Brenda Mitchell, founder of specialist law firm, Cycle Law Scotland and also the Road Share Campaign presents her arguments for stricter (presumed) liability in Civil Law at a Parliamentary Reception hosted by MSP Alison Johnstone at Holyrood.

1. The
Road
Share
campaign
was
launched
in
April
2013
by
Cycle
Law
Scotland
to
encourage
the
Sco?sh
Government
to
introduce
a
system
of
stricter
liability
in
Scots
civil
law
to
give
protecCon
to
vulnerable
road
users
(cyclists
and
pedestrians.)
1

2. Before
I
discuss
the
campaign,
I
feel
I
should
give
you
all
some
background
about
myself
and
Cycle
Law
Scotland.
Cycle
Law
Scotland
was
founded
in
2011
as
a
joint-­‐venture
with
Thompsons
Solicitors
who
have
a
long
established
background
in
campaigning
and
were
recognised
by
the
legal
profession
at
this
year's
Law
awards
by
winning
“Firm
of
the
Year.”
At
the
same
awards,
I
was
fortunate
enough
to
win
“Solicitor
of
the
Year”
for
2013.
On
that
point,
there
are
lots
of
references
nowadays
to
cycle
Lawyers
and
whether
cyclists
need
a
brand
of
lawyers
just
for
them.
My
answer
to
that
is
quite
simply
“yes,
they
do”.
The
Legal
profession
is
a
powerful
one
but
only
if
it
assists
in
bringing
about
change
for
the
beUer.
Our
campaign
goes
hand-­‐in-­‐hand
with
promoCng
cycle
safety
and
educaCng
the
public.
Every
day
we
are
exposed
to
human
suffering.
Cyclists
rarely
suffer
minor
whiplash,
they
predominately
suffer
severe
upper
limb
fractures.
Chris
Oliver,
Orthopaedic
surgeon
and
immediate
past
Chairman
of
CTC
Scotland,
is
here
tonight
and
in
a
recently
published
arCcle,
he
confirmed
that
whilst
he
loved
his
job,
he
was
growing
Cred
of
fixing
broken
cyclists.
2

3. Well,
we
are
one
of
only
five
countries
who
currently
have
no
regime
in
place
for
cyclists
or
pedestrians.
The
others
are
Cyprus,
Malta,
Romania,
and
Ireland.
Are
we
keeping
good
company?
Not
really,
other
naCons
across
the
world
also
have
strict
liability
regimes
including
Australia,
New
Zealand,
India,
Bangladesh
and
China
for
the
past
10
years.
Looking
at
Europe,
Germany
introduced
strict
liability
in
the
early
20th
century,
Italy
in
1969,
Denmark
in
the
mid
80s,
France
in
1985
and
the
Netherlands
in
the
1990s.
We
are
not
behind
the
curve,
we
are
decades
behind
the
curve!
When
you
consider
why
countries
such
as
Denmark
and
France,
for
example,
introduced
stricter
liability
regimes,
it
was
in
direct
response
to
a
need
to
reduce
road
traffic
collisions
involving
cyclists
and
pedestrians.
It
is
important
to
note
that
not
all
regimes
were
created
equally
and
the
regimes
do
vary.
3

4. So,
what
are
we
proposing
for
Scotland?
One
of
the
remarkable
achievements
of
Roman
Jurisprudence
was
the
development
of
no-­‐fault
liability
or,
in
other
words,
strict
liability.
This
is
where
a
person
is
held
liable,
not
for
his
failure
to
display
the
diligence
of
a
reasonable
man,
because
he
is
in
control
of
an
object
of
danger
to
another's
life,
health
or
property.
The
concept
behind
strict
liability
is
quite
simple.
It's
designed
to
protect
the
vulnerable.
However,
it
has
to
operate
as
part
of
a
package
of
measures.
What
we
propose
is
presumed
liability
for
the
14
to
70
age
group.
A
driver
would
be
presumed
liable
in
civil
law
to
compensate
an
injured
cyclist
or
pedestrian
if
he
collides
with
and
injures
them.
Equally,
a
cyclist
in
civil
law
would
be
presumed
liable
and
have
to
compensate
a
pedestrian
should
they
collide
with
and
injure
them.
In
other
words,
liability
will
aUach
but
it
is
always
open
to
a
driver
or
cyclist
to
allege
fault
on
the
part
of
the
injured
individual.
Further
protecCon
however
must
be
put
in
place
for
those
who
are
even
more
vulnerable
i.e.
children
under
the
age
of
14
and
the
elderly
over
the
age
of
70.
In
4

