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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.

And finally…

And finally…

Following on from my last post after five years the on street cycle storage (Cycle-Works Streetstores since you ask) has finally arrived and so I have the first set of keys.

Cycle store in use

It was interesting standing in the street talking about the cycle storage with a council officer and seeing the number of people coming up and asking how they could get a key. Apparently there is already a waiting list of places, even though many of the people living in the street don’t even know what the cycle storage are as they have not seen them opened before. I get the distinct feeling there will soon be demand for more!

Cycle parking, things are finally moving on…

Cycle parking, things are finally moving on…

Just over five years ago (in September 2009) I wrote a blog post “Cycle parking, please can we have more…” in which I talked about the problems with lack of secure bicycle parking in Edinburgh. I flagged up issues the particular problems for tenement dwellers in Edinburgh, where storage is often a very real problem (as it is across most Scottish cities), added to which people living in tenement areas are less likely to own a car.

Three years ago things were looking positive as there where the first glimmerings of hope that something might actually be happening. There had been an announcement that City of Edinburgh Council (CEC) has proposed a Pilot of on-street residential cycle parking. I was one of the first to put in an application and waited with bated breath, well almost. As the closing date for application was December 2011, it seemed reasonable to expect that here might be something on the ground by the summer of 2012. In early May a letter arrived inviting all those who had applied to be a part of the trial parking project to a site meeting to consult on how it might work in practice. So it was that my self and one of my neighbours met with a number of officials, including the CEC’s cycling officer (Chris Brace), a CEC Project Engineer (Scott Mannion), one of the environmental manager (David Doig) and LBP Crime Prevention Officer (Carol Menzies). We had a wide ranging discussion, as we stood in the spring sun shine, covering all aspects of how that cycle parking (and its location) could affect the street, from accessibility to security, from refuse collection to turning space, and more. The meeting ended with a general consensus that the best location for the cycle storage was at the southern end of the street on the west side, on an area of concrete pavement which is currently just dead ground. It felt like something was really about to happen after two years of campaigning and lobbying, finally we were getting what was needed.

For a couple of months nothing happened, no information, nothing. In late July 2012 a letter arrived saying that the council was going to hold a written consultation for all residents in the street. A number of my neighbours came to ask me about this as they wanted to know more about the proposal, everyone I knew who lived in the street was in favour of the idea of having a secure cycle parking facility (even those who owned cars and those who didn’t own a bicycle). The written consultation was than followed with a series door to door interviews, and it was beginning to feel like someone at the Council was doing all they could to find an objector, so that they could stop the scheme (maybe I am being too cynical here).

Following all this consultation things went quite again until late June 2013 when another written consultation arrived, this time with plans showing the proposed location of the cycle storage on the opposite side of the street from that which residents said they wanted in the earlier consultation. I am told that there eleven responses to this consultation, all in favour of having the cycle storage on street and three saying explicitly that it should be on the far side of the street (the other made no comment on the location). One wonders why it is felt necessary to have quite to much “consultation” when they don’t bother to take notice of what the people who are going to live with the infrastructure actually have to say. It strikes me that a large amount of public money is wasted in this way.

Move forward to June 2014 and the City Council break their radio silence again with a letter to say that three different types of secure on street cycle storage across five locations across the city. The three types of storage chosen were the Cyclehoop Fietshangar, Cycle-Works Velo-Box lockers and Cycle-Works Streetstores (the latter a somewhat experimental design to judge by their website where there are several different prototype designs shown). The letter went on to say that the installation would be completed by the end of July 2014.

By this time I was starting to feel I would only believe when I saw it, so you can imagine my surprise and delight when I was told of shiny new Cyclehoop Fietshangars had been sighted in the city!

On street cycle storage in Edinburgh ©EdinburghCycleChic

Then came the news that Cycle-Works Velo-Safe lockers had also been sighted.

On street cycle storage in Edinburgh ©EdinburghCycleChic

On street cycle storage in Edinburgh ©EdinburghCycleChic

This was real progress at last! But wait where were the Cycle-Works Streetstores? There was no sign of them anywhere and again silence from the City Council, after some prompting there was a few vague comments that they were coming soon. July turned to August, the Festival came and went, September, still nothing, then finally in October Streetstores were sighted for the first time!

On street cycle storage in Edinburgh ©EdinburghCycleChic

How does the scheme actually work? Now there’s a question I keep getting asked, well, places in the cycle storage is offered to first to residents living within 100m of the stores. Only two places per flat are allowed per flat (which is rather unfair on students living in Houses in Multiple Occupation or HMOs) and place are allocated on a first come first serve basis. Each person gets a gets an individual contract and must give the details of the bicycle they are intending to store. The contract also states that the storage can only be used to store “a security-tagged bicycle belonging to or in the care of the member”, later in the contract it talks of bicycles with a permit and displaying a permit sticker.

