Bereaved families call on Scottish Parliament to bring in presumed liability

Relatives of two cyclists killed on Scotland’s roads have added their voices to a campaign calling on the Scottish Government to bring in a system of presumed liability under the country’s civil law for road traffic incidents including those in which a bike rider is the victim.

The system, which operates in all but five member states of the European Union, provides for a presumption of liability on for example a motorist involved in a collision with a more vulnerable road user such as a cyclist, unless the latter can be shown to have been at fault.

In the absence of such a system under Scots law, the families of Andrew McNicoll, who died in Edinburgh in January 2012 following a collision with a lorry, and Sally Low, who lost her life after a collision with a car in Moray last year, have to show the driver was at fault in the civil cases they have brought.

The driver of the lorry involved in Mr McNicoll’s death was acquitted in March at Edinburgh Sheriff Court of causing his death through careless driving and his family have subsequently brought a civil claim, reports Herald Scotland.

His stepmother, Lynne McNicoll, who together with his father Ian set up the cycle safety charity Andrew Cyclist after his death, said: "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 traumatic circumstances."

Mrs Low’s sister, Frances Darling, maintained that the justice system is failing victims’ families.

She said: “Our family has 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," she added.

CTC, Pedal on Parliament and Road Share are among organisations that are campaigning for the law to be changed, and a bill is due to go before the Scottish Parliament later this year.

Last month, track cyclist Craig MacLean, one of only two athletes in history to have won medals at both the Olympic and Paralympic Games, said he supported the introduction of presumed liability.

He said: “There are more and more cyclists on the roads, and we are vulnerable out there. I don’t think that motorists, generally speaking, see the person on the bike — they see an obstruction.

“We are up against it and a change in the law to encourage motorists to respect cyclists is a move in the right direction.”

Although Scotland has a separate legal system those of England & Wales or Northern Ireland, none of those jurisdictions has presumed liability in its civil law, in common with Romania, the Republic of Ireland, Malta and Cyprus.

Solicitor Brenda Mitchell, founder of Cycle Law Scotland, spoke of the financial and emotional strain that the current system put victims’ families under.

"Being unable to pursue a claim for compensation until after a criminal prosecution is completed can cause extreme distress and severe financial hardship," she said.