Browsed by
Tag: stricter liability

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.

Fairness and liability on the roads: part 3

Fairness and liability on the roads: part 3

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

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

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

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

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

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

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

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

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

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

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

Current Situation

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

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

Existing Laws in other countries

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

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

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

Proposals

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

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

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

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

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

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

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

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

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

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

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

Fairness and liability on the roads: part 2

Fairness and liability on the roads: part 2

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

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

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

Liability Issues

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

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

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

Fairness and liability on the roads

Fairness and liability on the roads

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

Dear Sheila Gilmore,

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

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

Car colliding with pedestrian or cyclist:

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

Cyclist colliding with pedestrian:

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

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

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

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

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

Looking forward to hearing from you.

Yours sincerely, etc.

Some weeks later I received the following reply:

Dear Kim,

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

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

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

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

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

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

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

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

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

Yours sincerely

Sheila Gilmore MP

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

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

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

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

Do NOT follow this link or you will be banned from the site!
%d bloggers like this: