Brenda Mitchell is the founder and lead solicitor at Cycle Law Scotland. She is a lawyer, driver, motorcyclist and cyclist and has exposure over a 25 year period to road traffic collisions their causes and the pain and suffering that arises. Cycle Law Scotland believe it is part of their responsibility to seek improvement in the civil law as it applies to a hierarchy of road use and to push forward with a campaign to introduce the concept of strict liability, in a form to be agreed, with the ulDmate aim of encouraging more individuals to take up cycling and for the roads to be safer for all road users.
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There is confusion over the terminology “strict liability”. Road users need to know specifically what it means and how it will affect them as a road user. HISTORY LESSON One of the remarkable achievements of Roman Jurisprudence was the introducDon and development of a noDon of fault or culpability. They also more importantly made an enDre branch of their schemes and obligaDons in order to accommodate instances of no fault liability – where a person was held liable not for his failure to display the diligence of a reasonable man, but because he was in control of a potenDal source of danger to other people’s lives, health and property. There has been a general acceptance of the concept of strict liability in Scots Law over history. Examples that we are more familiar with include: Workplace Regula.ons-‐ RegulaDons that came into force on 1st January 1993 introduced a raX of obligaDons on Employers including strict liability for certain breaches. From introducDon in a 10 year period there was a 30% fall in work place accidents. Strict liability also exists in consumer protecDon laws and control of animals regulaDons.
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Most countries in the world have a strict liability system in civil law as it applies to road use. What underpins the system is the noDon of vulnerability and its applicaDon to road and vehicle use. Road Peace provided interesDng confirmaDon that China has had a strict liability regime in place for the past 10 years and the strict liability rules in relaDon to road hierarchy can be found in Asia, India, Bangladesh and even Vietnam. The quesDon to pose is, why is the concept of Strict Liability acceptable in most European countries and others around the world and yet in Scotland we struggle with the concept of hierarchy of road use whereby motor vehicles have responsibility to cyclists and pedestrians and cyclists in turn have a responsibility to pedestrians?
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Caps (2010) laid down ambiDous targets including a desire to see 10% of all journeys undertaken in Scotland by 2020 by bicycle. ACTION POINT 12 To undertake a legislaDve search to reveal the operaDon of liability laws and how they work in other countries ACTION POINT 13 To try and idenDfy what kind of hierarchy might be established It seems that liele has been done in the past 3 years although it is hoped that following the CAPS refresh we will see the result of any research undertaken in relaDon to acDon point 12. I believe it may well be confirmed that a change in the civil law is not a reserved issue. It is worth noDng that although liele progress has been made in relaDon to acDon point 12 and 13, the single and most factor keeping Scots from cycling is the fear and the fear is that the roads are unsafe. We must consider whether that is a valid well-‐founded fear.
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There is no doubt that public opinion is divided. Many will ask what is wrong with a fault based system. Many would shout that it is not fair that we all share the road therefore we should all be subjected to the same rules. There are views that cyclists are lawless free riders in the high constrained and highly taxed world of the motorists. Many motorists believe that cyclists don’t pay road tax but in truth road tax was abolished in 1937. Many argue that cyclist don’t pay insurance. Many cyclists however do have insurance through membership bodies such as CTC and BriDsh Cycling. Others are covered under their household contents insurance policy for public liability. It should be noted that the insurance premiums paid by cyclists is generally between £20-‐40 per annum because they are deemed to be low risk. If all cyclists were to be insured on a compulsory basis it makes you wonder where all the premium income would go and whether insurance companies would lower premiums for motorists who take to cycling. The UK Department of Transport paper published in 2010 (the same year as CAPS) painted a rather bleak picture. Evidence suggests there is a failure in culture of road sharing and the lack of consensus of whether and how cyclists should be on the road. Motoring journalists and the motoring industry have argued that it is a level playing field, that we are all equal, that we are all road users and we should all be bound by the same liability laws. Are we seriously going to accept that it is a level playing field?
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Strict Liability is an emoDve issue. However, we must conDnue to push ahead with the noDon of the introducDon of strict liability into the civil law in Scotland. One MSP recently noted that the laws around strict liability should be looked at as we work to make Scotland a cycle friendly naDon. If it can be shown to help improve road safety, Scotland should not be afraid to take the lead. Another observer and broadcaster, Lesley Riddoch, confirmed that Europe had massively increased cycle use by building cycle paths and separaDng road users. There is a culture of treaDng cyclists with kid gloves. Liability laws have contributed to that culture and have altered driver behaviour so profoundly. Just like seatbelts, we will look back and wonder why we accepted the current situaDon in the years to come.
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What can we achieve? In many ways what has been achieved already is posiDve. We have removed the issue of strict liability from the back burner and brought it to the fore. LegislaDon is the way forward and we believe is it competent for a members bill to be introduced. We need to decide on the frame work. How strict is strict for example. France adopts a very strict policy of strict liability. The Netherlands have a form of 50/50 and in the UK we seem to be soXening up to the idea of presumed liability. UlDmately it is low cost and easily achievable.
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