A cyclist who suffered life-threatening injuries when she was hit by a car says she has been denied justice by a legal loophole that protects drivers and their insurers.
Jennifer Wallace broke ten bones in her neck and spine and suffered a collapsed lung, fractured ribs and a serious head injury after being knocked off her bike by an elderly motorist on a Borders road in April last year.
The procurator fiscal ruled out a criminal prosecution as Ms Wallace’s injuries left her with no memory of the collision. It has prompted calls for Scotland to adopt the presumed liability system used in many EU states.
It would mean that after a collision between a motorist and a cyclist or pedestrian, the driver would be presumed liable for injury, damages or loss, unless they can demonstrate otherwise.
The onus is currently on the cyclist or pedestrian to prove negligence by the motorist. A campaign for presumed liability has been backed by the STUC and Gavin Hastings, the former Scotland rugby player who lost two cyclist friends in road accidents.
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Ms Wallace spent her 49th birthday in intensive care after being hit on the B6461 between Kelso and Berwick. Only partial witness statements were taken and an initial police report described Ms Wallace’s injuries as “slight”.
“I don’t want anybody else to have to go through this level of emotional and physical trauma
The driver’s insurers refused to accept liability and only made limited contributions towards her treatment. After 18 months Ageas Insurance, agreed to make a settlement when Ms Wallace began a civil action. She said: “I don’t want anybody else to have to go through this level of emotional and physical trauma.”
She feels the system favours big insurance companies and is against “vulnerable” road users. “I was the one who was seriously hurt and yet I was made to feel worthless by the police and the insurers,” she added.
Ms Wallace, who has now returned to work and is cycling again, believes the law needs to be changed. “Introducing a system of presumed liability could be the catalyst for all road users to think differently when they get into their cars and for everyone to think about the person and the injuries caused, not about attributing blame,” she said.
Brenda Mitchell, a specialist lawyer who yesterday met Douglas Ross, the shadow justice secretary, believes the fault-based system should be scrapped.
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“Because it is up to the cyclist to prove, on the balance of probability, the driver’s negligence, it is often the case that a large insurer will sit back and say ‘prove it’,” she said.
“A system of presumed liability in civil law, which puts the vulnerable victims of road traffic collisions first, would remove the adversarial nature of claims, speed up the process and ultimately lead to less litigation.”