The
following Questions and Answers have been grouped together under
different topics to help you find the answer you are looking
for.
Q. Why is there a Road Share steering group?
A. The steering group was established in order to research and promote the benefits of presumed and strict liability civil law regimes on road safety. Members have a wide breadth of experience and are drawn from local government, law, cycling and the wider transport sector. It is chaired by CTC Councillor for Scotland and Consultant Orthopaedic Trauma Consultant surgeon, Dr Chris Oliver.
A. The wider purpose of the steering group is to determine a consensus on the issue of presumed and strict liability amongst cycling, pedestrian and other outside stakeholders. Using evidence-based research, it will provide a forum for discussion and debate while working towards the production of a written policy statement outlining our persuasive case for a change in the law, and which will be presented to Scottish Government and Transport Scotland officials and MSPs. This should also conceivably form the basis of a Member’s Bill that could be introduced to Holyrood.
A. The full list of members on the steering group can be found here
A. The
main benefits are two-fold.
Resolving
compensation claims for injured cyclists or pedestrians would be
much quicker and easier as the matter would ordinarily be settled
by the third party insurer. Currently, vulnerable road users
have to establish fault and this is often a difficult, expensive
and time-consuming process.
Secondly, presumed liability would simply encourage and remind drivers to drive carefully at all times as is wholly appropriate given the potential risks to vulnerable road users of a motor vehicle driven carelessly. This should then have a positive impact of reducing accidents involving vulnerable road users.
There are other potential benefits such as reduced legal costs. The full benefits are currently being researched by the Road Share campaign group.
A. Presumed liability for road traffic collisions would mean that following a collision between a motorist and a cyclist or pedestrian, the motorist would be presumed to be liable for injury, damages or loss, unless they can demonstrate otherwise. The same would apply in cases where cyclists collide with pedestrians. It is fairer than the current fault-based system as it shifts the burden of proof from the vulnerable to the powerful.
A.Strict
liability in Europe is widely viewed as a crucial component of
a
package
of measures designed to
safeguard the safety of cyclists and other vulnerable road
users. Consequently, assessing the impact of liability laws
in isolation can be challenging, as the impact of any other
measures must also be assessed. However, Cycle Law Scotland
has looked in-depth at the civil liability systems for road traffic
collisions between motorists and cyclists/pedestrians in Denmark,
the Netherlands and France and in each case the value of civil
liability was clear.
In France in particular, since the passage of a strict liability regime in 1985 (Badinter Loi), bicycle safety has improved markedly. In fact, according to 2012 OECD statistics, the fatality rate for cyclists has decreased by 66 per cent since 1990 alone despite a relative dearth of cycling-specific safety legislation. In France liability will attach regardless of fault, which is not what presumed liability does. In presumed liability the onus shifts and the attachment of liability is capable of rebuttal. This is a system viewed as perhaps more “culturally acceptable” in the UK.
The Transport Scotland research was far from comprehensive as it examined only a handful of nations and utilised just two pieces of evidence resulting in a report no longer than 3 sheets of A4. However, we understand that Transport Scotland and the Scottish Government remain open-minded about the benefits presumed liability and willing to listen to fresh evidence,
The Road Share steering group has undertaken to research the impact of presumed liability on road safety regimes and they will report their findings later in the year.
A. One of the reasons why presumed liability is especially necessary in Scotland is actually to help promote such a culture of cycling. All the main political parties in Scotland recognise the need to increase rates of active travel (cycling and walking) for economic and health reasons and presumed liability could play an important part in making this a reality.
We have seen that some nations with relatively low rates of cycling, like France, have introduced presumed or strict liability regimes as a means to improve road safety and boost cycling numbers.
Across Europe where strict liability is the norm, civil laws protecting vulnerable road users are viewed as a crucial part of a range of policies designed to increase cycling and cycle safety, which results in a virtuous circle contributing to healthy active travel cultures.
At the end of the day, presumed liability affords a measure of protection to the most vulnerable road users befitting of a socially conscious nation like Scotland. We would like to see it as part of a package of measures, like improved cycling infrastructure, designed to encourage cyclists and non-cyclists alike to take to the roads on their bikes.
