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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.

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?

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

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.

The real problems created with increasing liability for drivers?

The real problems created with increasing liability for drivers?

There has been a string of letters to the Herald newspaper on the subject of Strict Liability. These letters provide an interesting insight into social attitudes with regard to driving. It all started on 26th October, with a letter from Brenda Mitchell, founder of the Road Share campaign for stricter liability. It was written in response to the news that in 2012 there was a sharp rise in the numbers of vulnerable road users killed on Scotland’s roads (cyclist deaths increased by 22% and pedestrian deaths increased by 33%). She lays out how she sees strict liability working: “a motorist involved in a road traffic collision with a cyclist or pedestrian would be presumed liable in a civil law claim against them for damages. If the injured party is under 14, over 70 or disabled, then the driver would be deemed liable, with the opportunity open to them to establish part fault. The same would apply in cases where cyclists collide with pedestrians, thereby working to give the more vulnerable road users the protection they so desperately need but currently lack.”

The first reply to this letter comes on 28th October, from Norman Dryden, who suggests that “strict liability on the part of careless cyclists for pedestrians would be of little value”. His main argument is that “Strict liability of cyclists for pedestrians is of little real value unless backed by compulsory insurance and the display of visible, valid registration details“. I feel that this is a rather weak argument, as it is rare for pedestrians and cyclists to cause harm to other third parties, however the same is not true of motorists. Most of the countries in Europe have a Law of Strict Liability and yet none of them have require cyclists carry compulsory insurance, why should Scotland be different? From the comments below it is clear that Mr Dryden, does not agree with me, he is entitled to his opinions as am I to mine. As he points out below may people whether pedestrians or cyclists, will be covered by the occupiers and personal liability section of household contents insurance which covers all family members resident at the address for accidents they may cause as pedestrians or cyclists. Some may have other, more specific, insurance. This I feel rather undermines the argument of little value without compulsory insurance. I am not in any away attempting to defamatory and misrepresent anyone, I am meanly expressing my option and I have given a free right of reply.

[I have modified this post due to complaints from Mr Dryden who disliked my interpretation of his letter, see the comments below]

On 30th October there two letters, one from John Maxwell and the other from Iain Mann. Maxwell expresses the opinion that Dryden is right, there is no need for a change to the law, and that, if enacted, strict liability would “penalise the law abiding majority”. He then claims that strict liability would “stand on its head the age-old principle that a person is innocent until proven guilty”. Clearly he fails to understand the difference between liability and culpability. Strict liability only applies in civil cases where the ‘innocent until proven guilty’ principle does not typically apply. In fact, strict liability already operates in many aspects of civil law, such as workplace regulations, consumer protection legislation and the control of dangerous animals. So introducing strict liability on the roads would not deny anyone their human rights, as Mr Maxwell suggests. Mr Mann also conflates liability and culpability. He then has a rant, blaming cyclists for causing accidents by being on the road, before suggesting that roads are solely there for the use of motor vehicles, and that cyclists should be made to use the footway along with pedestrians.

1st November brings a letter from Mrs Patricia Rowan entitled “Small children cycling represent a real hazard”. In this letter she suggests that children should not be allowed to use the roads, as they pose a “real hazard” to motorists. Evidently she thinks that no child should travel without being strapped into the back of a car. It is this attitude that has led to Scotland’s children having the one of the worst road death rates (per Km walked) and highest obesity rates in Europe and the return of rickets. Clearly she feels the roads are only for cars and that adults have no duty of care towards children.

The following day there was a second letter by Brenda Mitchell, where she corrects the false assertions of Maxwell and Mann above. She points out that all “who drive with due care and attention and in accordance with the Highway Code” have “nothing to fear from a stricter or presumed liability regime”. Brenda then states that “by slowly chipping away at [the] misconception” she is “confident that the public will understand the merit of [introducing] stricter liability into Scots civil law to protect vulnerable road users.” I am sure that she is right about this. However, the next letter, on the same page, suggests there is much chipping away still to do. I feel the need to quote this letter, by J Napier, in full:

The blinkered and frankly, selfish, views of the cycling lobby never cease to amaze me. Campaigners are once again calling for more money – that will be taxpayers money of course – to be spent on their hobby, on the grounds that it improves health and helps reduce greenhouse gas emissions from the transport sector.

