Police Scotland were asked to confirm the number of road traffic collisions across Scotland involving a motorist and cyclist that were referred to the Procurator Fiscal in 2012 - a year in which the Scottish Government recorded that 9 cyclists were killed and 902 cyclists injured on Scotland’s roads.
Of the legacy constabularies capable of answering the question, Lothian & Borders Police submitted only 44 cases to the Procurator Fiscal, out of 400 recorded incidents; Highlands and Islands, 11 out of 47 incidents. A subsequent FOI request to The Scottish Court Service failed to uncover the number of motorists subsequently prosecuted or found criminally guilty in motorist/cyclist collisions.
Brenda Mitchell, a Personal Injury lawyer and founder of the Road Share campaign for presumed liability, says that this severely undermines the argument that cyclists are protected by criminal law because the sanctions imposed by criminal convictions deter careless or dangerous drivers.
She says:
“One of the arguments often used against a system of presumed liability for vulnerable road users is that the existing criminal law provides all the protection a cyclist or pedestrian needs. If drivers are regularly prosecuted for careless driving offences where cyclists have been injured, it might alter driver behaviours and at the same time protect cyclists. But these figures suggest that this simply is not the case.”
Cyclist, Colin McIntyre, 48, was involved in a road traffic collision in September last year, which left him unable to work for nearly a month. A taxi turned into his path on Lauriston Place, knocking him off his bike, causing a fracture to his left elbow and a laceration injury to his lower right leg. Despite being classified by the Police as ‘serious’ and the taxi driver clearly at fault, the incident was taken no further.
A competent and keen cyclist, Colin commuted the 10 mile journey to his work at HMRC on Bankhead Avenue from his home in Portobello two or three times a week. Colin was cycling in a cycle lane and wearing a helmet when the taxi cut across his path to turn right into Chalmers Street. The driver was very apologetic and took him to hospital. There were witnesses.
The injury to Colin’s elbow required specialist physiotherapy and severely impacted on his everyday life. He said: “My 10 year old daughter and I had a ritual every day where she would run and jump into my arms. We couldn’t do that and it was incredibly upsetting. Beyond that, not being able to drive or get around easily suddenly meant I couldn’t visit my elderly mother or help around the house with things like shopping.”
He added: “Despite the fact that the taxi driver executed a turn in front of me and I sustained serious injuries, the police simply suggested that we should sort matters out for ourselves.”
Rob Mackie, 29, commutes to work by bike every day. At the time of his accident, he was travelling northwards down Dundas Street when a car came out from Northumberland Street with the intention of crossing straight over. The driver failed to give way and Rob hit the front nearside of the vehicle, going over the bonnet. The driver admitted that she didn’t see him.
Rob ended up in hospital with a fracture to his right clavicle and was off work for over a week. His bike was written off and there was damage to other personal belongings. The police attended the incident, recording it as ‘serious’ and there were several witnesses, but the driver was not charged.
Rob said: “It was carelessness on the part of the driver, and the impact on my life is on-going. I had a number of physiotherapy sessions at the time, but the bone has not healed correctly and I now need surgery to realign the bone. My shoulder can still hurt, and will ache after a long day, to the extent that there are some activities, such as tennis, I have been unable to do since the accident. It took three months before I was back on my bike and that added other frustrations such as relying on public transport.”
In both situations, the cyclists had to prove the motorists were at fault before receiving any compensation from the insurance companies.
A regime of presumed liability in civil law, if adopted, would mean that following a collision between a motorist and a cyclist or pedestrian, the motorist would be presumed to be liable for injury, damages or loss, unless they can prove otherwise, thereby shifting the burden of proof from the vulnerable (as it is currently) to the powerful.
In conclusion, Brenda Mitchell said:
“We want to see presumed liability in civil law so that there is a greater sense of fairness for the likes of Rob and Colin. We should be looking at putting the vulnerable at the core of our civil law process and at the same time the criminal justice system whilst acting in the public interest has to toughen up and ensure drivers are prosecuted when they commit road traffic offences.
“There is a notable lack of consistency in how the police respond to incidents involving cyclists and motor vehicles. In cases we have dealt with, the police will categorise a collision as ‘serious’ because the cyclist sustains fracture injuries, and yet the careless motorist is sometimes charged and sometimes not. Can we really be happy with a situation that excuses careless driving, when it can cause such extensive injuries?”