A. No, the change can be introduced by means of a Members Bill under Scots Law which is devolved. It does not in any way over-ride or conflict with UK road traffic law. The Scottish Parliament has acted in a variety of areas like public health, law and transport in a way that has deviated from the rest of the UK
A. No. Presumed liability would streamline the compensation process by reducing the need for lengthy and costly litigation. In fact, the insurance industry may very well see a decrease in litigation costs and hopefully also a decrease in the number of claims as motorists become more aware and more wary of vulnerable road users. .
A. As cycling increases in popularity, motorists are increasingly seeing themselves as cyclists too evidenced by the fact that 80% of cyclists also hold a driving license.
There also comes a point when we have to put aside the combative “them and us” mentality. With more cyclists on the road and many campaigns to encourage more people to get on their bike, it's time to look at the situation as a mature and socially conscious nation.
We are confident motorists will support this campaign once awareness of the benefits of presumed liability on road safety and road attitudes are more widely known.
A. It’s the norm in Europe and includes major nations like Belgium, Denmark, France, the Netherlands, Spain and the Scandinavian nations.
A. Strict liability does not allow a motorist to escape a finding of liability to pay compensation in a civil action for damages. Liability attaches to some extent regardless of fault. Presumed liability does allow a motorist to escape liability to pay damages to an injured cyclist or pedestrian. Fault is presumed but can be rebutted. In presumed liability, the motorist needs to prove negligence on the part of the cyclist or pedestrian, whereas in a fault based system, it’s for the cyclist/pedestrian to prove negligence of the part of the driver. Presumed liability merely seeks to shift the burden of proof from the vulnerable to the powerful.
A. In addition to the UK, only four other countries in Europe have a fault-based system for road traffic collisions: Ireland, Malta, Romania and Cyprus.
A. Few believe presumed liability will increase premiums. In fact, there may be savings to be had for insurers as presumed liability could reduce expensive, drawn out court cases of the sort that are the commonplace at present. With cases settled more quickly and without resort to litigation, the insurers may well see reduced legal costs. For most motorists involved in a collision with a cyclist or pedestrian, the main cost would often be the loss of their no-claims bonus!
A. Like motorists, all cyclists should follow the rules of the road as laid out in the Highway Code and the vast majority do. But, it’s clear that vulnerable road users should still be afforded a measure of protection as they do not pose the same level of danger to other road users that drivers do. The Highway Code Rule 204 reminds drivers that the most vulnerable road users include pedestrians and cyclists and it’s particularly important to be aware of children and disabled people.
A. No. The point of presumed liability is to help protect vulnerable road users like cyclists and pedestrians from more powerful vehicles.
A. These cases would use existing procedures. Presumed liability would only apply in cases where the operator of a vehicle collides with a cyclist or pedestrian or where a cyclist collides with a pedestrian.
A. No. Third party insurance cover for cyclists is not mandatory for presumed liability to work. However, cyclists can presently take out third party insurance with certain cycling membership organisations like CTC Scotland and Scottish Cycling along with policies from niche suppliers like Velosure and CycleGuard. Public liability cover is also included in household contents insurance policies. It's sensible to have third party cover and insurance premiums are low in the region of £20 reflective of the low risk posed by cyclists to others.
A. The amount of work drivers must put in before being allowed to drive is in part a reflection of the fact that they are in possession of a potentially dangerous and sometimes deadly machine. All road users must be responsible when on the road and the vast majority of cyclists closely follow the rules of the road. The vast majority of motorists also follow the rules of the road and are careful and vigilant.
At the end of the day, however, cyclists and other vulnerable road users need the protection afforded by presumed liability as it is not a level playing field. A cyclist or pedestrian will cause negligible harm to a motorist but a motorist is capable of causing great harm to a cyclist or pedestrian. Presumed liability simply states the operator of the heavier vehicle is presumed liable in a collision as they have the greater weight and speed and should take greater care.
