The case for Stricter liability - Parliamentary Reception Dec 2014
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Brenda Mitchell, founder of Cycle Law Scotland and the Road Share Campaign presents the case for Stricter (Presumed) Liability in Civil Law claims following a road traffic collision involving a motor vehicle and a cyclist or a cyclist and a pedestrian.
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The case for Stricter liability - Parliamentary Reception Dec 2014
- 4. What we are proposing
- 5. Benefits
- 8. CAPS 2010 ACTION 12 To undertake a legislative search to reveal the operation of liability Laws and how they work in other countries in Europe and around the World, and whether there is robust evidence of a direct link to levels of cycling and KSIs.
- 9. CAPS 2010 – OUTCOME 12 To undertake a legislative search to reveal the operation of liability Laws and how they work in other countries in Europe and around the World, and whether there is robust evidence of a direct link to levels of cycling and KSIs . A comprehensive report on liability laws and how they affect cycling
- 10. CAPS 2010 – ACTION 13 To try and identify what kind of hierarchy, if any, might be established and develop an educational awareness campaign for all road users.
- 11. CAPS 2010 – OUTCOME 13 To try and identify what kind of hierarchy, if any, might be established and develop an educational awareness campaign for all road users. A reduction in the rate of cyclist KSIs
- 12. CAPS Refresh 2013 Transport Scotland carried out a desk based review looking at the basic impact of strict liability legislation in a number of European Countries and concluded that… “The available data does not supply robust evidence of a direct causal link between SL legislation to levels of cycling and KSIs when countries like the UK are clearly reducing fatalities in cyclists.”
- 13. "In virtually every collision between a car and vulnerable road user, it will be the pedestrian or the cyclist who is injured. I fail to see how anyone who accepts that cyclists have an equal right to be on our roads cannot support the introduction of legal safeguards that address the imbalance.” John Lamont MSP
- 15. "Although I am supportive of nearly all the statements that are made in the motion, I cannot support it in its current form, given the lack of robust evidence that stricter liability could have positive benefits for vulnerable road users. However, there will continue to be debate on the issue, in which we will continue to participate."
Notas do Editor
- The Road Share campaign was launchedin April 2013 by Cycle Law Scotland to encourage the Scottish Government to introduce a system of stricter liability in Scots civil law to give protection to vulnerable road users (cyclists and pedestrians.)
- Before I discuss the campaign, I feel I should give you all some background about myself and Cycle Law Scotland. Cycle Law Scotland was founded in 2011 as a joint-venture with Thompsons Solicitors who have a long established background in campaigning and were recognised by the legal profession at this year's Law awards by winning “Firm of the Year.”At the same awards, I was fortunate enough to win “Solicitor of the Year” for 2013. On that point, there are lots of references nowadays to cycle Lawyers and whether cyclists need a brand of lawyers just for them. My answer to that is quite simply “yes, they do”. The Legal profession is a powerful one but only if it assists in bringingabout change for the better. Our campaign goes hand-in-hand with promoting cycle safety and educating the public. Every day we are exposed to human suffering. Cyclists rarely suffer minor whiplash, they predominately suffer severe upper limb fractures. Chris Oliver, Orthopaedic surgeon and immediate past Chairman of CTC Scotland, is here tonight and in a recently published article, he confirmed that whilst he loved his job, he was growing tired of fixing broken cyclists. The legal profession needs to give something back. Stricter liability in civil law is the proper approach for a mature socially conscious nation as it addresses the unacceptable human cost of the current system. So where does Scotland and the UK sit within Europe as far as Strict Liability regimes are concerned?
- Well, we are one of only five countrieswho currently have no regime in place for cyclists or pedestrians. The others are Cyprus, Malta, Romania, and Ireland. Are we keeping good company? Not really, other nations across the world also have strict liability regimes including Australia, New Zealand, India, Bangladesh and China for the past 10 years.Looking at Europe, Germany introduced strict liability in the early 20th century, Italy in 1969, Denmark in the mid 80s, France in 1985 and the Netherlands in the 1990s.We are not behind the curve, we are decades behind the curve! When youconsider why countries such as Denmark and France, for example, introduced stricter liability regimes, it was in direct response to a needto reduce road traffic collisions involving cyclists and pedestrians. It is important to note that not all regimes were created equally and the regimes do vary.
- So, what are we proposing for Scotland?One of the remarkable achievements of RomanJurisprudencewas the development of no-fault liability or, in other words, strict liability. This is where a person is held liable, not for his failure to display the diligence of a reasonable man, because he is in control of an object of danger to another's life, health or property.The concept behind strict liability is quite simple. It's designed to protect the vulnerable. However, it has to operate as part of a package of measures.What we propose is presumed liability for the 14 to 70 age group.A driver would be presumed liable in civil law to compensate an injured cyclist or pedestrianif he collides with and injures them.Equally, a cyclist in civil law would be presumed liable and have to compensate a pedestrian should they collide with andinjure them.In other words, liability will attach but it is always open to a driver or cyclist to allegefault on the part of the injured individual.Further protection however must be put in place for those who are even more vulnerable i.e. children under the age of 14 and the elderly over the age of 70. In these instances, we propose the motorist or cyclist is deemed liable. In other words, liability will attach with severe restrictions on allegations of contributory negligence.The questions you may well ask are as follows:“Is there a fair and proportionate basis for any special legal protection of vulnerable road users and would it ultimately be conducive to a policy of encouraging more people to take to the road on bikes?Would it encourage drivers to be more careful?Our answer to both of these questions is, “yes,absolutely.”
