The document discusses the concept of strict liability in civil law as it applies to different road users. Brenda Mitchell, founder of Cycle Law Scotland, believes introducing strict liability could encourage more cycling and safer roads. Strict liability means those in control of a dangerous activity would be liable for injuries caused, regardless of fault. Most countries apply strict liability to road use based on a hierarchy of vulnerability. The document reviews the history and application of strict liability in Scots law and other areas, and calls for further research on how it could work with a road user hierarchy in Scotland.

1. Brenda
Mitchell
is
the
founder
and
lead
solicitor
at
Cycle
Law
Scotland.
She
is
a
lawyer,
driver,
motorcyclist
and
cyclist
and
has
exposure
over
a
25
year
period
to
road
traffic
collisions
their
causes
and
the
pain
and
suffering
that
arises.
Cycle
Law
Scotland
believe
it
is
part
of
their
responsibility
to
seek
improvement
in
the
civil
law
as
it
applies
to
a
hierarchy
of
road
use
and
to
push
forward
with
a
campaign
to
introduce
the
concept
of
strict
liability,
in
a
form
to
be
agreed,
with
the
ulDmate
aim
of
encouraging
more
individuals
to
take
up
cycling
and
for
the
roads
to
be
safer
for
all
road
users.
1

2. There
is
confusion
over
the
terminology
“strict
liability”.
Road
users
need
to
know
specifically
what
it
means
and
how
it
will
affect
them
as
a
road
user.
HISTORY
LESSON
One
of
the
remarkable
achievements
of
Roman
Jurisprudence
was
the
introducDon
and
development
of
a
noDon
of
fault
or
culpability.
They
also
more
importantly
made
an
enDre
branch
of
their
schemes
and
obligaDons
in
order
to
accommodate
instances
of
no
fault
liability
–
where
a
person
was
held
liable
not
for
his
failure
to
display
the
diligence
of
a
reasonable
man,
but
because
he
was
in
control
of
a
potenDal
source
of
danger
to
other
people’s
lives,
health
and
property.
There
has
been
a
general
acceptance
of
the
concept
of
strict
liability
in
Scots
Law
over
history.
Examples
that
we
are
more
familiar
with
include:
Workplace
Regula.ons-­‐
RegulaDons
that
came
into
force
on
1st
January
1993
introduced
a
raX
of
obligaDons
on
Employers
including
strict
liability
for
certain
breaches.
From
introducDon
in
a
10
year
period
there
was
a
30%
fall
in
work
place
accidents.
Strict
liability
also
exists
in
consumer
protecDon
laws
and
control
of
animals
regulaDons.
2

3. Most
countries
in
the
world
have
a
strict
liability
system
in
civil
law
as
it
applies
to
road
use.
What
underpins
the
system
is
the
noDon
of
vulnerability
and
its
applicaDon
to
road
and
vehicle
use.
Road
Peace
provided
interesDng
confirmaDon
that
China
has
had
a
strict
liability
regime
in
place
for
the
past
10
years
and
the
strict
liability
rules
in
relaDon
to
road
hierarchy
can
be
found
in
Asia,
India,
Bangladesh
and
even
Vietnam.
The
quesDon
to
pose
is,
why
is
the
concept
of
Strict
Liability
acceptable
in
most
European
countries
and
others
around
the
world
and
yet
in
Scotland
we
struggle
with
the
concept
of
hierarchy
of
road
use
whereby
motor
vehicles
have
responsibility
to
cyclists
and
pedestrians
and
cyclists
in
turn
have
a
responsibility
to
pedestrians?
3

4. Caps
(2010)
laid
down
ambiDous
targets
including
a
desire
to
see
10%
of
all
journeys
undertaken
in
Scotland
by
2020
by
bicycle.
ACTION
POINT
12
To
undertake
a
legislaDve
search
to
reveal
the
operaDon
of
liability
laws
and
how
they
work
in
other
countries
ACTION
POINT
13
To
try
and
idenDfy
what
kind
of
hierarchy
might
be
established
It
seems
that
liele
has
been
done
in
the
past
3
years
although
it
is
hoped
that
following
the
CAPS
refresh
we
will
see
the
result
of
any
research
undertaken
in
relaDon
to
acDon
point
12.
I
believe
it
may
well
be
confirmed
that
a
change
in
the
civil
law
is
not
a
reserved
issue.
It
is
worth
noDng
that
although
liele
progress
has
been
made
in
relaDon
to
acDon
point
12
and
13,
the
single
and
most
factor
keeping
Scots
from
cycling
is
the
fear
and
the
fear
is
that
the
roads
are
unsafe.
We
must
consider
whether
that
is
a
valid
well-­‐founded
fear.
4

