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broken bike.jpgCyclist who couldn't remember being mown down and neck broken 'denied justice'
A cyclist who was left in a critical state by an elderly driver who hit her with his car has said that she was denied justice when he escaped without sanction.
Jennifer Wallace was riding on a road in the Scottish Borders when she was hit, suffering ten broken bones in her neck and spine, a collapsed lung, broken ribs, and a head injury that left her with no memory of events. An initial police report described Ms Wallace’s injuries as “slight”, according to the Times.
The lack of recollection meant that the procurator fiscal ruled out a criminal prosecution and the driver's insurer fought against a civil claim, something Ms Wallace said could be prevented with a system of presumed liability.
There is already a campaign for presumed liability in the UK, in which the motorist is considered to be liable under civil (but not criminal) law unless proven otherwise.
She said: “I don’t want anybody else to have to go through this level of emotional and physical trauma.
“I was the one who was seriously hurt and yet I was made to feel worthless by the police and the insurers.”
Ms Wallace spent her 49th birthday in intensive care, but has managed to return to cycling.
She said: “Introducing a system of presumed liability could be the catalyst for all road users to think differently when they get into their cars and for everyone to think about the person and the injuries caused, not about attributing blame.”
Solicitor Brenda Mitchell, founder of Cycle Law Scotland, believes the fault-based system should be scrapped.
“Because it is up to the cyclist to prove, on the balance of probability, the driver’s negligence, it is often the case that a large insurer will sit back and say ‘prove it’,” she said.
“A system of presumed liability in civil law, which puts the vulnerable victims of road traffic collisions first, would remove the adversarial nature of claims, speed up the process and ultimately lead to less litigation.”
Back in 2014 we reported how relatives of two cyclists killed on Scotland’s roads added their voices to a campaign calling on the Scottish Government to bring in a system of presumed liability under the country’s civil law for road traffic incidents including those in which a bike rider is the victim.
The system, which operates in all but five member states of the European Union, provides for a presumption of liability on for example a motorist involved in a collision with a more vulnerable road user such as a cyclist, unless the latter can be shown to have been at fault.
In the absence of such a system under Scots law, the families of Andrew McNicoll, who died in Edinburgh in January 2012 following a collision with a lorry, and Sally Low, who lost her life after a collision with a car in Moray last year, have to show the driver was at fault in the civil cases they have brought.
Brenda Mitchell spoke of the financial and emotional strain that the current system put victims’ families under.
"Being unable to pursue a claim for compensation until after a criminal prosecution is completed can cause extreme distress and severe financial hardship," she said.
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23 comments
Most cars have an array of sensors fitted to the windscreen for auto-dimming lights, auto-wipers and even cameras for autopilot mode, but no manufacturer has yet stuck a dashcam in there...
I'm soon going to be commuting by car past Cambridge and the horrendous Bar Hill section that is practically a car park, and eve though I will get a company car, I will definitely be getting a dashcam to prevent points on my license and trouble with the law.
I guess the biggest issue is that they are illegal in Austria and Luxembourg, but it could be pretty easy for the manufacturer to have a tick-box on the configurator when ordering the car or to check from the VIN whether a secondhand car has one fitted as standard?
Then again, a cyclist was hit from behind in Nottingham the other year, they had the whole thing on camera from a rear mounted cam, but they couldnt identify the driver, despite only two people being registered to hire the hire-car. We need a new law to compel people to reveal who was driving, and if they refuse, split the sentence between them!
We already have a law compelling people to reveal the driver. It's just that the penalty is pathetic because it contemplates a car speeding or going through a red light, not hitting somebody. What is needed is for the penalty to be the same as the offence that the unidentified driver committed.
It's not really relevant in this case but something I've never understood, & maybe someone on here can explain it, is why isn't SMIDSY taken as de facto admission of driving without due care & attention? I know I'm being dense, but I'd have thought if something's there, right in front of me & plainly visible but I don't see it, I'm not paying sufficient attention. Obviously I'm wrong about this, the Michael Mason case demonstrates that, but why? What am I missing here?
