Clearer Responsibility for Vulnerable Road Users is Needed – The Case for Change and a Call for Evidence
This week saw the first meeting of the Roadshare Steering group which has been set up to campaign that there should be ‘presumed liability’ for motor vehicle drivers in the event of a collision with vulnerable road users such as pedestrians and cyclists. I was invited along to the meeting as I have been working on road accident analysis for many years. Other attendees included relatives of those killed in fatal road accidents, elected representatives, lawyers, medical practitioners and cycle campaigners.
Reporting on the meeting, the Edinburgh Evening News ran the headline “Cyclists bid to make drivers prove innocence“ but I do not think this is actually a story about legal compensation culture, but about protecting vulnerable road users. Equitable sharing of road space is something that affects us all. 80% of all trips involve us being vulnerable road users at some point in the journey by walking. The confusion at the Evening News may be because the presumed liability campaign has been funded and supported in its first year by Cycle Law Scotland who have been aware of the problem, and also had the ability to do something about it. It is now time for more people to get behind them.
The idea of presumed liability in civil law ensures that responsibilities are clearer and everyone including drivers are protected. If there was concern that a reckless badly trained or uninsured cyclist might be given special rights then this is misplaced. Drivers’ rights and protection in criminal law are not affected by allocating civil responsibilities more clearly.
Thankfully I have never personally had a road accident as a driver or as a pedestrian/cyclist, but if I did, I would want presumed liability to avoid complex legal proceedings. I find it abhorrent that my insurance company would currently act on my behalf to defend my innocence as a driver in court when ‘fault’ is probably the least important issue for everyone involved. Imagine that a pedestrian hidden by a parked van suddenly ran out in front of my car and I was completely unable to stop. If the collision resulted in a serious injury to the pedestrian I would feel terrible and want to help. If the pedestrian could not work for some months as a result of the collision and had no income they would need financial support. The privilege of driving a car is regulated by a requirement to hold motor insurance since cars can be dangerous things and can injure people. Personally, losing my insurance no claims bonus would be a small price to pay for the peace of mind of knowing everyone involved was protected.
Imagine the collision where I was the pedestrian. What if I lost my income and needed to try to prove negligence by a driver in order to protect myself. Again the current legal system does not protect the victims. In a world where motorised vehicles are normal most countries have responded by creating presumed liability provisions. Scotland is now one of only a few countries in Europe without some form of presumed liability legislation and I think that needs to change.
The law should reflect the realities of modern transport systems. As an engineer and transport analyst attempting to design safe infrastructure I want to see the right legal framework to back up good design. We already recognise the fact that cars and lorries can potentially be dangerous, so we require drivers to be trained, and to carry insurance. However, vulnerable road users may or may not be trained and may or may not carry insurance so they need protected too.
We do not know precisely how the car insurance markets would respond to a change in the law, but a fall in car insurance levels is just as likely as a rise. There should be cost reductions from safer roads and being able to settle claims quickly and easily. Currently most of the money paid out by insurers goes to lawyers arguing cases in criminal courts. So back to the Evening News headline, it is because we do not want to spend so much time in court that we need some form of presumed liability. This is not a story about legal compensation culture but about social progress.
I first looked into this topic in detail when working on the Scottish Office road safety plan in 1994. The focus then was on presumed liability in pedestrian casualties, and drivers’ rights in the prevailing culture of the ‘great car economy’ dominated the debate. However, we have come a long way in 20 years and the time seems right for a change in the law. Inactivity is a growing health problem and levels of walking have been falling faster than the most serious casualties making walking more dangerous on average.
The available analysis seems to be overwhelmingly in favour of a change in the law to introduce presumed liability including: the need to act in Scotland on pedestrian and cycle safety due to a poor international record, the lack of international evidence to suggest that presumed liability would be associated with any problems, the availability of evidence to suggest that it forms part of many successful road safety programmes, and the prospects that clearer allocation of responsibilities in the way we share road space could reduce legal costs and be part of helping to build a stronger and more inclusive society.
The campaign has set out the evidence, case and precedents for change in more detail at http://www.cycling-accident-compensation.co.uk/strict-liability.aspx. It is important that STSG facilitates the strongest available evidence to support this debate so please add to this thread any other evidence or opinions that might help. I look forward to continuing the debate within STSG and on the new Steering Group of Roadshare.
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I believe that there was an estimate, a few years ago, that presumed liability would add about £50 pa to the average motor insurance premium – which is about £750-800 pa. The estimated cost on the average premium for fraudulent whiplash claims meanwhile was about £90.
£50 doesn’t sound unreasonable – and I am sure that savings in litigation costs and improved safety culture would be outweighed by the increased payouts to people who need and thoroughly deserve them, and that is undoubtedly a good thing.
I wasn’t aware that Scotland was – yet – a country in its own right but if it is, it is one of six out of 28 in the EU which have no presumed liability law for motor claims, the others being England/Wales, Ireland, Malta, Cyprus and Romania. Four of those five presumably because they follow the English Common Law approach to jurisprudence, while all other EU states are modelled on the Code Napoleon civil law approach. Including Romania – really don’t know why they haven’t followed the pack, but one can hardly regard it as a respectable example to follow.
