Renewed call for presumed liability

New offences of causing death or serious injury by dangerous, careless, or inconsiderate cycling have recently come into force. Despite the offences of careless and dangerous cycling having already been around for several years, these new offences simply seek to bring the law into line with similar driving offences. The idea is to achieve parity between all road users who cause a fatality on the roads.

Whilst I’m not against the new amendment in principle, the question must be asked, what is this all for? In Scotland, there has never been a case involving a cyclist and pedestrian that has resulted in a death. Prosecuting authorities in Scotland have always been able to prosecute “bad” cycling resulting in a death or fatality through the common law offences of culpable homicide and culpable and reckless conduct. In Scotland, there is not the immediate need for reform that exists in England and Wales. In Scotland, the question is, does the law need modernising?

The problem with these new offences is that they don’t solve any problem that exists. They are merely a political football kicked from one end of the Commons to the other.

We need a change in the law that will drive behavioural change for all and protect the most vulnerable road users from the top down. We need a change in Civil Law and that change is Presumed Liability. Presumed Liability is an element of the Civil Law where, in collisions involving vulnerable road users, the more powerful road user is considered liable by default, unless they can prove that the vulnerable road user was at fault. This applies to all types of collisions.

The introduction of Presumed Liability would mean that following a collision, a motorist (in practice, the motor insurer) would be presumed liable to compensate an injured cyclist or pedestrian. Likewise, a cyclist involved in a collision with a pedestrian would be presumed liable to compensate the more vulnerable party.

Often when new laws are introduced, the question of enforcement comes up. But with presumed liability, these laws would be self-enforcing as they are, in effect, giving the hierarchical system in the highway code, real legal meaning. Presumed Liability enforces the new Highway Code provisions by its very operation.

The issue with cycling safety is that all too often, during inflamed debate, we lose sight of what it is that we are trying to achieve. We want safer roads for all road users, we want a system that protects the most vulnerable and places duties on the most powerful, we want a system that can have a real impact leading to positive behavioural change. The answer to all of this is Presumed Liability.

Presumed Liability is a natural component part of the overall review of road safety legislation. We need a considered package of reforms across both Civil and Criminal Law, rather than a piecemeal reaction to specific events which is what these new cycling offences are.

The new Government should stand up and take real action on road safety. All road users can rub along together in harmony, but it takes real change to the Civil Law to achieve this. Only once we have Presumed Liability in place, will we see attitudes between road user groups to each other change for the better and I for one, will keep campaigning for that to happen.

Thomas Mitchell – Partner – Cycle Law Scotland