I think SMIDSY should be used as admission of fault. However, it seems to be used as an appeal to the jury of the human fallibility of the driver and as most juries are drivers, they tend to sympathise as they appreciate that it's an easy mistake to make.
In my mind, there's some situations when it's appropriate to invoke SMIDSY - when the driver is generally driving safely and makes a genuine mistake. However, it shouldn't be allowed if they're using their phone, speeding or performing a maneouvre without using their mirrors.
I think the difference is whether they tried to look or not. After all, everyone makes mistakes from time to time, so the trick is to avoid the predictable mistakes as much as possible. The other thing to consider is what the possible result of the mistake could be - it's much better to make a mistake that results in delaying/annoying other road users than to possibly injure someone.
The interesting point about this is that the driver has clearly been identified. Given that a lack of evidence is the reason for no charge, it seems likely that there were no independent witnesses. I also note that there is no charge of failing to stop (assuming Scotland has that offence).
While the reports are inconclusive on the point, it seems likely that the driver stopped and waited. Presumably he gave an account to the police as to what happened and unless there's something demonstrably wrong in that account, it's going to be difficult to disprove it.
And in another police station out there in the world, a fly on the wall is listening in:
"So Constable, what happened?"
"Well Sarge, it's difficult to say. The cyclist's back wheel was crushed, the back end was mangled, and his brains were splattered all over the windscreen. There's damage to the car's front bumper, and bits of the bike were lodged in the grille."
"I see, Constable, I see. Impossible to say what the actual circumstances of the accident where, you think?"
"Absolutely sir, impossible."
"Better play safe than sorry, put it down as an accident, one of these things that couldn't be helped. Another digestive Constable?"
"Ooh yes please sir!"
And in that scenario, you presumably have some knowledge as to whether the car ran into the back of the bike or the bike swerved into the car's path?
And before you come out with some trite nonsense about how that just couldn't possibly happen, I've seen the 50+ page expert reconstruction and spent two days listening to the eye witness evidence of how exactly that has happened. It's not common but it happens.
I can't find a report which give the driver's name, but the reports of the police investigations, pural, and their description of the injuries as "slight" fill me with concern.
Who was the driver and just who did they know?
I think to police got it a bit wrong, describing injuries a "slight" when she was in intensive care shows some error.
Don't the scots have a "Not proven"? when it comes to guilty or not guilty.
It's not that you need victim evidence. You just need some evidence of what happened. In a murder case somebody is dead and you will need some evidence of who killed them and how. In this case you need some evidence of who hit her and in what circumstances. To sustain charge of causing injury by careless or dangerous driving you need to prove the bad driving. Without her evidence or anybody else's you might struggle to prove that it wasn't her fault (or some other person's).
That's assuming that Scots law matches ours in this situation.
I'd happily pay a little to subsidise old codgers into driverless cars. I'd include my mother in that as well as she spends more time looking at who she's talking to rather than at the road.
This case seems a bit of shambles though. As has been mentioned, surely ever murder case in Scotland will collapse based on this nonsense.
A classic case of where presumed liability is needed to take care of compensation for the victim, irrespective of any prosecution of the driver which is, or should be considered, a different matter entirely.
If vehicle manufacturers can add DRLS to cars then surely dashcams could be added too?
However, unless it was law to actually use them for 100% of journeys....
Then we get into 'big brother' scenarios...
Likewise for cyclists... (worst case scenario) embedded hardware would be a nightmare....camera goes fubar and it's a new bike?
Cycling cam ninjas are already looked upon with total disdain...some even accused of provoking vehicle drivers in order to obtain certain types of footage.
It's not an easy fix...but presumed liability is better (an easier stop gap solution?) than the current situation described herein.
I don't think any cyclist would go out of their way to get run over and injured just to make a claim! That's nonsense. Presumed liability already works well in most of Europe and would also give pedestrians better protection.
