Jodi Gordon: Road traffic law tinkering doesn't go far enough

One eminent English lawyer recently called for tests for cyclists as part of a ten-point plan to help cut road deaths. He is not the first and will not be the last to want more regulation placed on cyclists, but is he right?

Jodi Gordon is an Associate Solicitor at Cycle Law Scotland and a supporter of the Road Share campaign for presumed liability for vulnerable road users.

Nick Freeman’s proposals suggest cyclists should be identified with number plates on their bikes, bikes should have a MOT annually, cyclists should be legally mandated to wear both helmets and high-visibility clothing AND should take a cycling proficiency test.

The last suggestion for a ‘cycle proficiency’ course and test for school children is sensible but it is actually already being delivered as ‘bikeability’ training. The real issue is ensuring it is available to all schools across all local authority areas, not just a select few.

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As for the rest of his proposals, they are frankly bizarre and completely impractical. To me, they appear to be designed to fuel the ‘cyclists v drivers’ debate which is unhelpful and predictable.

If the legal profession can be encouraged to improve legislation around road safety, let’s be more ambitious.

Let’s consider forward-thinking countries that have developed laws to protect cyclists and pedestrians. Look no further than Denmark, The Netherlands or France to see the benefits of such legislation. Cycling in these countries is an everyday activity, yet there are no number plates on bikes, no MOTs, no high-viz, no legislation on helmets and no tests. Somehow, it works. Riding a bicycle is seen as a convenient form of transport to get from A to B.

Mr Freeman also calls for drivers to learn how to overtake cyclists as part of the driving test. This would of course be a positive step and fits in with the Highway Code, which all learner drivers are tested on as part of their theory.

However, I believe we need a different starting point. A focus needs to be on the fact that cyclists and pedestrians will always come off worse in a collision with a motor vehicle.

In Eagle v Chalmers 2003, which concerns a pedestrian run down by a car driver, Lady Hale summed up by saying: “The potential ‘destructive disparity’ between the parties can readily be taken into account as an aspect of blameworthiness” and “It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has suddenly moved into the path of an oncoming vehicle. That is not this case. The court has consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon.”

The reality is that the road culture in this country does not encourage a greater respect for the more vulnerable road users and Mr Freeman’s charter simply highlights the inequality that exists. The constant ‘them and us’ approach is destructive and stirring up a debate on that basis is not helpful.

What’s needed is a concerted effort to look at how a change in Civil Law might begin to change our mindset from ‘car first’ to ‘road share’.

The current system of Civil Law in relation to road traffic collisions requires vulnerable road users – injured and bereaved – to prove the case against the more powerful, which in most situations is the motorist’s insurance company. This is out of date and inherently unjust.

Under a system of presumed liability, it is for the more powerful to prove the vulnerable road user is liable for any damage or injury. It is not about attaching blame, but about liability in law and compensating vulnerable road users quickly and effectively. Under presumed liability, the burden of proof is merely reversed. If liability is split and negligence is found to be with both parties, then presumed liability allows for that. Importantly, if a cyclist or pedestrian is the author of their own misfortune, then liability on the part of the motorist’s insurer is avoided and no compensation is awarded.

For solicitors like me, who represent people who have often had life-changing injuries or lost loved ones, if there is to be a charter for greater road safety, tinkering around the edges will not work.

Jodi Gordon is an Associate Solicitor at Cycle Law Scotland and a supporter of the Road Share campaign for presumed liability for vulnerable road users.