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Road safety group look to introduce European-style strict liability legislation to Scottish civil law

Cycling campaign group, Road Share, is drawing on expertise from organisations including CTC, Scottish Cycling and Pedal on Parliament as it steps up its campaign for Scotland to adopt a law of presumed liability against motorists involved in collisions with people on bikes.

Road Share’s Campaign for Stricter Liability is targeting the introduction of liability laws that would deem motorists automatically liable in incidents with cyclists, unless it can be proved that the cyclist was at fault.

As it stands, the UK is one of only five EU countries that do not have a presumed liability law in place, which are based on a hierarchy of road users, with the most vulnerable afforded the greatest protection.

Under the system there is a presumption of liability against a lorry driver involved in a collision with a car, for example, or against a cyclist involved in an incident with a pedestrian.

A petition calling for a change in Scottish liability legislation has been active since April last year and has attracted 5,500 signatures.

In order to focus its efforts on lobbying the Scottish Parliament for the legislation, Road Share has set up a steering committee.

The committee has been tasked with analysing the benefits of civil law reform on road safety while also lobbying MSPs for a Member’s Bill for presumed liability in traffic collisions to Holyrood in the near future.

According to Glasgow-based newspaper The Herald, the steering committee is made up of 14 individuals from a number of key cycling organisations, including CTC, Scottish Cycling, Cycle Law Scotland and Pedal on Parliament which is coincidentally due to hold its third annual ride to Holyrood in Ediburgh this weekend to call for cycling-friendly Scottish roads.

Under the principle of presumed liability that Road Share wants to see introduced, in a collision between a car and a cyclist, the driver would be deemed liable and must pay full damages if the collision was unintentional by both parties and the cyclist cannot be proved to have been at fault in some way.

Similar laws operate in the majority of European countries, including in the Netherlands since the early 1990s.

Road Share references the continental cycling experience in a Q&A on its website where it cites strict liability laws as one of the contributing factors to the positive cycling culture in countries such as Belgium and the Netherlands.

It says: “Those of us who have cycled on the continent know that there is a very different relationship between motor vehicles and cyclists, one based on respect that was brought about in part by stricter liability.”

The campaign’s steering committee is to be chaired by national cycling charity CTC councillor Dr Chris Oliver, while other prominent Scottish cycling supporting councillors Frank McAveety and Jim Orr are due to join him.

The founder of  Cycle Law Scotland, Brenda Mitchell, who established the Road Share campaign last year, spoke to The Herald about the formation of the steering committee.

She said: "I am very pleased to see representatives from a number of different key organisations come together to work on this very important campaign."

You can keep up with Road Share's progress via its Facebook and Twitter feeds.

Elliot joined team road.cc bright eyed, bushy tailed, and straight out of university.

Raised in front of cathode ray tube screens bearing the images of Miguel Indurain and Lance Armstrong, Elliot's always had cycling in his veins.
His balance was found on a Y-framed mountain bike around South London suburbs in the 90s, while his first taste of freedom came when he claimed his father's Giant hybrid as his own at age 16.

When Elliot's not writing for road.cc two wheels are still his favoured mode of transport; these days over the undulating streets of Madrid.

49 comments

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IanW1968 [280 posts] 2 years ago
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I imagine UK insurers wouldnt be keen on this change.

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format [10 posts] 2 years ago
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Insurers should be jumping at this. Most of their costs are incurred from going to court, and Presumed Liability would drastically reduce the likelihood of a case getting that far.

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Kim [239 posts] 2 years ago
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This move it long over due, I have written a number of posts about Strict Liability and I fully support this move.

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dgcorp [15 posts] 2 years ago
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As a regular cyclist and occasional driver, I'm very much for this type of legislation to be implemented (across the whole of the UK please!!). Two things spring to mind:

Isn't hierarchical presumed liability similar to the way that if there is a collision of one vehicle into the back of another, it is understood that it is always the following vehicles fault, "should have left sufficient braking distance" (unless it can be shown the front vehicle did something reckless).
- Aren't most drivers aware of this?
- Can't this be given as a example of how it would work that they would understand?

