Brenda Mitchell: Strict alternative to mayhem on our roads and in court

Picture: Getty
Picture: Getty
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ACCORDING to Transport Scotland, 156 cyclists were seriously injured on Scotland’s roads in 2011, the last year for which data is available.

Add to this the seven cyclists who were killed on our roads that year and you can see why there is increasing pressure to protect vulnerable road users.

Scotland’s system of fault-based compensation may be seen as out of step with its more forward-thinking European neighbours, where strict liability is seen as an integral factor in cycle safety. Reversing the burden of proof in civil law for cyclists and pedestrians injured by motorised vehicles by introducing strict liability offers a key chance to address the Scottish system’s failings.

Seriously injured cyclists and families of those killed can typically battle through the legal process for well over two years before receiving compensation. Under strict liability, when a cyclist is injured by a motorised vehicle, the motorist is automatically considered liable. Likewise, when a pedestrian is injured by a cyclist, strict liability ensures the cyclist is automatically liable.

Widespread in Europe, strict liability has cleared an important legal hurdle in that the European Court of Human Rights has refused to take issue with these laws. Indeed, though some view strict liability as a form of heavy-handed authoritarianism, the Strasbourg court has never indicated that such regimes would be in breach of human rights law, even when regarding Article 6 of the European Convention on Human Rights, which refers to the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The limited case law in this area is set out usefully in R v G (2008) UKHL 37, which relates to strict liability for statutory rape offences. It notes that the European Court has previously held that Article 6 only relates to procedural guarantees and not to the substantive law of contracting states with regard to civil law (Z v United Kingdom (2001) 34 EHRR 97) under which strict liability provisions fall. Accordingly, strict liability in civil cases is ECHR compliant. Strict liability already operates in workplace regulations and consumer-protection legislation, has garnered widespread public acceptance, and has contributed to a 20 per cent fall in major injuries at work since the mid-1990s.

In consumer-protection law for a product liability claim to succeed, for example, one must prove the defender supplied or manufactured the product in question, the product was defective and that the defect caused injury. Likewise, under a strict liability regime, a cyclist will still need to establish that there was a collision with a motorised vehicle, the defender was driving and that injuries and loss were sustained as a result of that collision before measuring the amount of compensation to be received.

Safe drivers have nothing to fear from this system. Research has indicated that motorists still take an uncharitable attitude towards cyclists, something strict liability would also help to change. A 2002 paper for the UK Department for Transport (DoT) stated that “motorists hold negative views of cyclists and tend to classify them as an ‘out group’.” A report commissioned by the DoT in 2010 pointed to a failure in a culture of road sharing, with a lack of consensus over whether and how cyclists belong on the roads. These attitudes have contributed to a general fear of cycling on the roads, the key factor preventing Scotland from meeting its ambitions to become a cycling nation. Strict liability would help engender a feeling of mutual respect between motorist and cyclist.

The present system needs to be altered to create a new framework, befitting of our nation, to protect vulnerable road users. In all cases handled by Cycle Law Scotland, primary responsibility has rested with the driver. Under a new strict liability “framework” pedestrians or cyclists will receive just compensation far more quickly than at present.

Strict liability offers a better and fairer system for Scotland. It offers a chance to alter driver behaviours and, if introduced, I would not be surprised if we look back years from now and wonder why we had previously accepted the mayhem on our roads and in our courts.

• Brenda Mitchell is the founder of Cycle Law Scotland, a specialised legal service for those involved in road traffic accidents.