PowerPoint Presentation
Cycling and the Law
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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
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?
10
Common Cycling Incidents
Dooring
JunctionsPassingRoundabouts
There is no automatic entitlement to compensation under presumed
liability. Presumed liability is about transferring the burden of
proof in recognition of who brings most harm. However, Road Share
proposes to protect the children (70) and the disabled. They should
be compensated without having to prove fault.
11
Jamie Aarons
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.
12
Walter HamiltonFault based system - Junctions
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Fault based system - Roundabouts
Alex GibsonFault 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.
16
Cycle Paths
Cycle Paths
Cycle Lanes Highway CodeRule 140
Cycle lanes. These are shown by road markings and signs. You
MUST NOT drive or park in a cycle lane marked by a solid white line
during its times of operation. Do not drive or park in a cycle lane
marked by a broken white line unless it is unavoidable. You MUST
NOT park in any cycle lane whilst waiting restrictions apply.Law
RTRA sects 5 & 8
Cycle Lanes
Clenshaw v Tanner
Cycle Lanes
Billington v Maguire
Road Hazards
There is no automatic entitlement to compensation under presumed
liability. Presumed liability is about transferring the burden of
proof in recognition of who brings most harm. However, Road Share
proposes to protect the children (70) and the disabled. They should
be compensated without having to prove fault.
22
Robinson v SBC
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. 23
Cyclist v dog
Animals Scotland Act (1987)
What if it happens to you?
What to do at the scene of an accidentSTOPCONTACT the
PoliceOBTAIN registration numberPHOTOGRAPH the scene/road
surface/position of vehicles.
Campaigning for safer cycling in Scotland
Campaign for Presumed Liability
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Presumed Liability
Who brings most harm?
There is no automatic entitlement to compensation under presumed
liability. Presumed liability is about transferring the burden of
proof in recognition of who brings most harm. However, Road Share
proposes to protect the children (70) and the disabled. They should
be compensated without having to prove fault.
29
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. 30
Positive Note- NHS
Benefits of cyclingCycling is one of the easiest ways to fit
exercise into your daily routine because it's also a form of
transport. Cycling also:saves you moneygets you fithelps the
environment
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
Legal Expense Protection
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www.cyclelawscotland.co.uk
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