Pressure to introduce presumed liability in Scotland

The bereaved families of two cyclists killed in Scotland have called on the Scottish Parliament to bring Scottish civil law in line with the majority of other European countries by introducing a presumed liability law (also known as ‘stricter liability’ or ‘no fault liability’).

Presumed liability in practice

Under presumed liability, motorists must prove they were not at fault in incidents with vulnerable road users such as cyclists. Cyclists or pedestrians would be entitled to full compensation from the driver’s insurance unless the driver (or in practice their lawyers/insurers) can show that the injury was caused by the cyclist or pedestrian behaving in a way that fell well below the standard that could be expected of them, taking account of their age, abilities and the circumstances of the collision.

It must be stressed that the criminal law principle of ‘innocent until proven guilty’ would not be affected by the proposal. Presumed liability only affects civil law, criminal liability would still be determined in the same way as it currently is.

At present, under Scottish and British civil law, the victims of road incidents must prove the other party’s liability. The UK is one of just five countries in the European Union which doesn’t have the law – the others being Cyprus, Malta, Romania and Ireland.

Under the current system victims can wait years to get compensation for their injuries, damage or loss, racking up legal and medical bills during this time, not to mention the stress and worry associated with not knowing how or when the bills will be paid. This is because they must wait until criminal cases have concluded before police files containing important evidence can be released to solicitors to use in civil claims.

The Scottish Government committed itself to investigating the benefits of presumed liability in the ‘Cycling Action Plan for Scotland’ (CAPS), published in 2010. The Government’s review found no clear evidence of a link between countries with presumed liability rules and improved cyclists’ safety. The review compared cycle safety trends between 1990 and 2010 in Scotland, Germany and Italy, but failed to mention that presumed liability laws were introduced in Germany and Italy decades earlier, hence were irrelevant to casualty rates post-1990.

The Road Share Campaign

The campaign for presumed liability in Scotland, Road Share, which was established by the law firm Cycle Law Scotland and is now led by a multi-disciplinary steering group with representation from Pedal on Parliament, CTC Scotland, Spokes East Lothian and several other organisations involved in promoting walking and cycling in Scotland. CTC Scotland Councillor, Chris Oliver, chairs the Road Share steering group. This article by Chris Oliver outlines in more depth what presumed liability would mean for Scotland. The families of Andrew McNicoll, killed in Edinburgh in January 2012 and Sally Low, killed in Moray in 2013 have now added their support for the campaign. 

The Road Share campaign is due to present research into the benefits of presumed liability for road safety to MSPs in November and is calling for a Members' Bill for presumed liability to be passed by the Scottish Parliament. The petition calling for the Bill to be passed has reached almost 7000 signatures. A major international cycling personality who supports the Road Share campaign is due to come on board when the research report is published. 

A year ago this week, the Scottish Parliament held a cross-party debate into presumed liability, which highlighted varying degrees of support for the proposal from different parties. The strongest support came from the Green Party, whose MSP Alison Johnstone led the debate. Most SNP members rejected the idea at the time, while generally supporting the need to do more to improve cycle safety.  

CTC supports the principles of Road Share’s campaign to introduce presumed liability in Scotland and is planning research into how presumed liability works in practice on the continent.  Further details about presumed liability can be found in CTC’s campaigns briefing on ‘Compensation for injured cyclists’.