We have a significant cultural misalignment when it comes to our lives with motor vehicles on the road, and not only in civil law. To take the presumption of liability, the topic being discussed, first. In any other area of activity, where a party is using equipment that can cause substantial damage or injury the law (generally through citing health & safety legislation) is very clear about the duty of care, and the burden of proof encumbent on the person using the hazardous equipment that they are liable for any damage or injury arising from that activity – using a chainsaw, firing shotguns, even driving a motor vehicle on a site which is not a public road. Only when the place is on a public road do we have the aberration of requiring protracted legal battles over liability, when let’s face it, if the parties in collision have both been on foot or on bikes, the outcome would have been substantially less severe. So bring a motor vehicle in to the equation and expect that society demands you must deliver the duty of care that goes with it.
In 1903 this issue was recognise in the drafting of the Motor Car Act, and lives on in the requirements of Section 170 RTA 1988 making it a requirement of drivers of motor vehicles to provide insurance details to any person reasonably requiring them, when the PRESENCE of their motor vehicle causes damage or injury. We simply have not completed the detail, which in Scotland (Roman Law) should to be properly precise be called Strict Liability, but is perhaps better explained as the presumption of same.
I mentioned a wider failing of the law, when it comes to the soft landing for those facing the courts for motoring issues. Only for motoring do we have denial of “causing death by driving” of various sorts. Kill someone in any other way with a piece of machinery, or even run them over with a truck on a building site and the charge is simple and straightforward – Manslaughter, with the rarer cases where intent or deliberate action is proven – Murder. That change would at a stroke align a cornerstone of law where the average citizen is likely to have a pseudo-criminal record of a of a few penalty points on their driving licence, wiped clean after a few years – unlike a ‘real’ criminal record. Being a driving law-breaker is socially acceptable compared to being a real crook.
Currently the PFS and CPS waver about selecting careless or dangerous driving as the charge to bring – manslaughter will simplify that (and align with the charge generally used for the rare occasions when cyclists carry the blame for a fatal crash). This would cut delays, costs, and trauma for all involved in bringing cases to Court
Making that sort of change is a big push but getting progress on the civil law detail is a good place to start.
Scots are now 19 times more likely to be killed or seriously injured if they walk a mile compared with driving.
The latest road casualty statistics show that there is a need for change in the way we protect vulnerable road users in Scotland. If we want people to lead more active lifestyles then we need to make it safer to do so. People still live longer on average if they walk and cycle more, despite the greater accident risk, but our good car safety record in Scotland is not matched by good walking and cycling safety levels. Cycle fatality rates are still more than twice the casualty rates in some other countries.
At the start of this century Scots walked on average 220 miles and cycled 25 miles per year. In less than 14 years people’s walking has fallen to roughly 150 miles, and cycling has increased to approximately 35 miles on average. The latest casualty statistics show that the number road casualties per mile has risen and fallen broadly in line with walking and cycling activity. Despite government claims of large casualty reductions, once changes in travel behaviour are included, the actual improvement in the most serious casualty numbers has been less than 10%.
Over the same period the fall in the number of the most serious car user casualties has been about 50%. In 2000 the fatal and serious casualty rate for walkers was 12 times that for car users per mile travelled but by this year this ratio has risen to 19.
The personal consequences of these injuries are also more severe for walkers and cyclists. When a car user is injured and unable to work, their car insurance protects them against the greatest financial losses. In contrast walkers and cyclists are not required to carry insurance and often find that they and their dependents suffer real hardship from loss of income due to injury.
The Roadshare campaign argues that presumed liability legislation is the simplest way of providing financial protection to vulnerable road users. As roads across Europe have become busier nearly every country has adopted a system of presumed or strict liability to ensure that vulnerable road users are protected. Requiring injured walkers and cyclists at a time of trauma to go to court and show that drivers were at fault is not civilized. Better legislation will help to ensure that money gets to those who need it without treating drivers who have had an accident as criminals.
If car drivers have greater liability for vulnerable road users then all of the available evidence is that they also drive more carefully, helping to reduce the risk of accidents. Every country has different legislation to suit its own legal system. Scotland needs to develop laws that are consistent with the social conscience of the population.
These latest statistics are a wake-up call that more action to protect vulnerable road users is needed.
There has been a debate in Local Transport Today (LTT) about the apparent lack of evidence to support a change in the law. My input to this is posted below which centres around two key questions:
1 – Why should anyone object to civil law provisions that ensure that everyone on the roads is protected in the event of an injury?
2. – Should we be paralysed into not doing something new because of a lack of certainty about the scale of the positive impacts?
“Going to court is a waste of everyone’s time and money – we need better road sharing legislation
In LTT 649 to 651 there has been a continuing debate about the case for strict and presumed liability legislation to protect vulnerable road users. For over 20 years in various consultancy and research projects I have noted the lack of protection given to vulnerable road users and generally supported changes that would address this. I support the Roadshare campaign for better liability legislation because it is difficult to see a way forward that does not involve clearer liability laws, but I recognise the knee jerk reaction of many transport professionals when seeing a lawyer campaigning on this agenda. Nobody wants to open the door to a destructive compensation culture.