Failing better driver education, can't the campaign to get the law just focus on 2 aspects: a) When a lorry hits a car it's presumed the lorries fault, b) When a cyclist hits a pedestrian, it's presumed the cyclists fault. Those 2 should get the car drivers cheering the new law on (before the fully grasp the Car to Cyclists relationship :-p )

D :>

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kie7077 [887 posts] 2 years ago
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@dgcorp

it's presumed the cyclists fault.

No change there then!

Anyhow, I have heard good arguments saying that this won't make any difference. I'd still like to see it written in stone though because there is still far too much victim blaming going on.

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TheLonelyOne [318 posts] 2 years ago
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Do you know, this is the first time I've actually seen "Strict Liability" explained in a way which actually makes sense to me?

I've previously been flatly opposed to the idea, believing it to take away the presumption of innocence. Now, I'm more comfortable with the concept.

So to check: Is this a valid breakdown from a cyclist's perspective:

Collide with a pedestrian?
No evidence to back you up?
Pay up.

If so, I think it would now be a very foolish cyclist who does not, at the very least, take out third-party insurance. We're strictly liable.

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kie7077 [887 posts] 2 years ago
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Kim wrote:

This move it long over due, I have written a number of posts about Strict Liability and I fully support this move.

Good blog, this bit I especially liked:

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."

Because it's not about who is to blame after the fact, it is about deterring bad driving in the first place.

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Housecathst [537 posts] 2 years ago
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They might have half a chance of getting this through in Scotland. However in England the daily mail and sun reads would take to the street in revolution if this idea came anywhere near becoming law.

No political party would go aware near this idea because of the right wing media.

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big mick [184 posts] 2 years ago
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Having rode a lot in Spain where it's is already law trust me it works.No cars or hgv's come near.Infact they give way on roundabouts when they have right of way and never come close when passing.It feels strange at first but safe.Only ex pats (brits) come close.They pass close and sure enough the GB badge is on the back.Also they always look too old to be driving the ex pats that is!!

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Kim [239 posts] 2 years ago
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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!

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Kim [239 posts] 2 years ago
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The bicycle has been around for over 130 year and all that time there has never been a requirement for cyclists to have insurance. Motorist have been legal required to have third party insurance since 1903, seven years after the first pedestrian was killed by a car. The reason that cyclists are not, and have not ever been, required to have third party insurance is because they do very little harm to other.

In the event that Presumed Liability becomes law, I see no reason why I would need to go out and get third party insurance, because I ride with care and attention, and therefore don't pose a threat to pedestrians. This such a law would have no negative consequence for me because I do not ride in a reckless manner. Only the reckless have anything to fear from Presumed Liability.

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crazy-legs [811 posts] 2 years ago
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big mick wrote:

Having rode a lot in Spain where it's is already law trust me it works.No cars or hgv's come near.Infact they give way on roundabouts when they have right of way and never come close when passing.

Spain has a few other laws in addition to Presumed Liability and one is that a peloton of cyclists is treated as one vehicle. So if the front of the peloton gets onto a roundabout or through a junction, the rest of it is legally entitled to follow, even if the lights change or there is another vehicle coming round the roundabout that (in the UK) would have right of way.

Very similar to an articulated lorry driving through a junction.
I'm fairly sure Spain also has a 1.5m minimum passing law (anyone care to back me up on that?). It also has a very strong culture of cycling so chances are even if the driver doesn't actually cycle, they'll still be very proud of the Vuelta, Indurain, Contador etc.

Presumed Liability in the UK would be probably the single biggest Good Thing for any politician to do for cycling.

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jmaccelari [249 posts] 2 years ago
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Hells teeth! Those London pedestrians are going to get even worse!

