QMU - Cycling Connections - Cycling and Civil Law
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Jodi Gordon, specialist cycling Lawyer at Cycle Law Scotland, discusses common cycling accidents, fault-based compensation systems and some client case studies. She also argues for the introduction of Presumed Liability.
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QMU - Cycling Connections - Cycling and Civil Law
- 1. “Cycling and Civil Law” 22nd Nov 2017
- 3. Prove fault
- 4. 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 people’s lives, health and property. No fault liability
- 5. Industrial Revolution Locomotive on the Highways Act (1861) Locomotive Act (1865) Lord Bramwell Powell v Fall (1880)
- 6. Advent of motorised vehicles Gibbons v Vanguard (1908) Wing v London General Omnibus (1909)
- 7. What were our European neighbours doing? “Betriebsgefahr” 1907 - Germany 1920 – Netherlands “Loi Badinter” 1985 - France
- 8. Romania Malta Cyprus UK Ireland The 5 who ignore the concept of harm
- 9. No country in the World has achieved both HIGH levels of walking + cycling and LOW casualty levels without presumed liability Presumed Liability Cycling fatalities (1975-85) - 676 per annum (1985-95) - 418 per annum ‘Loi Badinter’ introduced 38% decrease www.roadshare.co.uk
- 10. Fault based system “To require an injured person to prove fault results in the gravest injustice to many innocent persons who have not the wherewithal to prove it.”
- 13. Animals Scotland Act (1987) Against Principles of Scots Law
- 15. Mark Lonnen Fault based system - Dooring
- 16. Walter Hamilton Fault based system - Junctions
- 17. Fault based system - Roundabouts
- 18. Jennifer Wallace Fault based system - Passing
- 19. Challenges – Police Reporting
- 20. Alex Gibson Challenges – Police and Close Passing #OPCLOSEPASS
- 22. Drivers
- 23. Drivers
- 24. Drivers
- 26. “Excuses” • “Red light jumping” • “Launched off the pavement” • “Came from nowhere” • “Riding too fast” • “There was a low sun” • Changing their story • Refusing to provide insurance details
- 28. Road Hazards
- 29. Robinson v SBC
- 31. Cycle Paths
- 32. Cycle Paths
- 33. Joe’s experience
- 34. Jim’s experience
- 35. What if it happens to you?
- 36. What if it happens to you?
- 37. What to do at the scene of an accident • STOP • CONTACT the Police • OBTAIN registration number • PHOTOGRAPH the scene/road surface/position of vehicles.
- 38. Collision Card
- 39. Legal Advice and Assistance Injuries Bike Helmet
- 41. Campaigning for safer cycling in Scotland Campaign for Presumed Liability
- 42. Sally Low
- 43. Sally Low video
- 44. Making a positive difference Q and A?
Editor's Notes
- 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.
- 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 people’s lives, health and property.
- 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.”
- 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.
- So, what were our European neighbours doing at this time?
- 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.
- 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.
- 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?
- 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?
- Mark Lonnen was injured when a car driver opened his door into his path. Despite the straight forward circumstances, the driver’s 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.
- Gemma Scott. Gemma was cycling her bike in Edinburgh Park on the outskirts of Edinburgh and was approaching a roundabout when suddenly a car driver hit her from behind. Gemma was thrown from her bike and suffered soft tissue injuries to her hip, pelvis, back and neck. Gemma approached Cycle Law Scotland to help her recover compensation for damage to her bike and her own injuries. The car driver’s insurer denied liability saying that Gemma had changed lanes and ridden into his path. The insurer offered to settle the case on a 50/50 basis for just over £3000, which was less than half what had been requested. Cycle Law Scotland litigated the case. In the interim, it became clear that Gemma was still experiencing psychological issues as a result of the collision and so we appointed an expert to assess her. A course of CBT (Cognitive Behavioural Therapy) was recommended to help her overcome her fears. Just 2 days before the court hearing, almost 2 years after the original incident, an offer of £13,500 was received and accepted by our client.
- 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 driver’s 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 driver’s 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 driver’s 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.
- Ivar Brencevs CLS requested an abstract report. Police Scotland in Aberdeen have not provided a full accident report as they say they only produce accident reports for collisions involving death or serious injury! Our client advised that Police attended the scene and asked him what happened. He said he struggled to communicate with them as he was concussed and very confused. He had red paint markings on his clothing as a result of the collision having been thrown across the roundabout to the far side. Someone in a Range Rover who was travelling behind the cyclist as he crossed the roundabout phoned the Police. A medical student attended to our client before the Emergency Services arrived. Neither of these two witnesses were talked to by the Police and no statements were taken. Our client believes his bike was left at the scene of the accident and not taken by the Police. There is no trace of this bike. The Police should have recovered it. The client’s wife went to a local Police station in Aberdeen a few days following the accident. She asked what the process was. Client advised that the Police station she attended called the station where the officer(s) who attended the scene was stationed and an appointment was made for the following day at the client’s home address to discuss the accident circumstances. According to our client, no one turned up for this appointment and he has been left with no further knowledge of what the Police did on the day of the accident. There is no confirmation of the driver being charged despite completely failing to give way to our client was he was established on the roundabout and colliding with him at significant speed.
- 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 driver’s 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 driver’s 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 driver’s 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.
- Insurer and Policyholder Excuses
- Insurer and Policyholder Excuses
- 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 driver’s 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 driver’s 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 driver’s 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.