SIMON BAIN

The founder of a campaign to protect vulnerable road users has said there is an “anti-cyclist culture” in motor insurance .

Lawyer Brenda Mitchell, initiator of the Roadshare campaign which submitted an 8200-name petition to Holyrood earlier this year, has said insurers run up “completely unnecessary legal costs” defending cases, which is hiking the cost of premiums.

She was commenting on the case of Mark Lonnen, an experienced mountain biker and road cyclist, who was forced to sue an insurer to recover damages after being involved in a collision that was not his fault.

Lonnen was riding his Santa Cruz Blur XC carbon frame mountain bike in Dunblane 15 months ago when the door of a car parked on double yellow lines opened in his path , forcing a collision which threw him over the handlebars.

The accident was seen by two independent witnesses, who both came to Lonnen’s aid and provided their details.

The cyclist fractured his left wrist in the accident, but managed to take some photos on his smartphone. He reported the incident to the police and provided details of the witnesses and the driver. Soon afterwards he made a claim against the driver's insurers.

But then a 'David and Goliath' struggle began, according to Ms Mitchell of Cycle Law Scotland

She said when no response to Lonnen’s claim had been received after six months, court proceedings were drafted last December. The driver's lawyers submitted a defence in January, claiming "the driver’s door was shut, suddenly and without warning the pursuer’s bicycle struck the driver side of the insured’s car".

They went on to try and prove that Lonnen had been cycling too fast and had left a long scratch on the car, and submitted an engineer’s report with photographs – which had been taken nine months after the incident.

Lonnen's photo taken at the time, however, clearly showed no scratch on the car. His solicitors were also able to provide detailed statements from the two witnesses.

Eventually, the insurance company made an offer, exactly 12 months after the incident. But it was rejected, and another month of negotiations was needed to reach a settlement at an acceptable level.

Mitchell says: "Mark was a credible and reliable witness, he had done no wrong. He suffered injury at the hands of a negligent driver and yet he was forced to battle against a large insurance company. The motor insurers had access to a police report and independent witness statements yet they denied liability forcing Mark to raise a court action."

The lawyer says the saga highlights a “culture weighted against cyclists”, because the insurers ended up paying all the costs of an unnecessarily expensive action.

Roadshare is campaigning for a change in the law to create ‘presumed liability’ against the more powerful road user – including against a cyclist involved in a collision with a pedestrian.

Mitchell says: "Currently, our civil law requires the vulnerable road user - injured and the bereaved - to prove the case against the more powerful, which in most cases is the motorist’s insurance company. Under presumed liability, it is for the more powerful to prove that the vulnerable road user was liable for the collision."

The presumption of liability would still allow a driver or cyclist to allege fault or part-fault on the part of the injured cyclist or pedestrian.

Last year 56 pedestrians, 31 motor-cyclists and eight cyclists died on Scotland's roads and overall fatalities were up 16 per cent.

The Roadshare campaign has attracted support from cycling groups, driving schools and celebrities, and its petition was presented to the Scottish Government by round the world cyclist Mark Beaumont.

In the accompanying report, the campaign group said that in the past 10 years the risk of walking a mile compared with driving a mile has grown 37 per cent, making it 19 times more dangerous to walk than take the car.

The report said the number of cyclists killed or seriously injured in Scotland has risen steadily since 2004.

Mitchell says: "Our research has revealed that all countries with high levels of safe active travel have some form of presumed liability.

What is clear is that the Scottish Government needs to take urgent action to better protect vulnerable road users before we can fix the tragic situation on our roads.”

However presumed liability was rejected by the SNP conference last year, and Scottish justice convener Christine Grahame has said Scots law should not be changed when it was unclear how it could work.

A spokesman for the Association of British Insurers said: “Insurers continue to settle road traffic accident claims as swiftly as possible – including incidents involving cyclists. However, the industry believes that the focus should be on improvements to road safety to reduce the risk of collisions. Insurers support the introduction of practical solutions such as the wider use of autonomous emergency braking, and a longer learning period before drivers are licensed.”