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noether [96 posts] 2 years ago
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I always conceived that promoting cycling hinged on investment in cycling infrastructure (incl public transport) and investment in education (school/ driving schools/ media). The more people take to biking, the safer it becomes, not only because bicycles become a permanent fixture of the trafficscape - making drivers more aware - but also because more drivers become cyclists - making them understand both the pleasure and benefits of cycling and the threat of cars. I had never thought of the law perspective: indeed the third essential ingredient.

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PhilRuss [390 posts] 2 years ago
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Housecathst wrote:

They might have half a chance of getting this through in Scotland. However in England the daily mail and sun reads would take to the street in revolution.....

[[[[[ Daily Mail and The Sun readers revolting? How very dare you!
P.R.

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TheLonelyOne [318 posts] 2 years ago
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Kim wrote:

Only the reckless have anything to fear from Presumed Liability.

No. The liable have everything to fear from the reckless.

One witness-less incident with the witless and you are worth less.

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jacknorell [974 posts] 2 years ago
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neildmoss wrote:
Kim wrote:

Only the reckless have anything to fear from Presumed Liability.

No. The liable have everything to fear from the reckless.

One witness-less incident with the witless and you are worth less.

Except the experience of all countries with strict liability doesn't show this. At all.

Regardless of what the Daily Fail says.

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Joeinpoole [441 posts] 2 years ago
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Kim wrote:

The bicycle has been around for over 130 year and all that time there has never been a requirement for cyclists to have insurance. Motorist have been legal required to have third party insurance since 1903, seven years after the first pedestrian was killed by a car. The reason that cyclists are not, and have not ever been, required to have third party insurance is because they do very little harm to other.

In the event that Presumed Liability becomes law, I see no reason why I would need to go out and get third party insurance, because I ride with care and attention, and therefore don't pose a threat to pedestrians. This such a law would have no negative consequence for me because I do not ride in a reckless manner. Only the reckless have anything to fear from Presumed Liability.

I believe most of us will already have liability insurance through our Home Buildings & Contents insurance. I'm covered within the UK on mine.

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mpdouglas [26 posts] 2 years ago
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I can't help fearing that this means every single cyclist is going to need 3rd party insurance (which may no longer be free with CTC/BC membership) and will need to ride around with a front and rear facing camera. We do, after all, live in a country where there are more than 1,500 whiplash claims per DAY (!) and more than half of them are fraudulent.
Strict liability means it's easy money for a pedestrian willing to step out in front of a cyclist and feign injury.
I cycle daily into central London so I should be in favour of this but I can't help thinking it might be a case of "be careful what you wish for, it may come true". I hear the argument about other countries not having this experience but I don't think other countries have 1,500 whiplash claims per day (the ABI reckon Britain is at least double France, Spain and the Netherlands).

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dgcorp [15 posts] 2 years ago
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@mpdouglas

I agree that there are some truly awful people out there who will lie for gain or to protect their mistake. But the example you use is not a good one:
"Strict liability means it's easy money for a pedestrian willing to step out in front of a cyclist and feign injury."

Cyclists would have to be careful going over zebra/etc crossings (as we already should be - in case the lemmings leap out from nowhere!), but if a pedestrian 'steps out in front of a cyclists' in the road where there wasn't a crossing, this would be exactly the sort of thing which would revoke the presumed liability.
On the other hand, if a cyclist was ever on the pavement (where they shouldn't be) then they would always be presumed liable for any accident that took place in this space.

I know laws don't always work this way... but "presumed liability" really is meant as a soft nudge-nudge to the party in the larger vehicle to be more careful and considerate around smaller parties. Not as a stick to penalise them when accidents (not incidents mind you) do happen!

My two-penneth... D :>

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Initialised [310 posts] 2 years ago
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So if two cars collide is the one with the more powerful engine or heavier weight at fault?

And if two cyclists collide is the one with the lower FCN liable?

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IanW1968 [280 posts] 2 years ago
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format wrote:

Insurers should be jumping at this. Most of their costs are incurred from going to court, and Presumed Liability would drastically reduce the likelihood of a case getting that far.

Mmmm not sure about that, If most of the costs were from courts they could avoid those now by accepting liability without dispute.

