PowerPoint Presentation

Cycling and the Law

Tweedbank HubScottish Borders

28th March 2017

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Prove fault

The starting point is the Duty of Care. We all owe a duty of care to other road users and that is a common law duty to exercise reasonable care and not to expose others to harm by our actions. When considering a claim for compensation, you need to establish that a duty of care is owed, there has been a breach of that duty of care AND, as a result, a person has been injured. The important point is negligence. Negligence is established based upon the concept of balance of probability. Importantly, presumed liability does not do away with the concept of negligence. For a vulnerable road user to be compensated, there has to be a negligent act which resulted in the collision. Many argue that compensation is wrong and out of control. Some even suggest we have a compensation culture yet as Sheriff Principal James Taylor stated in his Review Of Expenses and Funding of Civil Litigation in Scotland, there is a different culture in Scotland and there is no evidence of a compensation culture in Scotland.The whole purpose behind an award of compensation is an attempt to put an injured individual back into the position they would have been in but for the accident.

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Concept of harm

where a person is held liable not for failure to display the diligence of a reasonable person, but because they are in control of a potential source of danger to other peoples lives, health and property. No fault liability

One of the most remarkable achievements of Roman Jurisprudence was the development of the concept of fault or culpability. More importantly the concept of no fault liability. A person would be held liable, not for the failure to display the diligence of a reasonable person but because they are in control of a potential source of danger to other peoples lives, health and property.4

Industrial Revolution

Locomotive on the Highways Act (1861)

Locomotive Act (1865)

Lord Bramwell Powell v Fall (1880)

Move forward a few centuries and we had the Industrial Revolution. The Concept of Harm remains. It is just and reasonable that if a person uses a dangerous machine, he should pay for the damage it occasions.5

Advent of motorised vehicles

Gibbons v Vanguard (1908)

Wing v London General Omnibus (1909)

This was a similar lamppost destruction by the Omnibus but this time a passenger on the bus was injured. However, no evidence was presented that the bus was a nuisance and the Courts found no negligence on the part of the driver. No negligence = No Liability. This is where the U-turn occurred.6

What were our European neighbours doing?

Betriebsgefahr1907 - Germany1920 NetherlandsLoi Badinter1985 - France

So, what were our European neighbours doing at this time?7

RomaniaMaltaCyprusUKIrelandThe 5 who ignore the concept of harm

From our research, we have established that no country in the world has achieved both high levels of walking and cycling and low casualty levels without presumed liability. Can anyone at Transport Scotland seriously state that there is any evidence that Scotland will achieve the desired increase in safe active travel without presumed liability when our research proves otherwise. It is not a coincidence that the countries in Europe with presumed or strict liability have a far better culture of road share. 8

Fault based system

To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.

In our fault based system for road traffic civil liability, it is the individual who bears the burden of proof. It is the individual who must establish the fault or negligence. In so doing, it is the individual who takes on the might of the insurance industry. Claims for compensation are made against insurance companies and not drivers. Drivers must pay for compulsory third party insurance. If a driver causes a collision and another is injured, his or her insurance company will pay any third party claim.

Our present fault based system ignores the concept of harm and who brings most harm to a road traffic collision. As Lord Denning stated, to require the individual to prove fault results in the gravest injustice. Presumed liability is about recognising who is most able to bear the burden of proof. Is it the individual in our current fault system or should it be the large insurer in a presumed liability system?

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Level Playing Field

In our fault based system for road traffic civil liability, it is the individual who bears the burden of proof. It is the individual who must establish the fault or negligence. In so doing, it is the individual who takes on the might of the insurance industry. Claims for compensation are made against insurance companies and not drivers. Drivers must pay for compulsory third party insurance. If a driver causes a collision and another is injured, his or her insurance company will pay any third party claim.

Our present fault based system ignores the concept of harm and who brings most harm to a road traffic collision. As Lord Denning stated, to require the individual to prove fault results in the gravest injustice. Presumed liability is about recognising who is most able to bear the burden of proof. Is it the individual in our current fault system or should it be the large insurer in a presumed liability system?

