Law firm launches campaign for 'strict liability' in Scotland in cases involving cyclists

Cycle Law Scotland's initiative has backing of CTC Scotland, Pedal On Parliament and Spokes

by Simon_MacMichael   April 16, 2013  

Scottish Parliament Bike Stands (copyright Simon MacMichael).jpg

A firm of solicitors in Scotland has launched a campaign to have the country’s civil law changed to introduce a system of ‘strict liability’ liability in incidents involving motor vehicles and more vulnerable road users such as cyclists. The Road Share campaign, devised by Cycle Law Scotland, is backed by organisations including CTC Scotland, Pedal On Parliament and Lothian cycle campaign group Spokes, among others.

Under such a system - more accurately termed 'presumed liability,' although 'strict liability is the one used in the campaign - a hierarchy is established that places a presumption of liability that favours the more vulnerable road user – for example, where a cyclist has been struck by a car, the motorist is presumed to be liable, unless they can prove that the cyclist was at fault. The system only applies to civil cases, not criminal ones.

The firm says that introducing the system it proposes would meant that victims would receive compensation more quickly, the burden on the courts would be reduced, and road users’ attitudes would change, with a consequent improvement in safety.

Edinburgh-based Cycle Law Scotland says that the UK is one of just five of the 27 European Union member states – the others are Cyprus, Ireland, Malta and Romania – where in such cases there is no ‘strict liability.’ t

According to the firm,

As a consequence, our current system expects those injured or the families of those killed to go through an often harsh and protracted process to gain much needed treatment, care or compensation. On the Continent, strict liability is seen as an integral factor of cycle safety and Scotland has the power to introduce this principle into civil law to demonstrate its credentials as a civilised, cycle-friendly nation.


The ultimate aim is to introduce a private member’s bill into the Scottish Parliament, designed to protect the most vulnerable road users and to reflect a hierarchy of road users. To that end, the campaign sets out to highlight the dangers cyclists face from motorists and help facilitate a change in attitudes amongst road users to one based on mutual respect and understanding. Over the course of the next two months, we are running an online petition and forums to share knowledge and advice.

The firm says that introducing the system it proposes would meant that victims would receive compensation more quickly, the burden on the courts would be reduced, and road users’ attitudes would change, with a consequent improvement in safety.

The campaign also has the support of Richard Lyle, Member of the Scottish Parliament representing Central Scotland, who says: “The laws around strict liability should be looked at as we work to make Scotland a cycle-friendly nation.

“For too long, strict liability for road users has been dismissed as too difficult or too contentious a law, but in a modern society that sees cycling as an integral part of a healthy lifestyle and sustainable economy, it is important to put this debate back on the agenda.

“If strict liability can be shown to help improve road safety and provide protection for those injured, then Scotland should not be afraid to take a lead and change the law.”

You can find out more information about the campaign here, and a dedicated Facebook page has also been set up to support it.

29 user comments

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No. We are all members of the public and we all have a duty to act responsibly. Otherwise it's a lawyers feeding frenzy which benefits no-one.

posted by sidesaddle [52 posts]
16th April 2013 - 12:43

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definitly in favour of this, everyone is responsible for their actions, they also have a duty of care to those around them, and this means the stronger looking out for the weaker.

I forgot "society doesn't exist anymore" Sad

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posted by mrmo [546 posts]
16th April 2013 - 12:49

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Doesn't seem right... presumed guilty unless proven innocent. Obviously something needs to be done re: the pathetic laws but this doesn't seem right.

posted by eurotrash [56 posts]
16th April 2013 - 12:55

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2 things:
1. Sidesaddle - it would benefit the Lawyers, so we can't say it benefits no-one...
2. I assume would also apply to say a cyclist who knocks over a pedestrian crossing the road without looking...

I think it would be workable - it works fine in places like France. However, I expect our lawmakers will exert their usual level of competence on the lawmaking process and make the usual hash of it. Also bear in mind that our local Scottish lawmakers are a step or two down from even the Westminster based eejits.

Not so much a six pack as a barrel!

posted by Bigfoz [43 posts]
16th April 2013 - 13:05

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I don't understand how else one can go about making sure the roads are safe, if you drive a two ton piece of metal on the roads you clearly should be responsible for any potential damage it could do. Same goes for cyclists, one should be prepared that there might be pedestrians/dogs around the corner on a cycle path and take it a bit core cautiously there. makes perfect sense to me.

posted by mhtt [41 posts]
16th April 2013 - 13:16

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No-one should ever have to prove their innocence.

I've had my "idiot" moments in the saddle which demonstrate to me that this is a very poor idea.