A. It’s highly unlikely that a cyclist who was entirely the “author of their own misfortune” would attempt to sue a motorist, given the financial and practical barriers involved. In these circumstances, the pedestrian/cyclist is unlikely to win and the motorist is highly likely to establish fault. The question to be answered is: through their own actions, did the cyclist “cause” or “contribute” to his own injury? If the answer is yes – and an insured driver will have the full help of his insurance company to demonstrate this – compensation will be denied or reduced.
We’re confident that, once he or she knows the full facts, the average attentive motorist will welcome presumed liability.
A. Our proposals include ample opportunity for drivers to present evidence against cyclists in civil proceedings to discourage reckless behaviour on the part of cyclists apart from when the victim is under 14 or over 70, hardly groups that will purposely put themselves in harm’s way.
Furthermore, the statistics presented in the recent Taylor Review do not support this point of view as there is no compensation culture in Scotland. Scotland has 1/10th of the population south of the border but only 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 Taylor 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”.
The wider point is that no cyclist in their right mind would risk life and limb for the sake of a potential insurance settlement and any suggestion otherwise is just not based on reality.
A. Drivers will always have a chance to prove the negligence of the cyclist before any damages are awarded. They should therefore never feel pressure to leave the scene of an accident.
A. We would hope that cyclists would never do this. The vast majority of cyclists would never currently leave the scene of the accident and there’s no evidence that presumed liability would increase the chances of such incidents occurring. Further a large number of cyclists do have third party insurance cover which we see as a sensible precaution. The cost of third party insurance cover is generally in the region of £20.00. This is nonetheless a rare occurrence, with just 15 pedestrian/cyclist collisions leading to a pedestrian casualty in 2012 out of nearly 2,000 such occurrences, a rate of less than 1%.
A. The top reason given by Scots as to why they don’t take up cycling is fear of cycling on the road. Presumed liability will help give the sense of security needed to encourage a greater uptake of cycling by encouraging a road user hierarchy between all road users.
What is clear from nations with high rates of cycling is that a form of strict liability exists as part of a package of policies meant to increase cycle safety. Other measures, like infrastructure, should be pursued in tandem with presumed liability.
A. Road tax was abolished in 1937 and what is charged how is a vehicle excise duty (VED), which is determined by emissions. Therefore a bike would not pay the VED, just as there is no VED for owners of a VW Blue Motion or other small cars.
We all pay for the upkeep of the roads through our council tax, so a cyclist has equal rights to the road as a car.
A. It would be the responsibility of the cyclist to pay either through his third party insurance cover or if no cover then out of his or her own pocket. Many cyclists have cover either through membership of organisations or through their policy of household contents insurance. It’s sensible to have insurance cover.
A. This is a misconception. Presumed liability only applies in civil cases where the “innocent until proven guilty” principle has never applied. In fact strict liability laws already operate in many aspects of civil law where protection of the vulnerable is paramount such as consumer protection regulation and the control of dangerous animals.
The principle of “innocent until proven guilty” underpins our criminal justice system and will continue to do so after presumed liability is introduced.
A. There needs to be robust enforcement of road traffic violations and appropriate penalties but focusing on criminal law alone does not help injured victims seek redress for injuries sustained. That remains a matter of civil law and presumed liability offers the requisite support to vulnerable road users. It also acts as a constant reminder to drivers to be aware and more wary of pedestrians and cyclists thus promoting behavioural change toward a better culture of road share.
Scottish Government policies
A. We welcome all investment in infrastructure, training and safety campaigns. Presumed liability would simply be an important additional measure which would have many benefits including significantly improving the perception of road safety - and at a low cost. There are long lead times before any investments produce serious improvements in road safety and presumed liability would have a positive effect in a short space of time.
The Road
Share campaign has set up a steering group to take things
forward.
To find out more about the individual members of the Steering group and its overall remit.
The campaign has attracted Cross Party support at Holyrood. See who is supporting, who is undecided and who doesn't support the campaign.
The
Campaign has successfully attracted a number of celebrity
supporters who feel strongly about the introduction of presumed
liability and have given their support.
Contact us via email at info@roadshare.co.uk
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