Presumed liability shifts burden of proving negligence from vulnerable to powerful

In my experience, the judicialsy stem is failing to support the victims of road traffic collisions, so the debate about presumed liability is an important one.

I frequently sit with bereaved families whose loved ones have been killed on our roads. I often visit clients, both cyclists and pedestrians, who have lost limbs, sustained painful injuries and bear the deep psychological scars following a traffic collision.

In cases where the police have charged a driver and the fiscal proceeds with a prosecution for careless or dangerous driving, no information is released to the injured or bereaved. It can take years for cases to come to trial and, in all that time, the accused is rightly protected as “innocent until proven guilty.” However, bereaved families and those injured are left in the dark.

The accused is given access to police collision inv es ti- ga ti on reports to prepare a defence. Those reports are withheld from the victims and their families pending the outcome of the criminal trial on the basis that, to do otherwise, could be prejudicial to the outcome. This results in a grave injustice where innocent victims are denied access to justice for months and often years. They wait without funds to pay for rehabilitation, ongoing medical care, lost income and even funeral costs.

Civil Law allows claimants to recover damages if they can prove, on balance of probability, they have been injured through the negligent act of another. Without access to police collision investigation reports pending the outcome of a criminal trial, that’ s an impossible task. In such circumstances, because there is no evidence available to enable the victim to prove negligence on the par t of an accused driver, civil claims for compensation are delayed and access to justice denied.

Presumed liability simply means the burden of proving negligence is shifted from the vulnerable to the powerful. It would be for the accused driver’s insurers to prove a cyclist or pedestrian was negligent and caused the collision.

Surely a driver awaiting trial for careless or dangerous driving is likely to have been negligent?

The driver’s insurers would have to compensate victims without that victim having to prove negligence. Proving negligence still applies, but this is for the insurer. It’s both fair and reasonable. It’s about understanding that behind the wheel of a motor vehicle we are all capable of causing great harm and, as such, should bear that responsibility.

JODI GORDON Associate Solicitor, Cycle Law Scotland, Princes Street, Edinburgh