I recently day-dreamed my way through a red light (with fortuitous absence of vehicles going through the green light).

I once turned right across a car which was behind my right shoulder because I just followed the vehicle in front, not noticing the "straight on" exit of the junction. I gouged out paintwork on wing and bonnet and ended on the floor. The idea that the driver of that car should have been presumed liable is as idiotic as my manoeuvre.

I think this idea generates a perception that cyclists are an "untouchable" with rights over and above other road users. That will breed resentment in some drivers, and unwarranted confidence in some cyclists, and I think that is not a good mix.

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posted by neildmoss [133 posts]
16th April 2013 - 13:20

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eurotrash wrote:
Doesn't seem right... presumed guilty unless proven innocent. Obviously something needs to be done re: the pathetic laws but this doesn't seem right.

it's not about guilty or innocent, it's about being liable by virtue of doing the more dangerous thing. people aren't going to be sent to prison because of this, it's about easy access to compensation for vulnerable road users injured in collisions. and it works fine all over europe.

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posted by Dave Atkinson [6708 posts]
16th April 2013 - 14:50

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what people have to remember is you have no right to drive, you do so under licence. Licences tend to come with rules that, IME seem to be forgotten as soon as the test is passed. If we can at least make people think, make people remember that the roads do not exist for the sole benefit of cars then that is IMO progress.

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posted by mrmo [546 posts]
16th April 2013 - 16:41

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@neildmosss, might i suggest that driving through a red light is the problem, do you honestly think it is OK, that you just happened to not be paying attention?

As i just mentioned you have no right to the road, pedestrians, cyclists and horses do. yet your the one who is in the most dangerous vehicle and by your own statement driving without due care and attention.

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posted by mrmo [546 posts]
16th April 2013 - 16:43

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It works fine all over Europe, but it's just there in the background, not something people think about much. On a practical level, it obviously makes things easier for victims, but in terms of actually preventing accidents, sending out a message to drivers that cyclists want special treatment might not be great PR.

I think there are lots of reasons why drivers in Denmark and the Netherlands and Germany are careful around cyclists. Driver training, culture, more people mixing modes to get around, fewer people absolutely reliant on cars, perhaps.

But purely in terms of regulations, here are two German rules that I like.

1) Speed limits that kick in when the road is wet

2) The section on speed in the StVO (general road traffic regulations) has a sentence saying that drivers must moderate their speed and be ready to brake if they can see children or old people. (This leads to some signage clutter - lots of signs alerting drivers that they are close to schools, nurseries, old people's homes etc.)

I find German drivers pretty good around cyclists, but I'm not convinced strict liability is the biggest influence making them so.

posted by bambergbike [54 posts]
16th April 2013 - 16:47

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@mrmo - To clarify my post - the situations I described were idiot moments I had whilst riding a bike, _not_ whilst driving a car.

I _cycled_ through a red light unintentionally through lack of attention. I wanted to highlight that, had I collided with a car, the driver would be presumed to be liable.

That just seems wrong to me.

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posted by neildmoss [133 posts]
16th April 2013 - 16:56

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mrmo wrote:
definitly in favour of this, everyone is responsible for their actions, they also have a duty of care to those around them, and this means the stronger looking out for the weaker.

I forgot "society doesn't exist anymore" Sad

But what if the 'victim' cyclist has voluntarily placed himself in danger? Fact is accidents do happen & drivers make mistakes. Others similarly encased with metalwork just suffer bent metal. A cyclists chooses to place himself, exposed, among hundreds of pretty average people operating large lumps of machinery. The problem with all this is that it draws cyclists to the attention of drivers who are entitled to ask, 'Why do we need cyclists on the road? This causes cyclist furore but drivers are entitled to oppose liability and suggest that cycling on roads in 2013 is now a catalogued risky business; clearly acknoweledged by this very proposal.

Road safety 'experts' are often folk who's CV doesn't cut the mustard.

posted by Sedgepeat [39 posts]
16th April 2013 - 19:13

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It's not about automatically making the driver liable. Thats not what is going on. The onus would shift on to them to prove that it was not their fault (rather than as it currently stands for the cyclist to prove that the driver is at fault). In your example it would be relatively easy for the driver to prove that the cyclist was at fault, as they cycled through a red light.

posted by paulmcmillan [44 posts]
16th April 2013 - 19:14

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Anything that might make drivers think a bit more carefully about how they drive can only be a good thing.

