Road Share - Case for Stricter liability (with notes) - Dec 2014 Parliamentary Reception
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The Road Share campaign, initiated by Cycle Law Scotland in April 2013, advocates for a stricter liability regime in civil law to protect vulnerable road users like cyclists and pedestrians. The proposed system would presume liability for drivers involved in collisions with these users, aiming to enhance safety and encourage cycling in Scotland. Despite a lack of robust evidence supporting stricter liability, the campaign has garnered significant political and societal support, highlighting the need for further research and discussions on improving road safety for vulnerable populations.
Road Share - Case for Stricter liability (with notes) - Dec 2014 Parliamentary Reception
- 1. The Road Share campaign was launched in April 2013 by Cycle Law Scotland to encourage the Sco?sh Government to introduce a system of stricter liability in Scots civil law to give protecCon to vulnerable road users (cyclists and pedestrians.) 1
- 2. 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 bringing about change for the beUer. Our campaign goes hand-‐in-‐hand with promoCng cycle safety and educaCng 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 arCcle, he confirmed that whilst he loved his job, he was growing Cred of fixing broken cyclists. 2
- 3. Well, we are one of only five countries who 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 naCons 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 you consider why countries such as Denmark and France, for example, introduced stricter liability regimes, it was in direct response to a need to 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. 3
- 4. So, what are we proposing for Scotland? One of the remarkable achievements of Roman Jurisprudence was 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 pedestrian if 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 and injure them. In other words, liability will aUach but it is always open to a driver or cyclist to allege fault on the part of the injured individual. Further protecCon 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 4
- 5. So what are the benefits? It is clear that in those naCons 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 Sco?sh 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 percepCon cycling is unsafe, is the single most important factor that stops individuals from taking to the roads. Ask yourself the quesCon. 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. 5
- 6. We never said this would be easy. As Alison reminded me at the Heels ‘n’ Wheels event during the Edinburgh FesCval of Cycling last Summer, she said, “This is going to be a marathon not a sprint.” 6
- 7. 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 AcCon Plan for Scotland, which was iniCally published in 2010. It set out a vision to get 10% of all journeys by bike by 2020. The acCon plan was structured around key issues that emerged from the Sco?sh Government’s consultaCons held throughout 2008 and 2009 and it set out a framework to achieve that vision. It also set out what the Sco?sh government will do. I say, “will do.” Powerful stuff 7
- 8. Let’s have a look at the two separate acCon points which specifically related to Strict Liability. AcCon point 12 was as follows: To undertake a legisla2ve search to reveal the operaCon 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. 8
- 9. The outcome expected from AcCon Point 12 was to be… A comprehensive report on liability laws and how they affect cycling. 9
- 10. The second acCon point related to Strict liability was as follows:-‐ To try and iden2fy what kind of hierarchy, if any, might be established and develop an educa2onal awareness campaign for all road users. 10
- 11. The outcome expected from AcCon point 13 was to be…. A reduc2on in the rate of cyclist KSIs 11
- 12. So what happened and what did the Government do? Well, these acCon points sat on the back burner unCl the summer of 2013 when there was a refresh of the cycle acCon plan for Scotland. Cycle Law Scotland contributed to the refresh based on research we had carried out earlier in the year. Somewhat disappoinCngly, however, Transport Scotland confirmed that they had carried out their own desk based review looking at the basic impact of strict liability legislaCon 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 legislaCon to levels of cycling and KSIs when countries like the UK are clearly reducing fataliCes 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 Cme, evidence appears to show that cycling in general has not increased so therefore something has gone wrong. 12
- 13. No it wasn’t. Thanks to brave MSP's and in parCcular, Alison Johnstone, the idea survived. Support was growing from across the poliCcal 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 conCnue to debate the issue of stricter liability. Many spoke passionately but required further informaCon and others were wholly against the idea. However, I would like to quote ConservaCve 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 introducCon of legal safeguards that address the imbalance.” 13
- 14. I menConed the growing support across the poliCcal spectrum. These include Jean Urqhuart, Tavish ScoU, 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 peCCon calling for the Sco?sh 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 organisaCons like The Bike StaCon, Edinburgh Bicycle CooperaCve, CTC Scotland. Spokes, Pedal on Parliament and most recently Sco?sh 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 parCcular, ScoU HasCngs, as I know that during the course of his rugby career he met with some brutal opposiCon but nothing could have prepared him for the “Call Kaye phone in.” Well done ScoU! So with all this support ,is there hope? 14
- 15. At the end of the debate these were Keith Brown, Transport Minister’s words. “Although I am supporCve of nearly all the statements that are made in the moCon, I cannot support it in its current form, given the lack of robust evidence that stricter liability could have posiCve benefits for vulnerable road users. However, there will conCnue to be debate on the issue, in which we will conCnue to parCcipate.” I am pleased that he has commiUed the Sco?sh Government to conCnue to be involved in debate and the Sco?sh government will conCnue to be a parCcipant. 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 commiUed to back in 2010. Here is just one example… 15
- 16. SomeCmes, it is good to look at an example. Prior to 1985, France had a fault based system. I have never parCcularly thought of the French as being a safety conscious naCon and you can see here the example of traffic aUempCng to navigate the Arc de Triomphe – chaos! In 1985, there was a wholesale shir over to Strict liability where a driver is liable to compensate a cyclist or pedestrian if they collide with and injure them. There is no defence of unavoidable accident and there are severe restricCons on allegaCons 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 staCsCcs 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 reducCon, but it did play a role. In the Netherlands, it is three Cmes safer to cycle compared to the UK. 16
- 17. Fault based is the current system whereby it is necessary to establish negligence before being awarded compensaCon. What we are suggesCng is that with the introducCon 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 protecCon and control of animals. Furthermore, it did exist in the workplace regulaCons unCl the dreadful Enterprise and Regulatory Act in 2013. Perhaps, these 2 case examples will help to explain the problem… Jamie Aarons Jamie was cycling to the gym when a taxi driver swung his door open in front of her. She didn’t have Cme to take evasive acCon 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 apologeCc, picked up her bike and gave her his mobile number but she didn’t make a note of the taxi’s registraCon number. To be honest, as it was dark and she wasn’t familiar with the area, she simply wanted to conCnue her journey. 17
- 18. So, where do we go from here? Whilst we are reassured that Keith Brown is prepared to commit the Sco?sh Government to conCnue 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 2010 We 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 Cme has come for Scotland to grasp the thistle and take the lead. We are a naCon that has always sought to protect the vulnerable We are a brave and bold naCon. Now, with all that talk of bravery and thistles, don't be alarmed at the next slide. 18
- 19. 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 poliCcians and the Sco?sh 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 naCon. 19
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