- So what are the benefits?It is clear that in those nations with high rates of cycling and high levels of cycle safety, stricter liability exists as part of a kaleidoscope of policies designed to enable safe cycling.It leads to a culture of mutual respect.The Scottish Government has confirmed to us that cycling is fun, is healthy, is virtually free, and is the cheapest form of transport.It helps maintain a healthy mind and body but people will only take to cycling if they feel safe and right now safety, or a perception cycling is unsafe, is the single most importantfactor that stops individuals from taking to the roads.Ask yourself the question.Would you be happy with your children cycling to school in the city centre?Do you feel secure and safe when you cycle on “A” roads?I wouldn’t.There is a need for change
- We never said thiswould be easy. As Alison reminded me at the Heels ‘n’ Wheels event during the Edinburgh Festival of Cyclinglast Summer, she said, “This is going to be a marathon not a sprint.”
- Where did this idea of stricter liability in Civil Law come from?It’s not a mad cap Idea from Road Share. It was embedded in the Cycling Action Plan for Scotland, which was initially published in 2010. It set out a vision to get 10% of all journeys by bike by 2020.The action plan was structured around key issues that emerged from the Scottish Government’s consultations held throughout 2008 and 2009 and it set out a framework to achieve that vision.It also set out what the Scottish government will do.I say, “will do.”Powerful stuff
- Let’s have a look at thetwo separate action points which specifically related to Strict Liability.Action point 12 was as follows: To undertake a legislative search to reveal the operation of liabilityLaws and how they work in other countries in Europe and around the World, and whether there is robust evidence of a direct link to levels of cycling and KSIs.
- The outcome expected from Action Point 12 was to be…A comprehensive report on liability laws and how they affect cycling.
- The second action point related to Strict liability was as follows:-To try and identify what kind of hierarchy, if any, might beestablished and develop an educational awareness campaign for all road users.
- The outcome expected from Action point 13 was to be….A reduction in the rate of cyclist KSIs
- So what happened and what did the Government do?Well, these action points sat on the back burner until the summer of 2013 when there was a refresh of the cycle action plan for Scotland. Cycle Law Scotland contributed to the refresh based on research we had carried out earlier in the year. Somewhat disappointingly, however, Transport Scotland confirmed that they had carried out their own desk based review looking at the basic impact of strict liability legislation in a number of European countries.They concluded that “the available data did not supply robust evidence of a direct causal link between strict liability legislation to levels of cycling and KSIswhen countries like the UK are clearly reducing fatalities in cyclists.”Now, no one here needs to be reminded that this year alone 12 cyclists have died on our roads.Spokes have conducted research which shows that from around 2005 there has been a divergence with motorists’ injuries reducing yet cyclists’ injuries increasing.At the same time, evidence appears to show that cycling in general has not increased so therefore something has gone wrong.I would also like to remind you once againof what CAPs 2010 proposed.It committed the Scottish Government to carry out a comprehensive legislative search, not a basic desktop search.It also committed the Scottish Government to a comprehensive search of the operation of liability laws in other countries in Europe and around the world.As far as I can see, the desk based review (4 page document) looked at only five European countries.Sadly, in the summer of 2013, the headlines in all the newspapers confirmed the Scottish Government had dismissed strict liability.It looked like the end of the road and all we got was a Nice Way Code!So, was this the end of the road?
- No it wasn’t. Thanks to brave MSP's and in particular, Alison Johnstone, the idea survived.Support was growing from across the political spectrum.On 29th October this year, one of the longest business debates ever held took place at Holyrood.Many MSPs spoke out in favour of the proposal to continue to debate the issue of stricter liability. Many spoke passionately but required further information and others were wholly against the idea.However, I would like to quote Conservative MSP, John Lamont, who summed things up nicely when he said,“In virtually every collision between a car and vulnerable road user, it will be the pedestrian or the cyclist who is injured. I fail to see how anyone who accepts that cyclists have an equal right to be on our roads, cannot support the introduction of legal safeguards that address the imbalance.”
- I mentioned the growing support across the political spectrum.These include Jean Urqhuart, Tavish Scott, Alison Johnstone, John Lamont, Richard Lyle and many many more who have come out in support. They are not the only ones. Over 5350 individuals have signed our petition calling for the Scottish Government to introduce a stricter liability regime.There is support from numerous individuals including Nick Nairn, Cameron McNeish, Lesley Riddock, Karen Darke and from Cycling organisations like The Bike Station, Edinburgh Bicycle Cooperative, CTC Scotland. Spokes, Pedal on Parliament and most recentlyScottish Cycling and its 12,500 members.There are so many more and all your support is greatly appreciated. However, I would like to thank in particular, Scott Hastings, as I know that during the course of his rugby career he met with some brutal opposition but nothing could have prepared him for the “Call Kaye phone in.” Well done Scott!So with all this support ,is there hope?
