Presumed Liability: The Facts

Cycle Alert speaks to Rod Mitchell of Cycle Law Scotland who is himself, a passionate campaigner for presumed liability in Scotland.  Rod’s wife, Brenda Mitchell, founded the Road Share Campaign which seeks to introduce presumed liability onto Scotland’s roads and bring some legal protection to all vulnerable road users.  Underpinning the campaign is a call for motorists who hit cyclists to be deemed to be at fault unless it can be proved otherwise.

The same “presumption of liability” would also apply to cyclists who hit pedestrians, mimicking the system in many European countries where the blame is deemed to lie with the larger vehicle unless it can be conclusively shown that the more vulnerable road user was at fault.  Cycle Alert finds out more…

Do we need a review in Britain over the issue of presumed liability and motorists?

Yes, we most certainly do. The UK and Ireland along with Romania, Cyprus and Malta are the only countries in Europe who are not managing civil claims for compensation following a road traffic collision between a motorist and cyclist or pedestrian under some form of presumed or strict liability legislation.

What is presumed liability and what would be the benefits?

Presumed liability for road traffic collisions would mean that following a collision between a motorist and a cyclist or pedestrian, the motorist (in practice, their insurer) would be presumed liable for injury, damages or loss, unless they can demonstrate otherwise.  The same would apply in cases where cyclists collide with pedestrians.  It is fairer than the current fault-based system as it shifts the burden of proof from the vulnerable to the powerful.

Benefits

1. Resolving compensation claims for injured cyclists or pedestrians would be much quicker and easier as the matter would ordinarily be settled by the third party insurer.  Currently, vulnerable road users have to establish fault and this is often a difficult, expensive and time-consuming process. 

2. Presumed liability would create an incentive to exercise care. It would simply encourage and remind drivers to drive carefully at all times as is wholly appropriate given the potential risks to vulnerable road users of a motor vehicle driven carelessly.  This should then have a positive impact of reducing accidents involving vulnerable road users.

3. There is a clear and strong association between presumed liability legislation and higher levels of walking and cycling. 

4. Lower litigation and insurance costs are achieved due to a higher proportion of victims obtaining compensation quickly and fairly. 

Why do we need it?

Because at present our fault based system favours the more powerful and not the vulnerable. It is a David v Goliath (Injured person v Insurer) situation.

How would it work in practice?

If a motorist were to be involved in a collision with a bicycle or pedestrian, then 2 things normally happen. Firstly, the collision is reported to the Police/Emergency Services who should attend the scene. They will assess the situation and decide whether to recommend to the Crown Office to press Criminal Charges (e.g. Careless or dangerous driving). Secondly, the injured party has a right of compensation in Civil Law for injury, damage or loss against the insurer of the car driver. He or she should be able to intimate that claim via a Solicitor and be paid in a timely fashion to help them get back to the position they were in before the collision took place.

presumed liability

Which countries have it?

Nearly every country in Europe and other parts of the World have some form of presumed or strict liability legislation. The ones which don’t are the UK and Ireland, Romania, Malta and Cyprus.

Who benefits?

Everyone benefits apart from the lawyers.

Injured parties get access to compensation more quickly to help get them back on their feet and back to work.  Insurance companies can pay out more quickly without additional legal costs, and vulnerable road users (those who cycle and those who walk) get protection in Law.

A better road share culture should develop over time.

Who pays for it?

Insurers will pay compensation as they do today. There are no additional costs. Motorists by Law are required to have both a license and also a policy of insurance over their vehicle because it has the potential to cause harm. If a car driver injures a cyclist or pedestrian, then their insurer will pay out unless they believe that the cyclist or pedestrian contributed in some way to the cause of the collision.

What’s the difference between strict liability and presumed liability? 

Strict liability does not allow a motorist to escape a finding of liability to pay compensation in a civil action for damages. Liability attaches to some extent regardless of fault. Presumed liability does allow a motorist to escape liability to pay damages to an injured cyclist or pedestrian. Fault is presumed but can be rebutted.  In presumed liability, the motorist needs to prove negligence on the part of the cyclist or pedestrian, whereas in a fault based system, it’s for the cyclist/pedestrian to prove negligence of the part of the driver. Presumed liability merely seeks to shift the burden of proof from the vulnerable to the powerful.

Is this “guilty until proven innocent”?

This has nothing to do with “guilt” or “innocence”. “Innocent until proven guilty” applies in Criminal Law and remains unchanged. 

Isn’t a presumption of motorists’ liability unfair unless proper regulation of cyclists’ behaviour is introduced too?

This is a separate issue and needs to be tackled at the same time. All cyclists, motorists and pedestrians need to obey the Highway code and have mutually respect for each other whilst sharing our roads.

How have fleet operators reacted to proposals for presumed liability?

Here in Scotland, we cannot find any fleet operator who is against Presumed Liability. CILT have been discussing it for some time now. They are also unhappy with Insurers who delay paying out to compensation victims

Is it going to happen soon?

We would love it to happen soon but the reality is that it will take some time to educate MSPs, “Active Travel” stakeholders and the general public that this is the right thing to do for a socially responsible Nation.

What is the most effective way for us to advocate to our support?

We need to continue to educate MSPs, stakeholders and the general public. There are lots of misconceptions and myths out there and we need to remove them. One of the best ways to demonstrate your support is to sign our online petition which can be found on the home page of our website at www.roadshare.co.uk

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