posted by paulfg42 [325 posts]
16th April 2013 - 21:00

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Agree with paulmcmillan, it doesn't mean the driver is liable, just that the driver should explain why it is not their fault. (And "he came through a red light" should be enough). I once heard a Dutch guy describe strict liability like this - a car driver hits a cyclist who swerved out to miss a drain cover. Liable? Absolutely, because they saw the cyclist ahead, the driver should be aware that cyclists need room because they react to road hazards unpredictably, so the driver should have allowed more room, or waited to overtake; the driver would have to prove that the cyclists action was unreasonable to avoid being at fault. Exactly the same applies if you replace 'cyclist' with 'pedestrian with dog on shared use path' and 'driver' with 'cyclist'. Dogs do strange things, you know that, so anticipate and allow for it. It doesn't mean someone can get away with stupid actions, but does shift the emphasis in favour of the more vulnerable user.

posted by 3cylinder [32 posts]
16th April 2013 - 22:03

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How about "no fault" insurance for bicycles and cars. Saves a lot on lawyers fees, and would protect cyclists who on average take the blame when the true cause is not able to be determined.

hicks

posted by ch [76 posts]
17th April 2013 - 6:28

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And in your 'idiot' moments, the driver would no-doubt have been able to prove that you were at fault... so it wouldnt be a problem.

It works fine in Europe and appears to make perfect sense. Also, in the absence of a better suggestion (cycling related road death numbers aren't getting better anytime soon), I can't see a problem with it.

Friends that live abroad are perfectly happy with this arrangement and as a result both drive and cycle more caustiouosly as a direct result, making for a more pleasant experience for all road users including the pedestrian.

posted by bradders1980 [9 posts]
17th April 2013 - 7:41

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Superb shout. Here's hoping it catches on down south.

posted by bradders1980 [9 posts]
17th April 2013 - 7:45

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Can't help thinking their will be unintended consequences of this one.

1. Driver resentment of cyclists
2. Over-confident cyclists
3. Compensation-hunting (idiot contrives situation to force accident then blames other party - appreciate this already happens, but with presumed liability, surely it would be easier - just walk out in front of a bike then claim the cyclist was going too fast for the road)

Dodging the saccadic masking

posted by notfastenough [2327 posts]
17th April 2013 - 8:27

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It works fine all over Europe, saves time, lowers lawyer fees, and so reduces car insurance costs. The only issue is voter ignorance.

posted by vbvb [63 posts]
17th April 2013 - 17:23

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Mmmmm....I wonder??

While I do agree that the concept does seem sound but the devil is going to be in the detail and I'm really not too sure with our current compensation culture it would not be open to some form of abuse.

Also I do wonder what will be said with regard to what the cyclist is wearing, we all know the arguments that we have seen on levels of compensation being paid out dependant on if the cyclist was wearing a lid, hi-viz clothing etc so how would this be reflected in this proposed legislation??

So in conclusion, I need to see more before I am convinced of the benefits but I do agree with the concept.

posted by Furry Mommy [31 posts]
17th April 2013 - 19:21

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All responsible road users should welcome this proposal. All cyclists should surely welcome it. It will make it more likely that vulnerable road users who are injured by at fault motorists will receive fair compensation. If the motorist can show he is not at fault the presumption is rebutted, so it is not unfair to innocent motorists.

If motorists really think that they will have to show that they were not at fault if they hit a cyclist, they are much more likely to drive carefully around cyclists. It may thus help a gradual shift in attitudes similar to legislation on drink driving.

There is a lot of misinformation about the "compensation culture". If a motorist injures someone, that motorist's insurers will try to reduce the pay out by any argument they can. The first argument will be about whose fault it was and in what proportion (which is where this propsal can help the vulnerable road user).

The next argument will be about the amount of the loss. You will be dependent on the strength of your evidence, whether you can afford to lose (and oay the insurer's legal costs) and your own lawyer's negotiating skills. Because of that negotiating process, in a normal claim (not fraudulent or exaggerated) the compensation received will nearly always be less than the actual loss and will never make up for the damage to your health and your cycling.

posted by Vercors [38 posts]
17th April 2013 - 22:21

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Wouldn't have too many issues with this in principle. Often the PI payment made to the claimant is dwarfed by legal fees. The more vulnerable road user has a great deal more interest in enuring their personal safety in their road behaviour, so is a reasonable assumption.

However, in practice, the insurance industry do need to toughen up on causation. There's too many medical reports flying around signed by rentadocs with "soft tissue injury" and "mental trauma" from claimants - even the odd cyclist who needs to read Rule 5 again - who suddenly discover they've been injured two years eleven months and three weeks after the accident. Legislation may be afoot here, so watch this space.

