Cycle safety campaigners are renewing calls for changes in the existing legal system to support families whose relatives have been killed in road traffic collisions.
Brenda Mitchell, founder of Cycle Law Scotland founder and Donald Urquhart CTC Scotland Secretary are speaking out against the often barbaric impact of Scotland’s fault-based civil laws coupled with the nation’s criminal procedures which deny relatives of the deceased swift access to justice.
In a case of fatal injury, the victim’s version of events can never be known and so the family of the victim must undergo the ordeal of proving a driver’s negligence to secure compensation from the motorist’s insurance company. Compounding matters, in these cases, the police must carry out a full investigation and if a driver is charged with causing death by careless or dangerous driving a trial must be set and conducted, often before any civil case can proceed.
This can be a very lengthy process, sometimes taking years, with neither the bereaved families nor their instructed civil lawyers allowed access to information that might explain what happened to their loved ones on the grounds of sub-judice.
“Being unable to pursue a claim for compensation until after a criminal prosecution is completed can cause extreme distress and severe financial hardship,” says Brenda.
“In addition, the families of the bereaved are further disadvantaged at the start of the civil case as the driver’s legal team will have had access to all reports prepared for the criminal trial. Often civil cases are commenced more than two years after the fatal collision by which time witness recollection has faded, which places the families of the bereaved seriously disadvantaged.”
Sally Low was killed whilst cycling in September 2013 near Overton, Morayshire. She was a single mother and cared for her two teenage sons. While a civil claim has been intimated to the driver’s insurance company, one year on, the case is still subject to criminal investigations and Sally’s sons are no closer to the financial security they should have.
Sally’s sister, Frances Darling said: “Our family has, in effect, been forced into the litigation process in an attempt to speed up the compensation claim because the Scottish justice system has failed to put our family, in particular my two nephews, at the centre of what they do. I am strongly of the mind that this is an unacceptable position in today's society."
Lynne McNicoll’s stepson Andrew was killed in a collision with a lorry on the Lanark Road, Edinburgh in January 2012. Only after the criminal proceedings were complete over two years’ later has the family been able to begin a civil action for compensation, and only just within the three year time frame from the date of the injury required by law.
Lynne’s experience left her thinking, “how, in a just and civil society, can we still defend a legal system that puts bereaved families through so many months of uncertainty and turmoil? We have to find a way to stop the months of anguished waiting for families in these already traumatic circumstances.”
Donald Urquhart, who chairs the Scottish Roads Justice Committee added: “We must look at a fast track process for such cases and make it possible for families to pursue claims for compensation in tandem with any possible criminal case.
“The introduction of presumed liability, which removes the burden of proof in any civil case from the deceased’s families to the motorist, would also have a significant impact in addressing the shortcomings of the current fault-based system as it relates to fatal injury cases. It would ensure swift compensation and the alleviation of financial hardship for those who need it without impacting on the criminal case. It is by far a more humane way for our laws to act.”
Cycle Law Scotland and CTC Scotland are members of Road Share, the campaign to introduce presumed liability into Scots civil law.