Brenda Mitchell, Lawyer with Cycle Law Scotland and founder of the Road Share Campaign for Presumed Liability presents to members of the Scottish Parliament's Cross Party Group for Cycling.

1. 1

2. The
star*ng
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
ac*ons.
When
considering
a
claim
for
compensa*on,
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
compensa*on
is
wrong
and
out
of
control.
Some
even
suggest
we
have
a
“compensa*on
culture”
yet
as
Sheriff
Principal
James
Taylor
stated
in
his
Review
Of
Expenses
and
Funding
of
Civil
Li*ga*on
in
Scotland,
“there
is
a
different
culture
in
Scotland“
and
there
is
no
evidence
of
a
“compensa*on
culture
“
in
Scotland.
The
whole
purpose
behind
an
award
of
compensa*on
is
an
aPempt
to
put
an
injured
individual
back
into
the
posi*on
they
would
have
been
in
but
for
the
accident.
2

3. 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
compensa*on
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
injus*ce”.
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?
3

4. There
is
no
automa*c
en*tlement
to
compensa*on
under
presumed
liability.
Presumed
liability
is
about
transferring
the
burden
of
proof
in
recogni*on
of
who
brings
most
harm.
However,
Road
Share
proposes
to
protect
the
children
(<14),
elderly
(>70)
and
the
disabled.
They
should
be
compensated
without
having
to
prove
fault.
4

5. 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
compensa*on.
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
ac*on
had
to
be
raised
in
court
and
it
took
12
months
for
Mark
to
receive
compensa*on.
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
compensa*on.
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
sePled
11
months
aeer
the
incident.
5

6. To
suggest
that
presumed
liability
will
somehow
turn
Scots
Law
on
its
head
is
a
complete
nonsense.
Principles
of
Scots
Law
are
such
that
the
individual
has
always
been
protected
where
the
concept
of
harm
is
relevant.
Take
for
example
the
Animal
Scotland
Act
where
a
dog
owner
is
strictly
liable
if
his
or
her
dog
bites
an
individual.
The
work
place
had
strict
liability
un*l
it
was
removed
following
upon
Sec*on
69
of
the
Enterprise
and
Regulatory
Act.
Before
that
and
following
introduc*on
of
strict
liability
in
1993,
fatal
accidents
in
the
workplace
were
reduced
from
1.3
per
hundred
thousand
to
0.5
per
hundred
thousand
over
a
20
yr
period.
The
Consumer
Protec*on
Act
extends
strict
liability
to
the
manufacturer
or
supplier
of
defec*ve
goods.
If
an
individual
is
injured
as
a
result
of
a
defec*ve
product,
the
manufacturer
or
supplier
is
strictly
liable
to
compensate
that
individual.
All
these
examples
take
into
account
harm
and
who
brings
most
harm
to
a
situa*on.
Why
then
is
it
so
difficult
for
us
to
understand
that
presumed
liability
recognises
the
concept
of
harm?
Why
can
we
not
take
that
one
small
step
forward?
6

7. Judges
do
take
into
account
the
aspect
of
blame
worthiness.
We
seem
to
be
half
way
there.
For
example,
Lady
Jus*ce
Brenda
Hale
stated,
“the
court
has
consistently
imposed
upon
the
drivers
of
cars
a
high
burden
to
reflect
the
fact
that
the
car
is
poten*ally
a
dangerous
weapon”.
7

8. 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
ac*ve
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
bePer
culture
of
road
share.
8

9. Presumed
liability
is
about
responsibility.
Liability
acts
as
an
incen*ve
to
exercise
care.
If
you
are
in
control
of
an
object
of
danger,
then
it
is
fair
and
reasonable
that
you
should
be
presumed
liable
to
compensate
those
injured
following
a
collision.
Presumed
liability
is
also
about
social
responsibility.
Some
complain
that
it
is
not
fair
and
yet
look
at
the
evidence
from
the
French
insurance
industry.
The
FFSA
say
that
“insurers
now
support
the
"Loi
Badinter"
because,
as
well
as
providing
quick
and
fair
compensa*on,
it
has
also
“given
high
protec*on
to
vulnerable
road
users”
and
that
“aeer
the
implementa*on
of
the
law,
the
road
traffic
accidents
decreased.”
As
a
Na*on,
how
seriously
do
we
take
the
health
and
safety
of
vulnerable
road
users?
As
a
Na*on,
do
we
care
more
about
the
insurance
industry
or
more
about
our
children,
elderly
and
the
disabled?
9

10. The
imposi*on
of
liability
affects
how
categories
of
actors
respond
to
the
risks
they
create.
Liability
acts
as
an
incen*ve
to
exercise
care.
Presumed
liability
will
have
a
posi*ve
affect
not
a
nega*ve
one.
10