Louise Gallagher

Drive through the centre of any major Scottish city or town and it’s impossible not to notice the 20mph zones that have sprung up around the country.

Designed in part to protect pedestrians, cyclists, horse riders and other vulnerable road users, the restrictions could soon be appearing beside even longer stretches of road. A Member’s Bill introduced to the Scottish Parliament last month by Mark Ruskell MSP aims to reduce the general speed limit across Scotland from 30mph to 20mph. It is the Restricted Roads (20mph Speed Limit) (Scotland) Bill.

In the papers accompanying his bill, Ruskell insists he wants to give local councils the power to raise the speed limit back to 30mph where appropriate. Yet imposing an initial nationwide blanket control measure would mark a major turning point in motoring legislation.

While the safety benefits in reducing speed limits in highly pedestrianised areas are well documented, extending the 20mph limit to roads in general could lead to an increase in the number of speeding offences being reported unless driver behaviour changes. The interaction between speed and civil liability has always been more subtle. This is because speed does not automatically signal negligence in civil cases.

An example from England helps to illustrate the subtleties involved here: in Malasi v Attmed, (2011) High Court, a cyclist hit the front nearside of a taxi after riding through a red light at a T-junction. The cyclist brought a claim against the taxi driver because, although the taxi driver had a green light in his favour, the taxi had been travelling at between 40mph and 50mph in a 30mph zone.

The High Court found that the accident could have been avoided if the cyclist hadn’t ridden through the red light or if the cyclist had noticed the taxi and slowed down, even slightly. However, if the taxi driver had not been travelling so quickly, the collision could also have been avoided. The taxi driver was found liable to pay compensation to the cyclist but the compensation was reduced by 80% because of the cyclist’s own negligence.

The Scottish approach to cases involving “vulnerable road users” is neatly set out in the case of Moffat v Zenith Insurance, which was heard by Sheriff McGowan earlier this year.

The pursuer was a cyclist who was riding behind a car that signalled before turning left; the cyclist tried to undertake the car and hit it. The Sheriff found that the accident was not the fault of the car driver at all and so no liability was established.

In addressing the question “Do the circumstances give rise to an inference of breach of duty?”, the Sheriff noted: “It is clear the proposition – “that there was a collision between a bicycle and a car, therefore there is a presumption that the driver of the car was to blame” is not the law. But in my view, neither is it the law that “the driver of a car did not see a cyclist before a collision occurred, therefore there is a presumption that the driver did not look properly.”.

Efforts have been made to assist vulnerable road users in making compensation claims by seeking to introduce “strict” or “presumed” liability into Scots civil law.

Strict liability would mean that the taxi driver in Malasi and the car driver in Moffat would automatically be liable to compensate the claimants because, under strict liability, the question of fault is irrelevant. The impact of such changes, if introduced, would unfairly penalise drivers and in turn their insurers, who would need to compensate irrespective of fault. Such changes would inevitably lead to an increase in motor premiums affecting all vehicle drivers.

Under presumed liability, drivers would be presumed, as a matter of law, to be at fault and would be held at fault unless they could prove otherwise. It is difficult to see the legal logic of either strict or presumed liability. Individual cases in this area are often fact-sensitive. The general rule that a person seeking compensation needs to prove his or her case makes sense.

This is an area which is likely to develop even further with the further advances we are seeing in autonomous and driverless vehicles and how they interact with vulnerable road users. At this stage, we could perhaps all agree that by reducing our speed more accidents are likely to be avoided but when they do unfortunately occur, the extent of any injuries should be reduced and that must be good for everyone.

Louise Gallagher is a partner at BLM