Hold drivers automatically accountable for collisions with cyclists, say campaigners

Drivers should automatically be held responsible for accidents involving cyclists and pedestrians unless they can prove they are not at fault, road safety campaigners have told the Scottish government.

In a report submitted to transport minister Derek Mackay, the charity Road Share argued that introducing “presumed liability” for motorists could save lives, encourage safer driving habits and persuade more people to take up walking or cycling as their primary means of transportation.

Research conducted by the group found that Scottish cyclists were more likely to be killed on the road than their counterparts in countries including Denmark, Germany and the Netherlands - where drivers are already held liable for collisions.

Road Share’s director Brenda Mitchell, a solicitor specialising in accidents involving cyclists, said current laws in Scotland, which are similar to those under the separate legal system of England, Wales and Northern Ireland, failed to adequately protect bike users and pedestrians.

At the moment the UK is one of only five countries in Europe using a fault-based system where if you’re hit by a car, you as an individual have to prove that the driver was responsible.

If you’re a motorist then you have an insurer in your corner fighting your cause, but as a cyclist you have to seek out a lawyer, and you bear all the risk in terms of legal expenses if you don’t win your case.

Cyclists and pedestrians are vulnerable on the roads, and what we’re saying is that we should look at who brings the greatest potential for harm in a collision and shift the burden of proof from the vulnerable onto the powerful.

Mitchell’s organisation’s proposals - which would affect civil rather than criminal cases - would see Scotland’s motoring law shift significantly from the rest of the UK’s. But she argued that substantial evidence from countries which have already adopted a similar approach showed the potential to reduce deaths and injuries on the roads.

In France in the 1980s they had really unacceptable levels of cycling fatalities, and then in 1984 they introduced a system of presumed liability.

In the two decades that followed they had a reduction of over 60% in fatalities.

It wouldn’t be right to attribute that entirely to the change in the law - there are all sorts of other factors that come into play. But France is similar to the UK in terms of there being not much segregated cycling infrastructure, and yet it’s safer to cycle in France than in the UK.

She added that the report wasn’t intended to antagonise drivers.

This isn’t about just blaming motorists. If a cyclist runs a red light and causes a collision then it’s their fault and there wouldn’t be a penny paid in damages. This doesn’t allow dangerous or negligent cyclists to recover compensation.

And if you look at countries where similar measures are already in place, there’s far less litigation, which means that drivers pay lower insurance premiums.

But the one thing that’s stood out in our research is that every country that has both a high percentage of people walking and cycling on a daily basis and a low number of people killed or injured in road accidents has some form of presumed liability in place.

Scotland’s transport minister has received a copy of Road Share’s report and would be considering its findings, Mitchell said.

Meanwhile, the Scottish Green party has expressed disappointment at a reduction in funding for cycling and walking in Scotland.

Transport Scotland has allocated around £35.8m to active travel in 2014-2015. While the figure is higher than the amount announced at the start of the last financial year, it falls short of the £39.1m which was eventually actually spent.

Alison Johnstone, Scottish Green MSP and co-convenor of the cross party group on cycling, said:

I’m disappointed that the new transport minister hasn’t managed to keep cycling and walking funding going up and that Scots continue to miss out on the high-quality infrastructure that other countries enjoy.

The Scottish government has failed in every year of this parliament to spend even 2 per cent of a £2 billion annual transport budget on making cycling and walking a more attractive and safer option. We just won’t see the potential rewards for people’s health and well-being without serious investment.

A Scottish government spokesman said:

The facts are that the latest funding announced this week takes the total budget for active travel in 2015-16 to almost £36 million, a 12 per cent increase on this time last year. Additionally, we will look to any budget flexibility to increase this amount in 2015-16, as we did in 2014-15.

This underlines our commitment to achieve a shared vision of 10% of everyday journeys being undertaken by bike by 2020. We accept this is ambitious but we believe that by working alongside our partners in local authorities and other agencies we can continue to deliver high quality infrastructure and behaviour change programmes.

A recently-published report by Cycling Scotland (PDF) found that just 1% of Scots use a bike as their primary form of transport.

This article was updated on 27 March 2015 to clarify that the proposed changes to liability would affect civil rather than criminal cases.