driver error. This is why there needs to be a clear hierarchy of liability, with those capable of causing the greatest harm taking a greater level of responsibility.

However, we have somehow allowed the situation to arise where the holding of a driving licence is increasingly being seen as a sacred right. There are hundreds of drivers on the roads with 12 penalty points. All too often drivers who have broken the law (and the trust placed in them when they received their driving licence) avoid a driving ban, by claiming such a ban would inconvenience them. The courts will not accept such a defence for any other form of criminal activity, car crashes have long been a greater killer of the young than violent crime, so why such a softly, softly approach to driving?

In this country you can legally hold a shotgun under licence, however if you were to accidentally discharge it over the heads of people in a public place, you would expect to lose your licence. No court would accept the defence that it was OK because no one was hurt, or that it was caused by a momentary lapse of concentration, or that you had been distracted by a phone call on your mobile, or that such a ban would cause you inconvenience. Before anyone complains that this is not a fair comparison, being hit by a motor vehicle is just as damaging as being shot, the level of kinetic energy is about the same. It doesn’t make a difference to the person who is killed or seriously injured, whether they were shot or hit with a motor vehicle, they are still dead or maimed either way. Drivers should never forget, cars can kill!

We have a situation where most people think that they are better than average drivers, but at the same time 40% of drivers feel that they would fail a driving test if they had to take it again tomorrow. Until we have a change of attitude, drivers will undoubtedly continue to blame everyone else on the roads but themselves.

Addendum:
Sadly the Secretary of State for Justice, Kenneth Clarke QC, MP, seems to be incapable of understanding the concept of dangerous driving. Apparently “ordinary dangerous driving” isn’t a serious problem, but then this is a man who doesn’t think all rapes are a crime. All rape is rape and all dangerous driving is dangerous, both destroy lives. I just wish Ken Clarke would stick to playing records on the radio and leave the serious stuff to people who understand the real world. My thanks to Joe Dunckley for the tip off.

More news has come to light, this time from Scotland, where at least 387 drivers have more than 12 points on their licence:

More news has come to light from Scotland where at least 387 drivers have more than 12 points on their licence

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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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