5. So
what
are
the
benefits?
It
is
clear
that
in
those
naCons
with
high
rates
of
cycling
and
high
levels
of
cycle
safety,
stricter
liability
exists
as
part
of
a
kaleidoscope
of
policies
designed
to
enable
safe
cycling.
It
leads
to
a
culture
of
mutual
respect.
The
Sco?sh
Government
has
confirmed
to
us
that
cycling
is
fun,
is
healthy,
is
virtually
free,
and
is
the
cheapest
form
of
transport.
It
helps
maintain
a
healthy
mind
and
body
but
people
will
only
take
to
cycling
if
they
feel
safe
and
right
now
safety,
or
a
percepCon
cycling
is
unsafe,
is
the
single
most
important
factor
that
stops
individuals
from
taking
to
the
roads.
Ask
yourself
the
quesCon.
Would
you
be
happy
with
your
children
cycling
to
school
in
the
city
centre?
Do
you
feel
secure
and
safe
when
you
cycle
on
“A”
roads?
I
wouldn’t.
5

6. We
never
said
this
would
be
easy.
As
Alison
reminded
me
at
the
Heels
‘n’
Wheels
event
during
the
Edinburgh
FesCval
of
Cycling
last
Summer,
she
said,
“This
is
going
to
be
a
marathon
not
a
sprint.”
6

7. Where
did
this
idea
of
stricter
liability
in
Civil
Law
come
from?
It’s
not
a
mad
cap
Idea
from
Road
Share.
It
was
embedded
in
the
Cycling
AcCon
Plan
for
Scotland,
which
was
iniCally
published
in
2010.
It
set
out
a
vision
to
get
10%
of
all
journeys
by
bike
by
2020.
The
acCon
plan
was
structured
around
key
issues
that
emerged
from
the
Sco?sh
Government’s
consultaCons
held
throughout
2008
and
2009
and
it
set
out
a
framework
to
achieve
that
vision.
It
also
set
out
what
the
Sco?sh
government
will
do.
I
say,
“will
do.”
Powerful
stuff
7

8. Let’s
have
a
look
at
the
two
separate
acCon
points
which
specifically
related
to
Strict
Liability.
AcCon
point
12
was
as
follows:
To
undertake
a
legisla2ve
search
to
reveal
the
operaCon
of
liability
Laws
and
how
they
work
in
other
countries
in
Europe
and
around
the
World,
and
whether
there
is
robust
evidence
of
a
direct
link
to
levels
of
cycling
and
KSIs.
8

9. The
outcome
expected
from
AcCon
Point
12
was
to
be…
A
comprehensive
report
on
liability
laws
and
how
they
affect
cycling.
9

10. The
second
acCon
point
related
to
Strict
liability
was
as
follows:-­‐
To
try
and
iden2fy
what
kind
of
hierarchy,
if
any,
might
be
established
and
develop
an
educa2onal
awareness
campaign
for
all
road
users.
10

