Cyclist v Driver: is the road to justice about to become uneven?

Two solicitors look from differing viewpoints at liability on the road and the potential impact of changes proposed by the cycling lobby.

The case against a change:

“I hit a car, but it wasn’t my fault. The bicyclist who rear ended me is to blame.”

― Jarod Kintz, This Book Has No Title

I class myself more as an “interested driver” rather than a Clarksonite “petrol head”. It was with some concern for my insurance premiums that I found myself reading in Cycling Weekly of the campaign by the cycling lobby seeking a change in the law so that where there is an accident between a motor vehicle and a cyclist, the burden of proof to show who caused the accident should always fall on the driver of the motor vehicle.  Some like Chris Boardman, the former British racing cyclist, seek a change to strict liability on the motorist regardless of fault.  

The rationale for this proposal is that the consequences of an accident to the pedal cyclist are almost certainly greater than that to the motorist. This is undeniably true. The unfortunate cyclist will usually come off worse even in the most minor of accidents. 

I have a great deal of sympathy for cyclists who, even with the welcome introduction of better road management, must feel very vulnerable in today’s crowded road environment. Ironically the article in Cycling Weekly highlighting Boardman’s call, had a link to a video where a cyclist is accidentally filmed by an in car video camera pedalling furiously into the rear of a parked driving school car while looking down at his computer and not watching where he was going! 

Luckily he was not hurt. Yet if the cycling lobby get their way the owner of the parked vehicle will be responsible to compensate the cyclist in similar circumstances.

One of the reasons I wanted to become a lawyer was to see that fairness prevailed in our society. In my view road users from the HGV to motor and pedal cyclists, horse riders and pedestrians should all be treated with the same consideration and respect and be equal before the law. So what I was uncomfortable about was this – if there is an accident and the parties find their dispute coming before a court why should one of the parties start at a disadvantage? Is there to be some pecking order with HGV and large vehicles coming off worst and pedestrians and horse riders getting the best shake?   

Surely equality before the law is an essential part of any fair judicial process?   Here the cycling lobby was arguing for the burden of proof to change and even for strict no fault liability to fall on the motorist regardless of fault in order to “balance” the disproportionate adverse outcome to the cyclist. But is that not to confuse liability and fault on the one hand with outcome and compensation on the other?

And if severity of outcome to the injured party is to be the factor in deciding where either the burden of proof or liability should lie then why should the law be changed only for cyclists? Why not for pedestrians? And why just for road accident cases and not also medical negligence victims, accidents at work cases and so on? 

There are two things I do not like about this proposal. Firstly strict liability on fault is inherently unfair, offends against notions of equity and is incompatible with a right to a fair and impartial hearing to determine what is just. The other thing I dislike is the modern tendency to rush towards ill-considered legislation to assuage vocal pressure groups without considering how that will affect others and if the consequences are fair and just to all concerned. Radical reactionary laws to appease pressure groups, transport or otherwise, rarely come leavened with equity and justice. 

John Taylor is a solicitor and director of Chambers Legal Limited.

The case in favour of change:

As a specialist lawyer acting on behalf of cyclists and motorcyclists, as well as being a keen cyclist, motorcyclist and driver, I have the fortune or some would say misfortune of experiencing Scotland’s road culture from a variety of standpoints.

Road Share proposes that Scotland defines the terms on which vulnerable road users can be expected to be protected by civil law – as happens in almost every other European country. Where currently Scotland (and the rest of the UK) is almost alone in giving the least protection to the most vulnerable road users - walkers and cyclists - we want to bring about a change.

Presumed liability is fundamentally about compensating vulnerable road users quickly and effectively. At present, our fault-based system by which cyclists, pedestrians or their bereaved families recover compensation for injury or loss, is in fact weighted against them. More needs to be done to ensure victims are compensated without resort to often unnecessary litigation.

The introduction of a system of presumed liability into Scottish civil law would mean that following a collision, a motorist (in practice the motor insurer) would be presumed liable to compensate an injured cyclist or pedestrian unless it can be proved otherwise.

Likewise, a cyclist involved in a collision with a pedestrian would be presumed liable to compensate the more vulnerable party. This hierarchical system is fair and reasonable as it takes into account an imbalance in relation to vulnerability to injury and importantly an imbalance in civil law whereby the individual can often find himself or herself engaged in a battle against a large motor insurer.

Presumed liability will never entitle a cyclist or pedestrian to recover damages if they have been “the author of their own misfortune”. Presumed liability simply shifts the burden of proof onto those most capable of bearing it. The transfer in the burden of proof is from the vulnerable individual to the powerful insurance company.

The Road Share Campaign also proposes strict liability for the most vulnerable of all road users namely those pedestrians or cyclists aged over 70, children aged under 14 and the disabled whom we believe should receive full compensation regardless of fault. These individuals represent our most vulnerable citizens who should be afforded the greatest protection.

Some argue presumed liability would go against the underlying principles of Scots law that all classes of pursuers should be treated the same ignoring the fact that civil law already provides “protection” to certain types of pursuer.

For example, if a dog bites an individual, the owner is strictly liable to compensate the victim under the Animals Scotland Act 1987. Consumers are protected in civil law under the Consumer Protection Act 1987 which imposes strict liability on the manufacturer or supplier to compensate a consumer injured by a defective product.

From 1993 until 2013, employers were strictly liable to compensate injured workers under a raft of legislation implementing European directives but subsequently removed following the implementation of the s 69 of the Enterprise and Regulatory Act 2013. In the 20 year period following introduction of strict liability in the workplace, there was a 50% reduction in fatal workplace injuries.

Lord Drummond Young in the case of Cairns V Northern Lighthouse Board [2013] CSOH 22 observed “strict liability acts as an incentive to reduce the incidence of hazardous activities and it encourages employers to do their utmost to ensure the least possible risk to employees health and safety.”

Our current fault-based system encourages litigation and too many vulnerable road users wait too long to receive compensation to which they are entitled.  Presumed liability would address such shortcomings and would bring about swifter compensation awards with potential cost savings to the insurance industry.

Presumed liability would encourage insurers to re-evaluate their prospects of successfully defending a case and more cases would settle swiftly thereby reducing overall cost. It’s perhaps small wonder the UK has the highest motor insurance premiums in Europe, where the majority of countries for many decades have had some form of presumed liability in place to protect vulnerable road users.

Scotland, as a nation, is not litigious and is a fair nation where social justice is important to its people. Presumed liability is the natural response of a socially conscious nation as it addresses the unacceptable cost of human suffering caused by increased casualties amongst cyclists and pedestrians injured on our roads.

Brenda Mitchell is a solicitor and founder of both Cycle Law Scotland and the Road Share Campaign.