Brenda Mitchell: Our justice system fails to acknowledge the frailty and vulnerablility of pedestrians and cyclists

I have been a solicitor in practice for almost 30 years, the last five of which have been dedicated to representing motorcyclists, cyclists and pedestrians injured in collisions with motor vehicles. There is, in my opinion, a problem with our justice system, both criminal and civil, where we consistently fail to acknowledge the frailty and vulnerability of road users who choose active travel by bicycle or on foot.

Monday, 12th December 2016, 9:10 am
Updated Wednesday, 14th December 2016, 12:57 pm
Cyclists and pedestrians are more vulnerable than drivers. Picture: Ian Georgeson

The case of Sally Low, a mother of two teenage boys, who was killed while out cycling by a motorist later found guilty of causing death by careless driving, highlights the shortcomings in the legal system.

The driver responsible for Sally’s death lost control of her car on a bend, hitting Sally, who was on her own side of the road. The driver was sentenced in a criminal court to 200 hours of community service and disqualified from driving for two years. Compounding the tragedy, however, was the position adopted by the driver’s insurance company in refusing to compensate Sally’s teenage children at an early stage and instead forcing the family into a civil action in court,adding to their stress at a time when they were consumed by grief. Is it right that we put the bereaved though the stress of litigation when an insurer knows the position and has independent witness statements? Yet, that’s what our civil system demands. The onus rests with the injured party to prove fault.

Contrast that with our European neighbours who recognise the vulnerability of certain categories of road users including cyclists and pedestrians. Their civil laws shift the burden from the powerful to the vulnerable and call on the insurers to compensate victims unless they can establish fault.

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We seem to have a problem in the UK with the concept of road share and certain behaviours toward classes of road user. How do we alter behaviours? With robust criminal sanctions combined with a review and overhaul of our civil road traffic laws to recognise the concept of who brings most harm to an “event”. In criminal law, whilst not advocating that a careless driver who kills a cyclist or pedestrian is punished by a custodial sentence, a lengthy driving ban with an order to re-sit the driving test would be far more appropriate and meaningful. At present, our criminal justice system does not act as the deterrent it should. Careless drivers are occasionally fined for breaking the bones of cyclists and are then left free to carry on driving uninterrupted.

We won’t alter behaviours on our roads until we impose tougher sentencing for those drivers who collide with and injure pedestrians and cyclists in particular. Carelessness is not an excuse when it comes to human frailty.

Brenda Mitchell is the founder of Road Share – Campaign for Presumed Liability.