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Cyclist v dog

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Animals Scotland Act (1987)

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Common Cycling Incidents

Dooring

JunctionsPassingRoundabouts

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Mark LonnenFault based system - Dooring

Mark Lonnen was injured when a car driver opened his door into his path. Despite the straight forward circumstances, the drivers insurance company would not compensate Mark. An action had to be raised in court and it took 12 months for Mark to receive compensation. Jamie Aarons was injured in a similar fashion to Mark Lonnen. On this occasion, a taxi driver opened his door into her path. He later denied liability. His insurance company maintained they had 6 witnesses that would prove that Jamie had cycled into an open door. Proceedings were raised in Court and the case settled 11 months after the incident. These cases demonstrate that our fault based system is failing the individual and the bereaved. Cases that should be settled quickly and fairly are ending up in Court. When a case goes to Court, the losing side has to pay the Court costs. Presumed liability will result in more cases being settled without resort to expensive litigation which is what the Association of British Insurers want.

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Walter HamiltonFault based system - Junctions

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Fault based system - Roundabouts

Gemma Scott. Gemma was cycling her bike in Edinburgh Park on the outskirts of Edinburgh and was approaching a roundabout when suddenly a car driver hit her from behind.Gemma was thrown from her bike and suffered soft tissue injuries to her hip, pelvis, back and neck.Gemma approached Cycle Law Scotland to help her recover compensation for damage to her bike and her own injuries.The car drivers insurer denied liability saying that Gemma had changed lanes and ridden into his path. The insurer offered to settle the case on a 50/50 basis for just over 3000, which was less than half what had been requested.Cycle Law Scotland litigated the case. In the interim, it became clear that Gemma was still experiencing psychological issues as a result of the collision and so we appointed an expert to assess her. A course of CBT (Cognitive Behavioural Therapy) was recommended to help her overcome her fears.Just 2 days before the court hearing, almost 2 years after the original incident, an offer of 13,500 was received and accepted by our client.

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Jennifer WallaceFault based system - Passing

Sally Low was killed following a collision with a car. She was on her own carriageway. An independent witness confirmed she had done nothing wrong. Despite that, the car drivers insurance company would not compensate her family and it took 18 months for her 2 teenage sons and other family members to recover much needed compensation. Sally was a single mother and therefore the sole bread winner. Mark Lonnen was injured when a car driver opened his door into his path. Despite the straight forward circumstances, the drivers insurance company would not compensate Mark. An action had to be raised in court and it took 12 months for Mark to receive compensation. Alex Gibson was injured when a mini-bus overtook him. The driver did not leave sufficient room. The drivers insurance company denied liability. Proceedings were raised in Court and it took 18 months for Alex to recover his award of compensation. Jamie Aarons was injured in a similar fashion to Mark Lonnen. On this occasion, a taxi driver opened his door into her path. He later denied liability. His insurance company maintained they had 6 witnesses that would prove that Jamie had cycled into an open door. Proceedings were raised in Court and the case settled 11 months after the incident. Consider the case of Lesley Jackson, a 13 year old schoolgirl who was seriously injured when she alighted a school mini-bus and attempted to cross the road but was hit by a car travelling at 50 mph. It took 10 years for the Court case to be decided by The Supreme Court after two appeals.All these cases demonstrate that our fault based system is failing the individual and the bereaved. Cases that should be settled quickly and fairly are ending up in Court. When a case goes to Court, the losing side has to pay the Court costs. Presumed liability will result in more cases being settled without resort to expensive litigation which is what the Association of British Insurers want.

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Prove fault?

Sally Low was killed following a collision with a car. She was on her own carriageway. An independent witness confirmed she had done nothing wrong. Despite that, the car drivers insurance company would not compensate her family and it took 18 months for her 2 teenage sons and other family members to recover much needed compensation. Sally was a single mother and therefore the sole bread winner. Mark Lonnen was injured when a car driver opened his door into his path. Despite the straight forward circumstances, the drivers insurance company would not compensate Mark. An action had to be raised in court and it took 12 months for Mark to receive compensation. Alex Gibson was injured when a mini-bus overtook him. The driver did not leave sufficient room. The drivers insurance company denied liability. Proceedings were raised in Court and it took 18 months for Alex to recover his award of compensation. Jamie Aarons was injured in a similar fashion to Mark Lonnen. On this occasion, a taxi driver opened his door into her path. He later denied liability. His insurance company maintained they had 6 witnesses that would prove that Jamie had cycled into an open door. Proceedings were raised in Court and the case settled 11 months after the incident. Consider the case of Lesley Jackson, a 13 year old schoolgirl who was seriously injured when she alighted a school mini-bus and attempted to cross the road but was hit by a car travelling at 50 mph. It took 10 years for the Court case to be decided by The Supreme Court after two appeals.All these cases demonstrate that our fault based system is failing the individual and the bereaved. Cases that should be settled quickly and fairly are ending up in Court. When a case goes to Court, the losing side has to pay the Court costs. Presumed liability will result in more cases being settled without resort to expensive litigation which is what the Association of British Insurers want.