Cycling on our roads today is akin to bungee-jumping and far more dangerous. Just look at the accidents and casualties which are reported daily in the media. I cannot understand why schools, the Scottish Government and other agencies which ought to know better continue to encourage and support this most dangerous and unnecessary mode of transport, given the congested and totally inadequate state of our roads. Many safety experts argue that mixing traffic of very different sizes and speeds is a major cause of many accidents. Once our roads are fixed (and our cyclists are properly trained, licensed and insured), by all means encourage the sport. Until then recognise the dangers and advise accordingly.

The claimed reductions in greenhouse gas emissions is another misconception. How many litres of fuel and how many tons of greenhouse gas are produced daily by lines of vehicles having to slow down to a crawl – often for half a mile or more – before accelerating briskly to overtake a cyclist, only to find the manoeuvre has to be repeated a few yards further down the road? The only real winner seems to be the Treasury, which receives more tax from the unnecessary sale and consumption of extra fuel.

 

As a piece of satire this letter would be brilliant, sadly however, I get the feeling that Napier really believes that improving people’s health and reducing air pollution are a bad thing. Then there is the suggestion that anyone who travels be active means is only doing so as a hobby or sport, not as a legitimate means of transport to get to work or to go to the shops, and therefore, these people do not pay tax. Note that is “traffic of very different sizes and speeds” that is the cause of “accidents”, not people driving carelessly. Cycling (and for that matter, walking) is not inherently dangerous and for this reason there is no requirement to gain a licence or have compulsory third party insurance, whereas moving a vehicle weighing a ton or more in a public place is inherently dangerous, and it is for this reason there are laws in place to regulate the use of such vehicles. In the final paragraph we get to see clearly just what sort of driver he/she is, one who does not look ahead and plan their drive. Napier could learn a lot from this advice from a former driving instructor and advanced driver on how to overtake safely.

Today (4th November) there were another two letters, one from Roger Graham and the other from Bill Brown.

First we have Mr Graham tell us that he is a wonderful driver, as he managed to avoid hitting “a young cyclist”. Apparently this was because the cyclist was riding close to the kerb and fell off onto the pavement, but had the cyclist fallen the other way, then Graham would have hit him. For this reason Graham asserts that he should not be to blame if he ignores the advice given in the Highway Code on how much space is appropriate to give to other road users (see Rules 126, 162-167 & 212). We then get the “all cyclist jump red lights” canard, even though the evidence from police records and video studies shows that motorists are far more likely to jump red lights than cyclists, mainly as drivers of modern cars tend to feel invulnerable. Next we are told that roads are dangerous because they are for cars and not also for vulnerable road users, therefore cyclists should stay off the roads. Never mind that there is no right to drive, it is a privilege granted under licence. However, under Scots law we all have the right to walk, ride a bike or a horse as a means of transport. In Mr Brown’s letter, we are again told that it is the fault of the vulnerable road user for being on the roads, and that motorists have no duty of care to other people.

In my experience, motorists who think that cyclists are aggressive are invariably bad drivers, the thing most likely to cause vulnerable road users to react in an aggressive manner follows escaping from nearly being killed by the negligence of drivers who themselves are surrounded by a steel cage and who are often unaware that they have just nearly killed another person.

Herein lies the core of the problem, there are a significant minority of drivers who clearly believe their desire to drive where and how they please is more important than the safety of other people (whether the writers of the letters above, fall into this category I leave it to the reader to decide). For this reason strict liability is important for the protection of vulnerable road users, as these motorists are the people who will never accept that they are at fault for any harm they cause to others. Unfortunately, we can not simply expect those who are surrounded by a steel cage and feel invulnerable, to respect the safety of others. A simple look at the number of people seriously injured or killed on our roads tells us that. Repeated surveys carried out by motoring organisations and insurance companies have also shown that the majority of drivers admit to breaking the law, whether it be exceeding the speed limits or using mobile phones while driving, these are instances of everyday dangerous driving. Yet, despite this, most people think of themselves as being “above average” drivers. It is time that we ended the culture of over-casualised driving and remind everybody again that a driving licence is a privilege, not a right. Let’s be clear, strict liability is not a panacea to making our roads safer. To do that effectively, we will need to restructure the roads to suit the needs of all users, not just the motorised, we need to adopt a Sustainable Safety approach to achieve a better road safety. Even then we will still need strict liability to provide justice for the vulnerable in the event of something going wrong.
 

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.

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.

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

Will we get a Golden Legacy?

Will we get a Golden Legacy?

