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.