Whilst you would hope driver behaviour changed and claims were minimal there'll be some additional costs and those will be borne by insurers firstly and premium payers in the end.

Don't get me wrong I agree in principle with the idea but I wonder if the campaigners have sort a view from motor insurers.

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vbvb [620 posts] 2 years ago
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The politics of this is interesting -if it's a No in September, the SNP will do well to look at policies that make us (in Scotland) more akin to the other social democratic Euro countries, to help increase the distinction some of us perceive between our politics and outlook and those of SE England. Meaning, this policy might float then, despite the political risks it carries.

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rollotommasi [6 posts] 2 years ago
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Sorry, but strict / presumed liability would not make our roads safer.

If we want our roads to be safe, then safety must be the responsibility of ALL road users. Existing civil law already does this, by making all road users responsible for their own actions and not presuming that any party is automatically liable if an accident occurs.

Road safety also depends on more than simply adhering to the letter of the law or the minimum people can get away with under the Highway Code. It needs road users also to abide by the SPIRIT of these rules. Good road behaviour includes being aware of others, being courteous to other road users, and driving/riding in appropriate ways that other users can predict. These principles underpin proper defensive driving/riding techniques that cautious cyclists and careful drivers rightly adopt.

The strict liability campaign undermines these good principles. Strict liability only works with hard and fast rules - it can't cope with tests of whether parties' behaviour was reasonable in the circumstances. If strict liability applied, drivers would have to be made liable even if cyclists marginally complied with the minimum requirements of the law, even if the cyclist’s actions were reckless in those particular circumstances.

Cycle Law Scotland's agenda seems to be even worse. It appears they want drivers to be liable even where a cyclist has failed to abide by the Highway Code. Rule 72 of the Code clearly states "Do not ride on the inside of vehicles signalling or slowing down to turn left." But that's not what Cycle Law Scotland's website would have you believe. According to them "Filtering is a perfectly legal way to make progress through traffic safely" (http://www.cycling-accident-compensation.co.uk/Filtering.aspx) - no exceptions given.

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format [10 posts] 2 years ago
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Mmmm not sure about that, If most of the costs were from courts they could avoid those now by accepting liability without dispute.

Most cases don't go to court - insurers will settle out of court after dragging their feet for as long as possible.

What Presumed Liability will help with is helping vulnerable road users be compensated quickly and fairly for their injuries and losses. At the minute you can have people waiting years for a resolution to their case, which is entirely unfair.

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format [10 posts] 2 years ago
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Sorry, but strict / presumed liability would not make our roads safer.

If we want our roads to be safe, then safety must be the responsibility of ALL road users. Existing civil law already does this, by making all road users responsible for their own actions and not presuming that any party is automatically liable if an accident occurs.

Presumed Liability works very well in several european countries with very low cyclist KSI rates. There is absolutely no reason it won't work here

Road safety also depends on more than simply adhering to the letter of the law or the minimum people can get away with under the Highway Code. It needs road users also to abide by the SPIRIT of these rules. Good road behaviour includes being aware of others, being courteous to other road users, and driving/riding in appropriate ways that other users can predict. These principles underpin proper defensive driving/riding techniques that cautious cyclists and careful drivers rightly adopt.

I'm glad we agree on this - being courteous to other road users is very important. All the evidence thus far shows that it is a minority of bad drivers that are at fault in the majority of incidents between cyclists and motorists. Presumed Liability would be a strong disincentive to this minority (and everyone else) to improve their behavior to other road users. I

The strict liability campaign undermines these good principles. Strict liability only works with hard and fast rules - it can't cope with tests of whether parties' behaviour was reasonable in the circumstances. If strict liability applied, drivers would have to be made liable even if cyclists marginally complied with the minimum requirements of the law, even if the cyclist’s actions were reckless in those particular circumstances.

Strict liability could be seen to undermine these principles. That's why we're campaigning for 'Presumed Liability' - if a road user has acted completely responsibly then the presumption of liability will evaporate!