Maybe drivers would be a lot more careful if they knew they'd have to prove that a cyclist was in the wrong. I think the vast majority of cases it's pretty clear cut anyway. "Sorry mate I didn't see you!"
Welcome to Earth, watch out for the human animals.
Insurance scammers will do absolutely anything if they think a jackpot settlement is in it for them. Ever seen the Youtube videos of pedestrains jumping in front of moving vehicles? It's a thing.
It would be very useful if Dash cams were to be made a legal requirement for all bikes & cars. Buses/Lorries/Motorbikes too. Not sure how easy it would be to implement but I believe it would cut down on a lot of accidents, and provide crucial evidence where accidents like this do happen. As it stands, the law is not just an ass, the law is a farce, joke, not fit for purpose in its current form
Not sure it would work for bikes as there's different requirements and thus more expensive. They'd need to be waterproof, shock-resistant and battery powered which would also make them heavier. If all the cars and lorries have them, then there would be less need for bikes to have them. I'm surprised that insurance companies don't encourage their use - cams should provide quick and easy answers to most liability questions.
Yes, we should completely throw out our entire justice system and replace it with it a new system where you have to prove you are innocent just because you own the larger vehicle. And in the meantime I expect the quality of cycling to hugely improve when you tell every cyclist that in the event of an accident, regardless of their beahviour they are guaranteed an ambulance chasing lawyer who will get them a payout.
*Note the above was intended as sarcasm but I feel the audience on road.cc may actually be so ridiculously militant about cyclist behaviour that it is necessary to point it out rather than have someone consider it as a sane statement.*
Surely dashcams would prevent that. Presumed liability is in lieu of evidence, so if you've got footage of a cyclist not following road etiquette and then subsequently causes an incident, you don't get the blame. It's when there's no evidence that it makes sense to presume that the motorists caused the incident as the statistics show that the majority of incidents are caused by motorists and not cyclists. Presumed Liability is entirely logical.
Having a dash cam is not enforced because of issues with technology and privacy - remember it's not just others in control of vehicles you are filming - however insurers do actually encourage it.
Most collisions don't go to court they are settled by the insurer and having dash cam footage helps them show their client isn't at fault so they won't be paying out. It also helps them with in cases of fraud e.g. crash for cash.
However you should be aware that are not required to have an insurance policy if you have sufficient funds to cover yourself or more likely your fleet of buses/HGVs. http://www.legislation.gov.uk/ukpga/1988/52/section/144
So it is standard now for many newer buses used for public transport to have multiple cameras on them to protect the bus company from claims from passengers as well as other road users.
Newer HGVs have cameras on them as well. Otherwise we woudn't have had this footage - https://www.theguardian.com/uk-news/2016/oct/31/lorry-driver-distracted-...
Presumed liability makes so much sense. If drivers are worried about it, they can easily buy a cheap dashcam to ensure they have evidence (it's easier for drivers to keep a dashcam running as it doesn't need to be waterproof/lightweight/battery powered). I would imagine that the insurance companies would provide discounts for dashcam usage should presumed liability ever happen in this country (unlikely with the Daily Mail mentality of a lot of people).
This is a mismatch of so many different things. There's nothing at all to stop her bringing a civil claim. Or does she mean private prosecution? In which case they rarely happen at all.
"a head injury that left her with no memory of events. The lack of recollection meant that the procurator fiscal ruled out a criminal prosecution"
That is outrageous. No testimony from the victim doesn't preclude a prosecution otherwise most murder cases wouldn't get very far.
"procurator fiscal ruled out a criminal prosecution - something Ms Wallace said could be prevented with a system of presumed liability."
The way this is written makes it seem like Ms Wallace thinks presumed liability would ensure the driver was prosecuted but in fact she is talking about her insurance claim for damages which the insurance company took 18 months & for Ms Wallace to begin civil proceedings before they settled.