Following from the tremendous success of cycling in the Olympic games (and the Tour de France) we started to dream of a Golden Legacy. People started to report that drivers were treating them with a modicum of respect when they were riding bicycles on the roads. There was hope in the air!

However, just a few months on, things are starting to revert, a small number of columnists in the print media have started to berate people for daring to ride bicycles as transport. Maybe we could blame this on Mark, who wrote a guide for columnists on how to write a terrible article about bicycles (something Tony Parsons seems to have taken rather literally). But no, the trend had started here in Scotland before Mark wrote his guide, as can be shown by Helen Martin writing in the Scotsman recently.

So I thought maybe it was time that this piece was examined in a little more depth. Let’s start with the headline:

Helen Martin: Invest in ‘active travel’ but make cyclists liable

which begs the question make cyclists liable for what exactly?

Well, she doesn’t tell us that at the start, therefore we need to work our way through the full article before getting to the punchline. She starts by telling us that she admires cyclists, while admitting to being chronically unfit. Next, she says that she doesn’t object to public money being invested in Active Travel, even if she doesn’t fully understand what it is. Public transport also involves an active element, as it doesn’t transport one from door to door, you are required to walk (or even cycle) at least a part of the way. Using cars and taxis is much more like “passive travel”, as the users will avoid walking at all cost, even if this involves parking on pavements or in other places which causes inconvenience or even hazard to others.

As a driver, Ms Martin then tells us that cyclists have made her a better driver, as they have taught her to use her mirrors. Well, speaking as an ex-driving instructor, I would hope that she had been taught to use her mirrors when she was learning to drive, as it is one of the basic skills which are tested during the driving test. Sadly, many drivers fail to understand that all the skills they are taught test are for use in everyday driving, all too often I have heard people saying “you only learn that for your driving test”. Besides which, all drivers are legally obliged to drive with due care and attention, failure to do so can put 3-9 penalty points on your licence (not that this seems to make that much difference). Maybe Ms Martin is also unaware that she is legally obliged to drive with reasonable consideration for other road users (again, failure to do so can result in 3-9 penalty points), she certainly seems to begrudge having to do so. She claims that “no driver wants to cause them harm or sets out to make their two-wheeled journey more treacherous than it need be”. Again sadly this is not the case: over the last few years in Edinburgh there have been a number of court cases where drivers have been prosecuted for deliberately endangering cyclists. Most, if not all, of these cases have been covered by the newspaper which Ms Martin is writing for. One of these cases involved a driver who “nudged a cyclist” as “a joke”, the driver in his defence claimed that he did not think this would seriously harm the cyclist. The cyclist suffered a broken hip. Now I am in no way suggesting that Ms Martin would drive this way herself, merely pointing out that these things do actually happen. Fortunately, such malicious behaviour is rare, however motor vehicles are inherently dangerous (which is why society only allows people to drive under licence). As a result, an inattentive driver is just as dangerous to other road users as a malicious one, for a cyclist or a pedestrian being hit by a car travelling at a speed of 35 mph, their chance of living is only 50%! Just think about how many drivers actually keep to the 30 mph speed limit, surveys have shown that the majority of drivers admit to exceeding it some or all of the time. The result of this inattentive and illegal behaviour results in, quite literally, thousands of innocent people being killed or seriously injured. Given these facts and that cyclists are required to ride on the roads to get from A to B, is it any wonder that they can be rather defensive when criticised by lazy journalists?

Next Ms Martin moves on to helmets, where she asserts that she “heard the generally accepted wisdom of cyclists wearing helmets being pooh-poohed by a lobbyist on radio”. Humm, I wonder who that could have been, I think I might well know. More importantly, where is the evidence to support this “generally accepted wisdom” on cyclists wearing helmets? For anyone who cares to check their facts, they will quickly find that it is rather less convincing that is widely supposed. Probably because the people most enthusiastic about the idea of cyclists wearing helmets are not the cyclists themselves, but drivers who don’t cycle (mostly because they think it is too dangerous). The reason they are so keen that those riding bicycles should wear helmets, is their belief that, should they “accidentally” hit a cyclist, they hope that a piece of polystyrene might in some way save the cyclist’s life. Sadly the evidence for this simply does not stack up.