11. The
outcome
expected
from
AcCon
point
13
was
to
be….
A
reduc2on
in
the
rate
of
cyclist
KSIs
11

12. So
what
happened
and
what
did
the
Government
do?
Well,
these
acCon
points
sat
on
the
back
burner
unCl
the
summer
of
2013
when
there
was
a
refresh
of
the
cycle
acCon
plan
for
Scotland.
Cycle
Law
Scotland
contributed
to
the
refresh
based
on
research
we
had
carried
out
earlier
in
the
year.
Somewhat
disappoinCngly,
however,
Transport
Scotland
confirmed
that
they
had
carried
out
their
own
desk
based
review
looking
at
the
basic
impact
of
strict
liability
legislaCon
in
a
number
of
European
countries.
They
concluded
that
“the
available
data
did
not
supply
robust
evidence
of
a
direct
causal
link
between
strict
liability
legislaCon
to
levels
of
cycling
and
KSIs
when
countries
like
the
UK
are
clearly
reducing
fataliCes
in
cyclists.”
Now,
no
one
here
needs
to
be
reminded
that
this
year
alone
12
cyclists
have
died
on
our
roads.
Spokes
have
conducted
research
which
shows
that
from
around
2005
there
has
been
a
divergence
with
motorists’
injuries
reducing
yet
cyclists’
injuries
increasing.
At
the
same
Cme,
evidence
appears
to
show
that
cycling
in
general
has
not
increased
so
therefore
something
has
gone
wrong.
12

13. No
it
wasn’t.
Thanks
to
brave
MSP's
and
in
parCcular,
Alison
Johnstone,
the
idea
survived.
Support
was
growing
from
across
the
poliCcal
spectrum.
On
29th
October
this
year,
one
of
the
longest
business
debates
ever
held
took
place
at
Holyrood.
Many
MSPs
spoke
out
in
favour
of
the
proposal
to
conCnue
to
debate
the
issue
of
stricter
liability.
Many
spoke
passionately
but
required
further
informaCon
and
others
were
wholly
against
the
idea.
However,
I
would
like
to
quote
ConservaCve
MSP,
John
Lamont,
who
summed
things
up
nicely
when
he
said,
“In
virtually
every
collision
between
a
car
and
vulnerable
road
user,
it
will
be
the
pedestrian
or
the
cyclist
who
is
injured.
I
fail
to
see
how
anyone
who
accepts
that
cyclists
have
an
equal
right
to
be
on
our
roads,
cannot
support
the
introducCon
of
legal
safeguards
that
address
the
imbalance.”
13

14. I
menConed
the
growing
support
across
the
poliCcal
spectrum.
These
include
Jean
Urqhuart,
Tavish
ScoU,
Alison
Johnstone,
John
Lamont,
Richard
Lyle
and
many
many
more
who
have
come
out
in
support.
They
are
not
the
only
ones.
Over
5350
individuals
have
signed
our
peCCon
calling
for
the
Sco?sh
Government
to
introduce
a
stricter
liability
regime.
There
is
support
from
numerous
individuals
including
Nick
Nairn,
Cameron
McNeish,
Lesley
Riddock,
Karen
Darke
and
from
Cycling
organisaCons
like
The
Bike
StaCon,
Edinburgh
Bicycle
CooperaCve,
CTC
Scotland.
Spokes,
Pedal
on
Parliament
and
most
recently
Sco?sh
Cycling
and
its
12,500
members.
There
are
so
many
more
and
all
your
support
is
greatly
appreciated.
However,
I
would
like
to
thank
in
parCcular,
ScoU
HasCngs,
as
I
know
that
during
the
course
of
his
rugby
career
he
met
with
some
brutal
opposiCon
but
nothing
could
have
prepared
him
for
the
“Call
Kaye
phone
in.”
Well
done
ScoU!
So
with
all
this
support
,is
there
hope?
14

15. At
the
end
of
the
debate
these
were
Keith
Brown,
Transport
Minister’s
words.
“Although
I
am
supporCve
of
nearly
all
the
statements
that
are
made
in
the
moCon,
I
cannot
support
it
in
its
current
form,
given
the
lack
of
robust
evidence
that
stricter
liability
could
have
posiCve
benefits
for
vulnerable
road
users.
However,
there
will
conCnue
to
be
debate
on
the
issue,
in
which
we
will
conCnue
to
parCcipate.”
I
am
pleased
that
he
has
commiUed
the
Sco?sh
Government
to
conCnue
to
be
involved
in
debate
and
the
Sco?sh
government
will
conCnue
to
be
a
parCcipant.
What
I
am
disappointed
about,
however,
is
his
reference
to
a
lack
of
robust
evidence
when
I'm
not
convinced
that
Transport
Scotland
actually
completed
the
comprehensive
research
they
commiUed
to
back
in
2010.
Here
is
just
one
example…
15

