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Cyclist who couldn't remember being mown down and neck broken 'denied justice'

No prosecution because head injury meant cyclist was unable to give evidence

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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