Finally we reach the part about Liability, she starts by accepting that cyclists are vulnerable on the road and that most accidents will be caused by motorists, so far so good. Then we have “it is another thing entirely to say that cyclists cause absolutely no accidents”. Well yes, there is a small number of collisions each year where cyclists hit pedestrians or other cyclists, I would not deny that this happens. Next we have this:

What happens when they do [when they hit pedestrians or other cyclists]? Does the driver’s insurance pay out for his own injury or death as well as the cyclist’s? Who pays out when a cyclist collides with a pedestrian causing injury?

Now, at this point I would have expected some attempt at answering these questions, but no, instead Ms Martin starts to talk about “road tax” (for what it’s worth my views on Liability are here). She ignores the inconvenient fact that road tax was actually abolished in 1936 by Winston Churchill, as Chancellor of the Exchequer, on the grounds that it was giving motorists what he regarded a dangerously inflated sense of ownership of the public road. Boy, was Churchill right on that one, 76 years later this delusion still persists, with many drivers not understanding that owning a car doesn’t give them a greater right of access to the public road. Indeed there is no right to drive a motor vehicle, it is a privilege granted under licence. But, I digress, as this is one area where Ms Martin does seem to has done a little research, as she states “We know road tax doesn’t actually pay for roads though it’s not always easy to figure out where it goes and what it funds”.

Well Ms Martin, for your information, Vehicle Exercise Duty (VED) is a tax on pollution, based on the level of CO2 emissions. Vehicles which produce emissions of less than 100 CO2 g/km are exempt from VED. This means that the bicycle is in effect a zero rated vehicle, although it is not required to carry a tax disk. It has been calculated that if every bicycle in the UK using the road were to be issued with a tax disc, the cost of administration would add £20 to the bill for every vehicle producing emissions of over 100 CO2 g/km. It should be noted that this estimate is a few years old, pre-dating the current increase in on-road cycling, so the cost would probably be greater now. Strangely, when this is pointed out, most motorists suddenly want to change the subject. OK, lets deal with where motoring taxes go to. It is simple, they are paid into Government funds where they are used to pay for all those things the State does. If you are one of those people who thinks that the State shouldn’t raise taxes or spend them on infrastructure and services, might I suggest that you try visiting somewhere these thing don’t happen, Somalia springs to mind.

Having stated that she doesn’t understand how the roads are paid for, Ms Martin then goes on to say that, as motor vehicles pay this mythical “road tax”, cyclists should stay out of their way, and use the “whole swathes of our roads [that] are marked for cycles only”. This begs another question, where is this cycling paradise? There are a small number of advisory cycle lanes across Scotland, most of which are badly designed and often used for car parking. There almost no statutory cycle lanes in Scotland (if you disregard a few hundred meters in Glasgow, where the total length is less than 1Km). She further suggest that cyclists don’t pay for any of the cycle facilities provided, effectively saying that if you are a cyclist you don’t pay tax. Why doesn’t my accountant know about this?

Ms Martin tells us that roads are “car lanes” (see, Churchill was right!) and that cyclists using the roads “is extremely dangerous behaviour that poses a threat to themselves and drivers”. Hang on a minute, cyclists using the road pose a threat to drivers? I know of no record of a driver ever being killed or seriously injured due to a collision caused by a cyclist. Yet there are thousands of cyclists killed or seriously injured every year by drivers (the same goes for pedestrians). Earlier in the article did correctly state that most accidents collisions are caused by motorists, so which way is it?

This is followed by what I can only describe as a rant, in which Ms Martin complains about “Lycra-clad and helmeted” cyclists behaving like drivers. It is interesting that this group is singled out. One of the reasons that drivers pose such a threat to other road users is their relative lack of vulnerability. It is also a known factor that helmet wearing cyclists are more likely to engage in risky behaviour, a phenomenon called risk compensation, and is often cited as a reason why promoting the wearing of cycle helmets can actually be counterproductive. Another point I would like to make is that an individual’s choice of transport doesn’t make them a better or worse person, a reckless moron is a reckless moron, regardless of whether they are driving a car or riding a bicycle. The only difference is the scale of the risk they pose to others. Reckless, stupid, selfish behaviour should be condemned for what it is, irrespective of the mode of transport of the person concerned.

In conclusion, if you are going to write an article saying that “everyone has responsibilities and it would be nice to know what responsibilities cyclists should display as their part of the bargain.” You should first remove the mote from your own eye, before offering to wipe the speck from the eye of another.

Active Travel has a great deal to offer to the City of Edinburgh, but it is not helped by this hypocritical bilge masquerading as a reasoned argument published in the Scotsman.

 

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