The Roadshare Campaign for presumed liability in Scotland

[N.B. You can now also read the transcript of the debate, as well as CTC's commentary and summary.]

According to data from Transport Scotland, there were 901 total cyclist casualties in 2012, up 9% from 2011. Of these, 167 were seriously injured, representing an increase of 7% from the previous year. 9 cyclists were also tragically killed in 2012, up from 7 in 2011. This 2013, year, 12 cyclists have died on Scottish roads despite a background of declining casualty figures for other modes of transport.

In April 2013 Cycle Law Scotland launched Road Share, The Campaign for Stricter Liability for the protection of cyclists and other vulnerable road users who are involved in road traffic collisions. Brenda Mitchell, Solicitor of the year in Scotland for 2013 has led this campaign.

CTC's view is that the UK should introduce ‘presumed liability’ rules to compensate cyclists and pedestrians for road crash injuries, as is normal in most west European countries. They should be entitled to full compensation from the driver’s insurance unless the driver (or in practice their lawyers/insurers) can show that the injury was caused by the cyclist or pedestrian behaving in a way that fell well below the standard that could be expected of them, taking account of their age, abilities and the circumstances of the collision. CTC's statement on "presumed liability" is here. There is a little difference in the nomenclature of "stricter" and "presumed" liability still to be debated.

As chairman of CTC Scotland I have interviewed Brenda Mitchell about her views. Firstly, it must be said that its a significant event in cycling and walking to have this parliamentary debate, Brenda must be congratulated for getting the process so far. You can get tickets for the debate on 29th October here. Brenda Mitchell says: "Under stricter liability, the motorist would be presumed liable in a Civil Law claim against them for injury, damage or loss if involved in a collision with a cyclist or pedestrian. It would still be open to the motorist to allege fault on the part of the vulnerable road user. The same would apply to cyclists involved in collisions with pedestrians. What effectively occurs is to shift the burden or onus of proof from the vulnerable to the powerful. If the injured party is under 14, over 70 or disabled, then the driver or cyclist would be deemed liable with an opportunity open to them to establish part fault if the injured party did something dangerous or reckless thereby contributing to their own injury or loss.  This is so that we ensure the most vulnerable of our road users are afforded maximum protection while making sure drivers have a fair chance to present mitigating evidence".

The Road Share campaign has experienced an increasing groundswell of support since its launch in April 2013 with cycling organisations, driving schools and celebrities lending their support.  This includes the cycling groups Pedal on Parliament, SPOKES and CTC Scotland; the Bike Station and Edinburgh Bicycle Co-operative; the driving schools RED and Pro-Scot; celebrity chef Nick Nairn, adventurer Cameron McNeish, former rugby star Scott Hastings and his wife Jenny, media commentator Lesley Riddoch, Consultant orthopaedic trauma surgeon Chris Oliver and Paralympic cyclist Karen Darke.  The online petition calling for the introduction of a presumed liability regime to Scotland has received over 5,000 signatures.

Impact of presumed liability according to Roadshare

The impact of introducing presumed liability for road traffic collisions could be significant, if there was political will.

• Cyclists and pedestrians will receive just recompense far quicker than in the present situation and will, more importantly, have access to full rehabilitative and similar services to get their lives back on track and back on the road as quickly as possible.
• Injured cyclists and pedestrians will therefore be less of a burden on the public purse in terms of the cost of health care, social security and similar benefits.
• One of the most important impacts will be an educational one – adopting presumed liability for road traffic collisions would send out a clear message as to the importance of drivers keeping a proper look out for pedestrians and cyclists and the roads will become safer for all.
• The roads would probably not only be safer but feel safer too, encouraging more pedestrians or cyclists to use the roads, with consequent benefits to public health and the environment.

Introducing presumed liability to Scots Civil Law would help promote the idea of Scotland as a cycle-friendly nation and show Scotland leading the UK in cycle-safety. Scotland would also catch up with our European neighbours, given that most western European nations operate presumed liability rules in some form or other (the only exceptions are the UK, Ireland, Cyprus and Malta). It must be said that most west-European countries adopted the principle of 'presumed liability' many decades ago (e.g. see the pages on German and French road traffic law on the 'Finding Fault' website - the German page also covers the Netherlands). There are in any case plenty of other differences between the UK and its continental neighbours that affect pedestrian and cycle safety.  This makes it difficult to prove the safety benefits of presumed liability beyond reasonable doubt.  However it is surely no coincidence that non-motorised travel is safest in countries where the 'presumed liability' principle is applied most strongly.

Presumed liability is in any case not a foreign concept in Scotland.  Indeed, it can be found in Consumer Protection Regulations and Regulations concerning the control of dangerous animals. Cycle Law Scotland’s proposal for presumed liability would therefore merely extend a well-used legal tool designed to protect the vulnerable from the powerful.

Nor wold the principle of ‘innocent until proven guilty’ be affected by the proposals. This principle is rightly the bedrock of Criminal Law system. However the principle of 'presumed liability' that CTC and others are calling for would only apply to civil compensation.  Criminal liability would still be determined in the same way as at present.

The idea that presumed liability for road traffic collisions would create a compensation culture is not borne out by the facts.  The findings of the Scottish Government’s own Taylor Review of Expenses and Funding of Civil Litigation in Scotland establish that such a culture is simply close to non-existent in Scotland, to the great credit of Scots. For example, it found that though Scotland has 1/10th of the population south of the border, it only accounts for around 4% of the number of motor claims. With respect to all liabilities, the number of claims in Scotland was also found to be considerably lower than would be expected for a country with 1/10th the population of England. The Review concluded, “even if a ‘compensation culture’ had taken hold in England and Wales, the data for Scotland did not disclose evidence of its appearance in Scotland”.

Scotland has not been shy in taking strong action in devolved areas to create a more inclusive, safer and healthier society. It would be well within the power of the Scottish Parliament to extend the protections afforded by presumed liability rules to vulnerable road users through a change in Scots Civil Law. Amending Scots Law is a devolved matter and does not conflict with UK road safety legislation. So it great credit to Cycle Law that the debate has been raised. We may even see a Bill raised before the Scottish Parliament in due course. CTC Scotland certainly welcomes the Holyrood debate

Dr Chris Oliver
Chairman CTC Scotland
chris.oliver@ctc.org.uk
Twitter @cyclingsurgeon