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Challenges - Drivers

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Drivers

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Drivers

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Drivers

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Challenges - Police

Ivar Brencevs

CLS requested an abstract report. Police Scotland in Aberdeen have not provided a full accident report as they say they only produce accident reports for collisions involving death or serious injury! Our client advised that Police attended the scene and asked him what happened. He said he struggled to communicate with them as he was concussed and very confused. He had red paint markings on his clothing as a result of the collision having been thrown across the roundabout to the far side.Someone in a Range Rover who wastravellingbehind the cyclist as he crossed the roundabout phoned the Police. A medical student attended to ourclientbefore the Emergency Services arrived. Neither of these two witnesses were talked to by the Police and no statements were taken.Our client believes his bike was left at the scene of the accident and not taken by the Police. There is no trace of this bike. The Police should have recovered it.The clients wife went to a local Police station in Aberdeen a few days following the accident. She asked what the process was. Client advised that the Police station she attended called the station where the officer(s) who attended the scene was stationed and an appointment was made for the following day at the clients home address to discuss the accident circumstances.According to our client, no one turned up for this appointment and he has been left with no further knowledge of what the Police did on the day of the accident.There is no confirmation of the driver being charged despite completely failing to give way to our client was he was established on the roundabout and colliding with him at significant speed.24

ExcusesRed light jumpingLaunched off the pavementCame from nowhereRiding too fastThere was a low sunChanging their storyRefusing to provide insurance details

Insurer and Policyholder Excuses25

Checks and balances

Insurer and Policyholder Excuses26

Road Hazards

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Robinson v SBC

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Donalds Experience

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Cycle Paths

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Cycle Paths

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Joes experience

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Jims experience

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What if it happens to you?

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What if it happens to you?

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What to do at the scene of an accidentSTOPCONTACT the PoliceOBTAIN registration numberPHOTOGRAPH the scene/road surface/position of vehicles.

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Collision Card

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Legal Advice and AssistanceDamages

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Legal Expense Protection

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Campaigning for safer cycling in Scotland

Campaign for Presumed Liability

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Presumed Liability

Who brings most harm?

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No country in the World has achieved both HIGH levels of walking + cycling and LOW casualty levels without presumed liabilityPresumed Liability

Presumed Liability Responsibility

From our research, we have established that no country in the world has achieved both high levels of walking and cycling and low casualty levels without presumed liability. Can anyone at Transport Scotland seriously state that there is any evidence that Scotland will achieve the desired increase in safe active travel without presumed liability when our research proves otherwise. It is not a coincidence that the countries in Europe with presumed or strict liability have a far better culture of road share. 42

BikeRadar reasons to be cheerful

1. Youll get there faster.2. Sleep more deeply3. Look younger 4. Boost your bowels 5. Increase your brain power 6. Beat illness 7. Live longer8. Save the planet9. Improve your sex life10. Its good breeding 11. Heal your heart12. Your boss will love you13. Cycle away from the big C14. Lose weight in the saddle15. Youll make more money

16. Avoid pollution17. It means guilt-free snacks18. Enjoy healthy family time19. Get better at any sport20. Make creative breakthroughs 21. Youre helping others 22. You can get fit without trying too hard23. Boost your bellows24. Burn more fat25. Youre developing a positive addiction 26. Get (a legal) high27. Make friends and stay healthy28. Be happy 29. Feeling tired? Go for a ride30. Spend quality time with your partner

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Q and ABrenda.mitchell@cyclelawscotland.co.uk

www.cyclelawscotland.co.uk

cyclelawscotland

cyclelaw1

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Fault based system - Junctions

George Popp and Jalnar Herring45

Fault based system - Junctions

George Popp and Jalnar Herring

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Fault based system - Junctions

Neil McDonald. Junction on the A703 - Seafield Moore Road with Bushfarm Road, Roslin47

Fault based system No Contact

Ruari Grant48