16. SomeCmes,
it
is
good
to
look
at
an
example.
Prior
to
1985,
France
had
a
fault
based
system.
I
have
never
parCcularly
thought
of
the
French
as
being
a
safety
conscious
naCon
and
you
can
see
here
the
example
of
traffic
aUempCng
to
navigate
the
Arc
de
Triomphe
–
chaos!
In
1985,
there
was
a
wholesale
shir
over
to
Strict
liability
where
a
driver
is
liable
to
compensate
a
cyclist
or
pedestrian
if
they
collide
with
and
injure
them.
There
is
no
defence
of
unavoidable
accident
and
there
are
severe
restricCons
on
allegaCons
of
contributory
negligence.
So
what
effect
did
this
have?
There
is
no
denying
that
bicycle
safety
has
improved
markedly
and
figures
from
the
OECD,
being
the
latest
staCsCcs
published
in
2012,
confirmed
that
the
fatality
rate
for
cyclists
fell
by
66%
from
1990.
Granted,
there
had
been
general
improvements
in
road
safety
and
you
cannot
isolate
strict
liability
as
being
the
sole
cause
of
that
significant
reducCon,
but
it
did
play
a
role.
In
the
Netherlands,
it
is
three
Cmes
safer
to
cycle
compared
to
the
UK.
16

17. Fault
based
is
the
current
system
whereby
it
is
necessary
to
establish
negligence
before
being
awarded
compensaCon.
What
we
are
suggesCng
is
that
with
the
introducCon
of
stricter
liability,
the
current
system
would
be
greatly
improved.
At
present
no
account
is
taken
of
vulnerability
to
injury.
The
concept
of
strict
liability
is
not
unusual
in
Scots
law
and
exists,
for
example,
in
consumer
protecCon
and
control
of
animals.
Furthermore,
it
did
exist
in
the
workplace
regulaCons
unCl
the
dreadful
Enterprise
and
Regulatory
Act
in
2013.
Perhaps,
these
2
case
examples
will
help
to
explain
the
problem…
Jamie
Aarons
Jamie
was
cycling
to
the
gym
when
a
taxi
driver
swung
his
door
open
in
front
of
her.
She
didn’t
have
Cme
to
take
evasive
acCon
and
went
over
the
handlebars,
ending
up
shaken
and
sore
but
only
too
aware
it
could
have
been
much
worse.
The
taxi
driver
was
very
apologeCc,
picked
up
her
bike
and
gave
her
his
mobile
number
but
she
didn’t
make
a
note
of
the
taxi’s
registraCon
number.
To
be
honest,
as
it
was
dark
and
she
wasn’t
familiar
with
the
area,
she
simply
wanted
to
conCnue
her
journey.
17

18. So,
where
do
we
go
from
here?
Whilst
we
are
reassured
that
Keith
Brown
is
prepared
to
commit
the
Sco?sh
Government
to
conCnue
the
debate
on
the
issue,
we
need
more
than
just
debate.
A
working
party/steering
group
needs
to
be
set
up
and
it
should
commission
the
robust
research
as
outlined
in
CAPS
2010
We
need
to
do
more
if
we
are
to
achieve
that
vision
of
10%
of
journeys
by
bicycle
by
2020.
Scotland
should
take
the
lead.
There
is
huge
support
for
this.
The
Cme
has
come
for
Scotland
to
grasp
the
thistle
and
take
the
lead.
We
are
a
naCon
that
has
always
sought
to
protect
the
vulnerable
We
are
a
brave
and
bold
naCon.
Now,
with
all
that
talk
of
bravery
and
thistles,
don't
be
alarmed
at
the
next
slide.
18

19. For
those
of
you
who
have
just
taken
a
sharp
intake
of
breath,
this
is
not
a
map
of
Europe
as
of
19
September
2014!
Is
a
map
of
how
Europe
could
look
if
our
poliCcians
and
the
Sco?sh
Government
seriously
consider
this
issue
and
commit
us
to
joining
the
rest
of
our
European
neighbours
who
have
for
decades
been
prepared
to
protect
the
vulnerable
and
thereby
cement
our
place
as
a
cycling
friendly
naCon.
19

20. 20