A husband and wife took up cycling in a bid to keep fit. On a Sunday in October 2013, they decided to go for a ride and have brunch before returning home.

It was a good day with clear visibility and both were wearing helmets purchased months earlier along with their new bikes. Whilst returning home cycling downhill on Main Road, Maddiston, Falkirk, Mr S overtook his wife safely but immediately afterwards they both became aware of an irate driver behind blasting her horn.

The car driver proceeded to overtake before pulling in front of them and braking suddenly.

Neither cyclist could stop in time causing Mr S to go through the rear windscreen of the car. His wife collided with her husband’s bike before crashing to the ground fracturing her right arm.

The police and Paramedics attended the scene and the driver was charged with dangerous driving. An independent witness confirmed to the Police that the driver had stopped suddenly and there was nowhere for the cyclists to go.

At an early stage, both husband and wife intimated claims for damages directly to the driver’s insurance company claiming their policyholder had been negligent and, as a consequence of her negligent act, injury had been sustained and compensation should be awarded.

Astonishingly, the insurance company denied liability stating in correspondence “whilst we have every sympathy, we cannot see any way in which the cyclists riding into our policyholder’s stationary vehicle is the result of negligence on the part of our policyholder."

They even denied their policyholder had been charged by the Police, yet in April 2014, their policyholder was found guilty of careless driving, fined £250 and had 9 penalty points endorsed upon her licence.

Within 4 weeks of the conclusion of the criminal trial, Mr S’s case was settled.

He was fortunate enough to have sustained relatively minor injuries. His wife, however, sustained more serious injuries and the insurance company would only offer them £7,000. The offer was refused and the case raised in the Court of Session.

In December 2014, some 14 months following the incident, the case was settled for £11,500.

Mrs S had this to say about her experience with Cycle Law Scotland,

“Thank you so much for all your help and support throughout this process. Your clear explanations and setting expectations at each stage, including the court case, were invaluable."

There is no doubt this case highlights what is wrong with the Civil law process in this country. We have a fault-based system in civil law which requires an injured victim to prove negligence. Many European Countries have a system of presumed liability where the more powerful are presumed liable to compensate those who are vulnerable in road traffic collisions.

These two cases should have been settled quickly and fairly and yet an insurance company denied liability resulting in litigation and unnecessary delay. At the outset, an independent witness was clear in his recollection. The driver had been negligent. This husband and wife team had taken to cycling to improve their health and fitness and yet both ended up injured. If we had a system of Presumed liability, the driver’s insurance company would have had to prove at the outset both cyclists had been negligent. Knowing that could not be established on the evidence, the cases would have been settled fairly and quickly, thus avoiding expensive litigation.