Cycle Law Scotland's agenda seems to be even worse. It appears they want drivers to be liable even where a cyclist has failed to abide by the Highway Code. Rule 72 of the Code clearly states "Do not ride on the inside of vehicles signalling or slowing down to turn left." But that's not what Cycle Law Scotland's website would have you believe. According to them "Filtering is a perfectly legal way to make progress through traffic safely" (http://www.cycling-accident-compensation.co.uk/Filtering.aspx) - no exceptions given.

Except the highway code *does* allow filtering. Rule 72 only applies to vehicles turning left. It says nothing about multiple lanes or traffic or filtering past stationary traffic. Filtering is perfectly acceptable in this situations.

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IanW1968 [280 posts] 2 years ago
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format- do you have anything to support the statements "most of the costs are incurred by going to court" whilst also saying "most cases dont go to court" ?

Seems a bit contradictory.

Once again I support Presumed Liability and your campaining but I also understand the influence insurers have on policy especially at the moment when our goverment wants to been seen as "champions" of the great british motorists and keeping cost down.

Have you approached the insurers for a view?

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format [10 posts] 2 years ago
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Apologies, I should have been clearer.

Most cases don't go to court because the majority of the time, the insurance companies know they don't have a case.

In terms of going to court - it incurs very high fees, so a system which lessens the likelihood of this happening should in theory be preferable to the insurance industry.

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pmanc [206 posts] 2 years ago
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Some points about strict/presumed liability:

- They are not the same thing. "Strict" means we always consider the person with the larger vehicle liable. "Presumed" means we presume they are liable unless they can show otherwise (which seems fairer to me). This may seem pedantic, but often the terms are used interchangeably which is wrong.

- We already have a good example of presumed liability in the UK. We all know that if one driver rear-ends another the driver behind is presumed liable unless they can prove otherwise. This generally works well, except in a small number of "crash for cash" scams. Pedestrians and cyclists are rather less likely to commit this kind of fraud because it would require them to be injured, which hurts.

- Despite presumed liability being a sensible rule which all civilised nations have already implemented - obviously the person with the biggest most dangerous vehicle should be the most careful (rather than "might is right") - we should not delude ourselves that it will result in much safer roads or mass-cycling. No driver expects to have a collision. Knowing the driver will be blamed is small consolation in an accident, or in a near miss situation. It will NOT encourage people to cycle or to let their kids loose on the road. Only safer infrastructure is proven to make that kind of change. But it might send a signal that cycling and walking are considered worthy of being prioritised.

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rollotommasi [6 posts] 2 years ago
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Presumed Liability works very well in several european countries with very low cyclist KSI rates. There is absolutely no reason it won't work here.

Where's your proof for this? Why is presumed liability a cause of low cyclist KSI rates rather than, for example, better cycling infrastructure or laws that clearly set out what drivers and cyclists can and cannot do.

Also, in which of these countries does presumed liability apply where the cyclist is a fit adult (as opposed to a child or vulnerable adult)?

Presumed Liability would be a strong disincentive to this minority (and everyone else) to improve their behavior to other road users.

How can placing almost all of the responsibility for road safety on only some road users possibly be better for safety than placing responsibility on ALL users?

That's why we're campaigning for 'Presumed Liability' - if a road user has acted completely responsibly then the presumption of liability will evaporate!

Sorry, but I fail to see how this encourages ALL road users to act "completely responsibly"?

Except the highway code *does* allow filtering. Rule 72 only applies to vehicles turning left. It says nothing about multiple lanes or traffic or filtering past stationary traffic. Filtering is perfectly acceptable in this situations.

The fact is that Cycle Law Scotland is highly selective about what parts of the highway code it refers to on its website. It gives the impression that cyclists have a universal right to filter, when that is NOT the case.

I should stress, I write as an occasional cyclist, and someone very dear to me is a regular cyclist. Safety for cyclists is paramount. But that is far better done through the right infrastructure, a clearer understanding for all road users about how they behave, for all drivers to behave properly and for no cyclist to give their fellow cyclists a bad name.

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