A change in the law is needed to ensure motorists are held fully liable for any incident involving the more vulnerable, says Brenda Mitchell
Cycle Law Scotland is campaigning hard to gather support for the Road Share campaign to introduce a strict liability regime into Scottish civil law.
Our online petition has so far gathered over 3,300 signatures and we are working towards presenting a Members Bill to the Scottish Parliament later this year.
However, as with any proposal for change, there will always be opposition and despite the rising number of cyclists seriously injured on Scotland’s roads, there are still pockets of society who do not agree that motorists should he held liable for collisions involving cyclists and pedestrians.
The recurring theme coming from the opposition camp is that blaming drivers by default goes against natural justice and the age-old saying “innocent until proven guilty”. This is simply not the case.
Penalty points or imprisonment
Stricter liability concerns civil law. There is a distinct difference between criminal and civil law. In civil law, there are no “guilty” parties. Civil law provides a remedy of a monetary value where someone has been injured or killed as a result of the actions of another. Where this involves a breadwinner, we are often dealing with very difficult family and financial issues. Civil law does not impose any criminal sanctions, penalty points or imprisonment.
At Cycle Law Scotland, we represent a broad range of clients, from those who have been involved in relatively minor collisions right up to those who have lost relatives in fatal cycling incidents. In all these cases, we have to prove that the motorist was at fault for the collision and this can be lengthy and traumatic for our clients.
Even the most straightforward accident circumstances can be disputed. For instance, one of our clients, Jamie Aarons, was involved in a collision with a taxi when the driver opened his car door right in her pathway.
Initially, the taxi driver appeared very reasonable, helping to pick up the bike, confirming her lights were functional and providing his mobile phone number before leaving the scene.
She made contact with the taxi driver at a later point to advise him that her bike was damaged and her helmet needed to be replaced and at that point the taxi driver said that he would sue her for damage caused to his vehicle.
Jamie was then forced to battle against a large insurance company for 11 months.
During this time proceedings were raised in the Court of Session but eventually the taxi driver’s solicitors offered Jamie a settlement payment.
Jamie was left traumatised by this accident which severely affected her confidence to ride on the roads again.
Had a strict liability regime operated it is likely that her claim would have settled within a period of 12 weeks following upon the accident.
Driver should be presumed liable
This example is not uncommon but in truth most motorists are distraught at causing collisions. In civil law they are not “guilty”, it’s their negligent act that has injured another and their insurance company will deal with any claim.
All we are suggesting is that in the event a larger, faster moving vehicle is in collision with a cyclist or pedestrian, the driver should be presumed liable but if the injured party is under 14, over 70 or disabled, then the driver should be deemed fully liable. It’s simply about protecting the vulnerable and bringing us into line with the rest of Europe.
We understand that no-one ever intends to injure another road user but the simple fact is road traffic collisions are caused through a negligent act, often a lack of concentration or a lack of observation, but it can lead to a cyclist or pedestrian sustaining serious injury and its always the more vulnerable road user that will come off worse.
A strict liability regime would allow cyclists and pedestrians to obtain compensation in an efficient and streamlined manner and in situations where a cyclist may be partly at fault then the burden will be on the car driver to prove this.
For those who fear that a “crash-for-cash” culture will develop, simply ask anyone who has been knocked off their bike if any money would compensate them for the pain and suffering they endured. No cyclist or pedestrian in their right mind would throw themselves at a moving vehicle as they have absolutely no protection which is the point.
This is about protecting the vulnerable and injured party and not about presuming anyone’s guilt. All drivers will remain “innocent until proven guilty” as that is the preserve of the criminal justice system.
• Brenda Mitchell heads up the Borders team at Cycle Law Scotland