However engineers like myself and lawyers like Brenda Mitchell share the painful experiences of seeing families in real difficulty as a result of our current arcane laws. I therefore have some questions for those who would oppose better strict and presumed liability legislation. They avoid two diversions that have narrowed the terms of the LTT debate: firstly focusing on cyclists who are just one small group who could be helped by new legislation; and secondly attempting to separate out impacts of legal changes from the overall effects of well-designed packages of engineering, education, enforcement and publicity programmes.
The first question is to ask whether it is right that an injured pedestrian, who finds themselves unable to work as a result of a road accident and therefore unable to support their family, should be forced to go to court to show that the car driver who injured them is at fault. In all probability the car and the pedestrian both made mistakes and the combination of errors led to the casualty. However, the car driver is protected by a steel box and is required by law to carry insurance because cars have the potential to cause damage. The pedestrian’s need for financial help and lack of insurance often mean that expensive action in a criminal court is often the route chosen to get help, unnecessarily criminalising drivers. Nobody is arguing that pedestrians should be required to hold insurance to use the roads, so why should anyone object to new civil law provisions to ensure that everyone on the roads is protected in the event of an injury?
The second question is to ask if there is any evidence that the strict and presumed liability provisions that have been introduced in most civilised countries around the world have resulted in harm being caused. There is disputed evidence about whether such laws have had a neutral or very positive impact on casualty rates, but I have yet to see any evidence that they have made casualty rates worse. There is also disputed evidence about whether the net effect on driver insurance premia has been upwards or downwards. Lower court costs reduce premia, but more pay outs are made to vulnerable road users. New well drafted laws in this country will not simply copy those from another country, but be designed to fit within our legal systems. Should we be paralysed into not doing something new because of a lack of certainty about the scale of the positive impacts?
The debate over the last month in LTT does not yet do justice to this important topic. I think it is very clear that we need to improve our presumed and strict liability laws. We all need to be able to walk safely, yet pedestrian activity has been falling faster than pedestrian casualties in many places. For example In 2000 the fatal and serious casualty rate for walkers in Scotland was 12 times that for car users per mile travelled, but in the latest statistics this ratio has risen to 19.
We must be able to share our roads better, and set out the rules for doing so more clearly, so I would encourage everyone to sign up in support of the campaign at http://www.roadshare.co.uk.”
Great piece on Roadshare legislation by SNP Councillor Jim Orr in the Scotsman suggesting the SNP should change their policy on this at their forthcoming conference. http://www.scotsman.com/news/after-an-accident-the-driver-s-insurers-should-pay-1-3595751
Being dead is not the best way to reduce traffic. However current policy often assumes this is the case by using taking population level analysis of values of time and values of life. A more rational approach to policy would be to identify ways to save lives and ways of funding these improvements.
http://www.elseviersocialsciences.com/transport/pdf/tra28_2.pdf
This great paper from Esra Hauer (1994) exposes why policy is often wrong. People’s preferences are not well-defined, stable, and consistent over time. David Levinson (2014) argues that giving legitimacy to public policy via a jury or a ballot may be better. Perhaps the opportunities emerging through the digital democracy movement can help to solve this long standing problem.
If anyone does not support the Roadshare Campaign then can they tell me why it matters whether the 13 year old schoolgirl in the following example was 50%, 70% or 90% to blame for her injuries. Surely what matters in a civilized society is that we protect all road users. Pedestrians are not required to carry insurance and nobody is suggesting that they should. Therefore to protect all road users we need Presumed Liability legislation.
“On the 12th January 2004, on the A98 between Banff and Fraserburgh, a 13 year old schoolgirl was seriously injured in a collision with a car. She had got off a school minibus and gone around the rear of the stationary bus to cross the road. She was struck by a car travelling at 50mph. The case was heard before a Judge who found the girl 90% to blame. The decision was appealed and
the Appeal Court found the girl 70% to blame. That decision was also appealed and the Supreme Court found the girl 50% to blame issuing judgement on the 18th Feb 2015, more than 10 years after the incident.”
Should our children need to wait 10 years to receive compensation for serious injuries? Had the girl lived elsewhere in Europe where there is presumed liability legislation the girl would have been automatically awarded compensation as road traffic liability laws are designed to protect children. To be a socially responsible nation Scotland needs Roadsharing legislation. Back the campaign at https://www.change.org/p/pass-a-member-s-bill-for-presumed-liability-between-motorists-cyclists-and-pedestrians
The case of Sally Low. An excellent article in the Law Society of Scotland Journal by Brenda Mitchell http://www.journalonline.co.uk/Magazine/60-9/1020696.aspx
The feature on BBC Good Morning Scotland about the research on the benefits of roadsharing legislation is now available at audioboom https://audioboom.com/boos/2975753-research-report-derek-halden-and-jamie-aarons-discuss-findings