As to costs and pricing, the contract states that “during the period of the Scheme the Council will not make a charge for participation in the Scheme. The Council may bring the pilot Scheme to an end on giving 14 days’ notice to the Members, and thereafter charge the Member for continued participation in a new scheme and take a deposit for the access key”. Nowhere, in the contract does it give any indication of how long the pilot Scheme will run for, nor is there any mention of how much the charge might be in the future. Elsewhere, it has been stated that the “cycle parking would be … trialled for around 2 years“. Also “It is expected that there would be a charge of around £5 per month per user for the use of the covered storage options to help cover running costs”. This would mean that it would cost £60 a year to park a bicycle compared with £31.50 to park low emission car in the same permit zone. When you bear in mind that ten bicycles can be accommodated in the space required for one car, this seems rather excessive, no doubt the Council will say that this reflects cost of maintaining the cycle storage, whilst blithe ignoring the costs involved in controlling car parking in the city. If the council are to introduce such a high charge for cycle parking, then it would only be reasonable that all subsidies for car parking be dropped and that the cost of car parking be brought up to a matching level.

 

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?

“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?

Pedal on Parliament II, launched

Pedal on Parliament II, launched

While I was away skiing in Austria Pedal on Parliament 2 was officially launched with this video:

This year Pedal on Parliament is going to be bigger and better than ever, make a note in your diary to be on the Meadows in Edinburgh at 15:00 on Saturday the 18th of May 2013 and make sure you are there to be a part of history. Together we can make Scotland a cycle friendly Nation!

Pedal on Parliament, let’s do it again

Pedal on Parliament, let’s do it again

Last year I got involved in an event which turned out to be far bigger than any of us expected – the first Pedal on Parliament. Ever since, people have been asking if we could do it again. Well, the answer is yes! There will be a Pedal on Parliament II, on the 18th May 2013, and this time it is going to be even bigger and better.

Why is this important? Last year 3,000 people turned out to join the ride, and this has had a real impact in moving cycling up the political agenda,and not just cycling but active travel in general. This is where Pedal on Parliament is different, we are not just another cycling group, we have always said that we want to make the roads safer for everyone. When our eight point manifesto is fully implemented, Scotland will be a better place for everyone. As Alistair Gray put it, Work as if you are in the early days of a better nation. So the clock is ticking, tell all your friends to be there, come and be a part of Pedal on Parliament II and we will make Scotland a cycle friendly Nation.

Dutch cycle infrastructure and what we can learn

Dutch cycle infrastructure and what we can learn

As readers of this blog will know, I have had an interest in how to get more people to use bicycles as transport for some time now. So when I saw this film on the subject I knew it was something which I had to put on my blog.

The key lessons I take from this film are that a conscientious choice needs to be made for safe roads for all. This needs to be backed up with very deliberate decisions on design, policy and education, as “there is no better bang for the buck than investing in bicycling”. However, as I have pointed out before, the Dutch didn’t get their bike lanes without a struggle, and that is why we need to keep up the pressure for change. So, there will be another Pedal on Parliament, and change will come.

How much space should you give a cyclist when overtaking?

How much space should you give a cyclist when overtaking?

Some time back I wrote a post called Give cyclists room. I have noticed over the following years that this post gets regular traffic, from people coming with search terms such as “How much space should you give a cyclist when overtaking?”. So I thought, as an ex-driving instructor and a regular cyclist, this would be a subject worth revisiting.

Let’s start with the basics, as a driver you should first ask your self two questions before overtaking: “Do I need to overtake?” and then “Do I really need to overtake?” Many drivers don’t seem to have the ability to consider their journey as a whole, instead they merely concentrate on the next 100 metres of road (if that much). Let’s be realistic, yes that cyclist might be going slower than you, but is it really worth putting their life at risk to get to end of that queue of stationary traffic waiting at a red light 10 seconds earlier? Most of the time the cyclist will probably catch up, pass you while you are sitting waiting for the lights to change, so what have you gained?

Likewise, on a rural road that group of cyclists might only be travelling at 20 mph and you may have to wait behind them for a mile before you can find a safe place to pass them. But in terms of your overall journey time, it will probably delay you by less than a couple of minutes. Therefore, unless your journey is genuinely part of a life and death emergency, there is probably no real need to overtake at all. They have just as much right to use the road as you do, and yes they are allowed to ride two abreast. When riding as a group, it is generally safer for all concerned if cyclists ride two abreast than than be strung out in a long line. If the road is clear and it is safe to overtake, then treat them as if you were overtaking a large vehicle which can not move out of your way.

Having decided that you are going to overtake, it is very important that you make make sure that:

  • the road ahead is sufficiently clear
  • other road users are not about to overtake you, and that
  • there is a suitable gap in front of the road user you plan to overtake

This is all laid out in Rule 162 of the Highway Code, which then goes on to say in Rule 163 “Overtake only when it is safe and legal to do so. You should: … give motorcyclists, cyclists and horse riders at least as much room as you would when overtaking a car”

Give vulnerable road users space

This is followed up in Rule 212 which states “When passing motorcyclists and cyclists, give them plenty of room (see Rules 162-167). If they look over their shoulder, it could mean that they intend to pull out, turn right or change direction. Give them time and space to do so.” So the advice in the Highway Code is clear. However, it is just that, advice, the Highway Code only tells drivers that they should give vulnerable road users space on the roads, not that they must. This is an important distinction, because where the Highway Code uses the word must, it is indicating the Rule is a legal requirement and there is a penalty if the Rule is disobeyed. Where the word should is used, failure to comply with the Rule “will not, in itself, cause a person to be prosecuted, but may be used in evidence in court proceedings to establish liability”. It is perhaps unfortunate that the Highway Code isn’t a bit firmer on this, but this is what we have, unless Parliament can be persuaded to change it.