- At the end of the debate these were Keith Brown, Transport Minister’s words.“Although I am supportive of nearly all the statements that are made in the motion, I cannot support it in its current form, given the lack of robust evidence that stricter liability could have positive benefits for vulnerable road users. However, there will continue to be debate on the issue, in which we will continue to participate.”I am pleased that he has committed the Scottish Government to continue to be involved in debate and the Scottish government will continue to be a participant.What I am disappointed about, however, is his reference to a lack of robust evidence when I'm not convinced that Transport Scotland actually completed the comprehensive research they committed to back in 2010.Here is just one example…
- Sometimes, it is good to look at an example.Prior to 1985, France had a fault based system. Ihave never particularly thought of the French as being a safety conscious nation and you can see herethe example of traffic attempting to navigate the Arc de Triomphe – chaos!In 1985, there was a wholesale shift over to Strict liability where a driver is liable to compensate a cyclist or pedestrian if they collide with and injurethem. There is no defence of unavoidable accident and there are severe restrictions on allegations of contributory negligence. So what effect did this have?There is no denying that bicycle safety has improved markedly and figures from the OECD, being the latest statistics published in 2012, confirmed that the fatality rate for cyclists fell by 66% from 1990.Granted,there had been general improvements in road safety and you cannot isolate strict liability as being the sole cause of that significant reduction, but it did play a role.In the Netherlands, it is three times safer to cycle compared to the UK.We do accept this is hard to isolate but as the law serves to tighten restrictions around road accident liability, it has not harmed but rather has improved general awareness and safety.So, what’s wrong with a fault based system?
- Fault based is the current system whereby it is necessary to establish negligence before being awarded compensation.What we are suggesting is that with the introduction of stricter liability, the current system would be greatly improved.At present no account is taken of vulnerability to injury.The concept of strict liability is not unusual in Scots law and exists, for example, in consumer protection and control of animals. Furthermore, it did exist in the workplace regulations until the dreadful Enterprise and Regulatory Act in 2013. Perhaps, these 2 case examples will help to explain the problem…Jamie AaronsJamie was cycling to the gym when a taxi driver swung his door open in front of her. She didn’t have time to take evasive action and went over the handlebars, ending up shaken and sore but only too aware it could have been much worse. The taxi driver was very apologetic, picked up her bike and gave her his mobile number but she didn’t make a note of the taxi’s registration number. To be honest, as it was dark and she wasn’t familiar with the area, she simply wanted to continue her journey. When she arrived at the gym, as well as her neck and back being very painful, she realised she had extensive bruising on her left arm and right hip. However, she was still being very philosophical about everything. After all, it had been an accident. As her bike had taken a bad hit, she decided to get it checked and discovered the frame had been broken by the taxi door. She called the taxi driver to let him know – and that’s when he turned nasty. He was very aggressive and said it was her fault and he was going to sue her for hitting his taxi when shefell off her bike. He said he had 5 witnesses who would testify that Jamie rode into his taxi’s door. Ten months later after an action was raised in Court, his insurers agreed to settle the case.If Stricter liability applied, the taxi driver would be presumed liable unless he could establish otherwise and it's unlikely that Jamie's case would ever have gone to the lengthy and protracted litigation.AndrewMcNicollAndrew McNicoll lost his life in a road traffic collision when he was cycling to work in early January 2012.The driver of an LGV vehicle has been charged and atrial date has been set for March 2014.The Policecompleted a full collision investigation and submitted that report to the Procurator Fiscal.That report has been made available to the legal representatives of the driver alleged to be criminally responsible for Andrew's death.Thatreport and any information gathered by the Procurator Fiscal has not been exhibited to the family and will not be exhibited to the family’s civil legal representative until after the criminal trial.In other words, the family are denied access to justice pending the outcome of a criminal trial.If Stricter liability applied, the driver would be presumed liable unless he could establish otherwise.In other words, the civil claim for compensation would not have been delayed pending the outcome of any criminal prosecution.
- So, wheredo we go from here?Whilst we are reassured that KeithBrown is prepared to commit the Scottish Government to continue the debate on the issue, we need more than just debate.A working party/steering group needs to be set up and it should commission the robust research as outlined in CAPS 2010We need to do more if we are to achieve that vision of 10% of journeys by bicycle by 2020.Scotland should take the lead.There is huge support for this.The time has come for Scotland to grasp the thistle and take the lead.We are a nation that has always sought to protect the vulnerableWe are a brave and bold nation.Now, with all that talk of bravery and thistles, don't be alarmed at the next slide.
- For those of you who have just taken a sharp intake of breath, this is not a map of Europe as of 19 September 2014!Is a map of how Europe could look if our politicians and the Scottish Government seriously consider this issue and commit us to joining the rest of our European neighbours who have for decades been prepared to protect the vulnerable and thereby cement our place as a cycling friendly nation.