A hierarchy of strict liability in favour of vulnerable road users offers Scotland the chance to lead the UK on cycle safety

Despite ambitions to the contrary, the UK is not yet a cycle-friendly nation. It was not long ago, for instance, that Jeremy Clarkson, bête noire of the cycling community, said on TV that cyclists “deserve” the abuse they receive from drivers.

Though this statement clearly doesn’t reflect the opinion of all drivers in Britain, it is nonetheless representative of an unfortunate strain of thought that continues to regard cyclists as something of a menace on the roads and undeserving of sympathy.

In Scotland, cyclist safety has reached a critical point. According to Transport Scotland, 817 cyclists were injured on Scotland’s roads in 2011, the last year for which data are available. Of these, 156 were seriously injured, representing an increase of 13% from 2010 and of 34% from the recent low point in 2005. Add to this the seven cyclists that were tragically killed on our roads in 2011 and you can see that something desperately needs to be done to protect vulnerable road users.

That is why last month Cycle Law Scotland launched a campaign with the support of SPOKES, CTC Scotland, the driving school RED and others to change Scots civil law to introduce strict liability for the protection of cyclists and other vulnerable road users who are involved in road traffic accidents. This simple and cost effective, yet powerful, change to the current law is designed to protect the most vulnerable road users and to reflect a road user hierarchy based on mutual respect between motorists, cyclists and pedestrians.

Already commonplace in most European countries, under strict liability, when a cyclist is injured by a motorised vehicle, the motorist is liable. Likewise, when a pedestrian is injured by a cyclist the cyclist is liable in civil law.

In practice, this means that before any damages are awarded, a cyclist will need to establish that there was a collision with a motorised vehicle, the defender was driving and that injuries and loss were sustained as a result of that collision. After causation has been established damages can be assessed. Strict liability regimes can still allow for the concept of a reduction in damages to reflect contributory negligence on the part of the injured party.

Far from suggestions that a strict liability regime would drive a further wedge between cyclists and motorists, this system will help reorient road user attitudes from those based on conflict to those based on respect, as is evidenced in many European countries with such a system already in place. As the fear of cycling on the road is one of the main obstacles keeping Scotland from boosting its cycling rates, such a culture shift is absolutely necessary if we are to realise our ambitions of becoming a cycling nation.

The case for strict liability is clear. I believe that while the Scottish Government is increasingly encouraging more people to take up cycling, it must also provide adequate legal protection for those venturing out on our roads. Strict liability in civil law is the proper approach for a mature, socially conscious nation, as it addresses the unacceptable human impact of the current system where injured cyclists or their families can expect to wait months or even years to receive compensation. With a system of strict liability in place, injured cyclists or pedestrians would be able to receive just recompense far quicker than is the case currently, and be able to get their lives back on track and them back on the roads as quickly as possible.

As a personal injury solicitor with 25 years of experience, I know first-hand the shortcomings of the present fault-based system. In nations with high rates of cycling, strict liability is seen as a crucial part of a kaleidoscope of measures designed to protect the safety of vulnerable road users including cyclists on roads shared with motorised vehicles. Despite this, the UK is currently one of only a small number of countries in Europe that does not operate a system of strict liability for road users.

Scotland must grasp this opportunity to be a leader in the UK and improve the safety on our roads for all users.

The Author
Brenda Mitchell is a solicitor and founder of Cycle Law Scotland, a trading style of Road Traffic Accident Law (Scotland) LLP
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