Many drivers consider themselves “good drivers”, some even consider themselves to be “advanced drivers”. However, before we go any further, I would like to make it absolutely clear that driving fast or simply being a member of the “Institute of Advanced Motorists”, does not make you in any way an advanced driver (although some advanced drivers may do these things). Advanced Driving is about recognising hazards in good time and responding to them appropriately, which generally means slowing down. Rather than trying to explain how this would work in real life situations, I have found these videos which show clearly how it should be done.


At the end of the day, it is important to remember that roads are not for cars, but are for people, however they choose to travel. Holding a driving licence confers on the driver no more right to the road than that of any other road user, but does permit them to operate potentially lethal machinery in a public space. This is a privilege and not a right, and one that comes with responsibilities.

Addendum: This post was accidentally lost and recreated from Google’s cache.

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High-viz vests a must for cyclists?

High-viz vests a must for cyclists?

There was a letter in today’s Herald on “High-viz vests a must for cyclists” which went as follows:

There has been much debate recently about cycling safety, almost entirely about helmets, but I an amazed at the lack of emphasis on visibility.

Few will argue that helmets are not a good idea, but all roadway users – cyclists, walkers and runners – should be obliged to wear high-viz vests.

Given the impossibility of dramatically improving our old urban infrastructure and winding country roads to anything like the standard of the Danes or the Dutch, cyclists who perversely choose dull or black clothing or ride without lights are endangering themselves and others.

The law should be changed to make high-viz mandatory and the Scottish Government could win praise for common sense by handing out the vests free (buying them in big numbers will bring the cost down to pennies each).

Then the police will have no excuse for continuing to ignore the current cycling anarchy, which is set to become much worse as the popularity of the sport explodes post-Olympics.

David Roche,

1 Alder Grove,

Scone.

 

I felt this was so misanthropic I had to reply. I have reproduced my letter to the Editor here (just in case it doesn’t get published in The Herald):

Dear Editor,

I was saddened to read David Roche’s letter of the 8th Aug, while no doubt Mr Roche is well meaning, he is badly misinformed in so many ways.

His first assertion is that “Few will argue that helmets are not a good idea”, evidently he has never read the letters section of the British Medical Journal where there was a lengthy debate about the value of cycle helmets. Most of the correspondents with a public health background were against the promotion of cycle helmets as the overall effect on public health has been shown to be negative. Also the scientific literature has shown that high rates of helmet wearing in countries such as Australia and New Zealand, have not led to any significant reduction in serious injuries to cyclists. There are an increasingly large numbers of people who argue that the compulsory use of cycle helmets is a very bad idea.

There is no evidence that making cyclists and pedestrians wear Hi-viz reduces the prevalence of collisions on the roads. No amount of high visibility clothing can make drivers look and pay full attention to the road environment. Making people wear Hi-viz will have no positive effect and would simply alienate a large section of the population. We are all pedestrians at some stage. It would be far better to change our road environment to make it safer for all, applying the Dutch principles of Sustainable Safety (“Duurzaam veilig” in Dutch). It is notable that pedestrians and cyclists in the Netherlands are eight times less likely to be killed or seriously injured in road “accidents” (per Km travelled) than people in the UK. Let us not forget that the cost to the NHS from people involved in road collisions is in excess of £10Bn annually.

Mr Roche then asserts that it is impossible to improve our infrastructure to Dutch or Danish standards, on the grounds that we have country roads and old urban areas. I am sure that it would come as a great surprise to the Dutch and Danish people that their countries do not have country roads and old urban areas! It should also be noted that virtually all of their excellent cycling infrastructure was developed after 1980, there is no reason why we can not do the same. Nor does it have to take 30 years to achieve. We don’t need to experiment to find out what works, the Dutch have already done that for us! All we need to do is follow the lead of the Americans and import Dutch expertise and adapt it to local conditions. Many measures, such as reducing speed and volume of motor traffic can be applied quickly and cheaply, to the benefit of the whole population. There is demand for such measures, as shown by the 3,000 people who Pedalled on Parliament in April.

I for one would welcome a reduction of the Mr Toads on the roads, who take the approach that it is for everyone else to keep out of their way. Instead we should follow the Swedish “Vision Zero” policy that requires that fatalities and serious injurious are reduced to zero by 2020.

Kim Harding

Addendum: My letter above didn’t get published, for some reason, but this one from Ewan Grant (which is rather more pithy) did.

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