5. There
is
no
doubt
that
public
opinion
is
divided.
Many
will
ask
what
is
wrong
with
a
fault
based
system.
Many
would
shout
that
it
is
not
fair
that
we
all
share
the
road
therefore
we
should
all
be
subjected
to
the
same
rules.
There
are
views
that
cyclists
are
lawless
free
riders
in
the
high
constrained
and
highly
taxed
world
of
the
motorists.
Many
motorists
believe
that
cyclists
don’t
pay
road
tax
but
in
truth
road
tax
was
abolished
in
1937.
Many
argue
that
cyclist
don’t
pay
insurance.
Many
cyclists
however
do
have
insurance
through
membership
bodies
such
as
CTC
and
BriDsh
Cycling.
Others
are
covered
under
their
household
contents
insurance
policy
for
public
liability.
It
should
be
noted
that
the
insurance
premiums
paid
by
cyclists
is
generally
between
£20-­‐40
per
annum
because
they
are
deemed
to
be
low
risk.
If
all
cyclists
were
to
be
insured
on
a
compulsory
basis
it
makes
you
wonder
where
all
the
premium
income
would
go
and
whether
insurance
companies
would
lower
premiums
for
motorists
who
take
to
cycling.
The
UK
Department
of
Transport
paper
published
in
2010
(the
same
year
as
CAPS)
painted
a
rather
bleak
picture.
Evidence
suggests
there
is
a
failure
in
culture
of
road
sharing
and
the
lack
of
consensus
of
whether
and
how
cyclists
should
be
on
the
road.
Motoring
journalists
and
the
motoring
industry
have
argued
that
it
is
a
level
playing
field,
that
we
are
all
equal,
that
we
are
all
road
users
and
we
should
all
be
bound
by
the
same
liability
laws.
Are
we
seriously
going
to
accept
that
it
is
a
level
playing
field?
5

6. Strict
Liability
is
an
emoDve
issue.
However,
we
must
conDnue
to
push
ahead
with
the
noDon
of
the
introducDon
of
strict
liability
into
the
civil
law
in
Scotland.
One
MSP
recently
noted
that
the
laws
around
strict
liability
should
be
looked
at
as
we
work
to
make
Scotland
a
cycle
friendly
naDon.
If
it
can
be
shown
to
help
improve
road
safety,
Scotland
should
not
be
afraid
to
take
the
lead.
Another
observer
and
broadcaster,
Lesley
Riddoch,
confirmed
that
Europe
had
massively
increased
cycle
use
by
building
cycle
paths
and
separaDng
road
users.
There
is
a
culture
of
treaDng
cyclists
with
kid
gloves.
Liability
laws
have
contributed
to
that
culture
and
have
altered
driver
behaviour
so
profoundly.
Just
like
seatbelts,
we
will
look
back
and
wonder
why
we
accepted
the
current
situaDon
in
the
years
to
come.
6

7. What
can
we
achieve?
In
many
ways
what
has
been
achieved
already
is
posiDve.
We
have
removed
the
issue
of
strict
liability
from
the
back
burner
and
brought
it
to
the
fore.
LegislaDon
is
the
way
forward
and
we
believe
is
it
competent
for
a
members
bill
to
be
introduced.
We
need
to
decide
on
the
frame
work.
How
strict
is
strict
for
example.
France
adopts
a
very
strict
policy
of
strict
liability.
The
Netherlands
have
a
form
of
50/50
and
in
the
UK
we
seem
to
be
soXening
up
to
the
idea
of
presumed
liability.
UlDmately
it
is
low
cost
and
easily
achievable.
7