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Scotland has seen a big increase in cycling, with high profile professional athletes such as Chris Hoy and Bradley Wiggins doing much to raise its profile.  Concerns have been raised, however, about cyclists’ safety.  This has led to calls for a change in the law to provide better protection.

Most of us, if we haven’t taken to the road on two wheels ourselves, have noticed greater numbers of cyclists and mass participation cycling events such as Ride the North and Etape Loch Ness. Other gatherings of cyclists, such as Pedal on Parliament, are aimed at highlighting concerns that the Government could do more to promote cycling and improve road safety.

One area where there is pressure to change the law is in relation to the question of who is responsible in the event of an accident involving a cyclist and a driver. At present, in the event of such an accident and a civil claim for compensation, it is up to the injured person, usually the cyclist, to prove that the driver was at fault. Overcoming this onus can be difficult but being successful with a claim can be crucially important to the injured person if they have sustained serious injuries and require compensation to pay for care costs and to make up for lost income.

A campaign has been launched to try to change the legal position so that the starting point would be that the driver is deemed to be at fault, unless he can show otherwise. This is sometimes referred to as “strict liability” but is really just shifting the onus of proving fault from the cyclist to the driver.

If such a change is made, individual cyclists injured would be more likely to receive compensation from drivers’ insurers, and to receive that quicker.

It is suggested that making drivers responsible unless they prove otherwise would help to make them more aware of cyclists, more conscious of the risk of accidents and would therefore reduce the number of injuries.

It is also claimed that a new law would help to change the culture between cyclists and drivers to encourage greater mutual respect. That might in turn help to increase the number of people using bikes. This would be good, it is said, given the health and environmental benefits of more people choosing to use bikes in preference to cars.

In response to this call for legislative change, Transport Scotland carried out a review of the impact of strict liability legislation in other European countries. They compared the number of serious injuries suffered in collisions by cyclists in countries which have rules of this type in place against the number in countries which do not. Whilst they noted a reduction in the number of serious accidents involving cyclists and drivers generally, there did not seem to be a link to whether there were strict liability rules in place or not.

Although it has been suggested Transport Scotland’s review was too narrow in scope, the Scottish Government’s approach, at least at present, appears to be to prioritise money and effort on developing cycle paths and other initiatives rather than to introduce strict liability rules. However, the campaign continues and that may not be the last word on the issue.

Colin Sandilands, Partner and Solicitor Advocate

Chambers Leading Firm 2019

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