The solicitors and introducer firms do feel like they're lining up the shots to the end of the bar in the last chance saloon, they're hammering the phone lines like crazy cold calling people to make PI claims. The adverts for no win no fee claim firms on daytime telly don't help either. Especially when they're shown on a huge widescreen television in the lobby of large insurance companies. Ahem.

Dashboard and helmet cams would be handy too. May well be cost effective even in the medium term for the insurance companies to dole these out for free with every renewal. In the long term is a no brainer.

posted by Argos74 [127 posts]
18th April 2013 - 4:14

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neildmoss wrote:

I _cycled_ through a red light unintentionally through lack of attention. I wanted to highlight that, had I collided with a car, the driver would be presumed to be liable.

Nope. It tends to be implemented as a rebuttable presumption of liability.

If the driver shows you threw yourself under his/her wheels, they're not liable.

You can also argue (correctly) that a green light means "Go if it is clear" not "Bugger on through the light regardless whilst tuning the radio and trying to read a text". That's kept me from being flattened by (usually motorised) road users a great many times, as they ignored their red light and blithely carried on across pelican crossings or junctions where I had the green light to proceed. That's probably a digression too far at this point.

--
"Tant que je respire, j'attaque!"

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posted by John_the_Monkey [410 posts]
18th April 2013 - 9:27

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Naysayers, I'd not worry too much - the mail and the rest of the tabloids will scream "WHAT HAPPENED TO INNOCENT UNTIL PROVEN GUILTY" bang on about the "War on the Motorist" and this won't have cats chance of getting into law.

--
"Tant que je respire, j'attaque!"

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posted by John_the_Monkey [410 posts]
18th April 2013 - 9:30

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vbvb wrote:
It works fine all over Europe, saves time, lowers lawyer fees, and so reduces car insurance costs. The only issue is voter ignorance.

I agree, but I'm thinking more in the space of cultural differences. See UK binge drinking, compensation culture etc for ref. I know it's woolly as anything, but I've just got a feeling.

Dodging the saccadic masking

posted by notfastenough [2327 posts]
18th April 2013 - 9:52

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John_the_Monkey wrote:
Naysayers, I'd not worry too much - the mail and the rest of the tabloids will scream "WHAT HAPPENED TO INNOCENT UNTIL PROVEN GUILTY" bang on about the "War on the Motorist" and this won't have cats chance of getting into law.

Luckily you can fit the entire Scottish readership of the Daily Fail into a phone box without taking the drunk trying to p*ss in there out first!

Combine that with the fact the Faily Record and the Scottish Sun are so focussed on celeb stories and it might just get a fair hearing

posted by mad_scot_rider [492 posts]
18th April 2013 - 11:45

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mad_scot_rider wrote:
Luckily you can fit the entire Scottish readership of the Daily Fail into a phone box without taking the drunk trying to p*ss in there out first!

Combine that with the fact the Faily Record and the Scottish Sun are so focussed on celeb stories and it might just get a fair hearing


Well, I wish you a following wind with this one, and hope that you'll remember us here in backwards old England if it does pass... Wink

--
"Tant que je respire, j'attaque!"

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posted by John_the_Monkey [410 posts]
18th April 2013 - 11:55

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neildmoss wrote:
@mrmo - To clarify my post - the situations I described were idiot moments I had whilst riding a bike, _not_ whilst driving a car.

I _cycled_ through a red light unintentionally through lack of attention. I wanted to highlight that, had I collided with a car, the driver would be presumed to be liable.

That just seems wrong to me.

No, in the case that you ran a red light it would be easy for the driver to prove he was innocent of wrong doing and that it was you who had broken the law and put yourself in danger. The point behind this sort law is that the onus is on the "more dangerous vehicle" to exercise care and prevent accidents from happening with "weaker" road users. If they do occur, then the responsibility of the accident lies with the "more dangerous vehicle" unless the other road user broke a law that put them in harms way. In other countries, this protect cars from lorry on the motorway which just pull out into your lane without looking, it protect cyclists from cars who pass too close when over taking, and it protects pedestrians on cycle paths from cyclists who fly around blind corners into the backs of pedestrians. If you share the road/path with "weaker" users, it is your responsibility not to injure them. If there is an accident, you have failed that responsibility unless you can not show that the other user had instead caused the accident through a disregard of a law. In my experience at least, I felt safer driving on the autobahn, being a cyclist and pedestrian when living in Germany that I do in the UK. This law, and the attitude change it creates in road users minds has a large part to do with that IMHO.

posted by maldin [23 posts]
8th May 2013 - 10:12

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