Inspirational or aspirational? The Highway Code changes have arrived

Published 31 January 2022

On Saturday 29 January, the long awaited changes to the Highway Code took effect. At least 33 of the existing rules were amended and two new rules were introduced. A number of amendments were also made to the additional information within the Code and its annexes.

Changes to the Code

The overarching principle is to make our roads safer for all users. To this end, all road users are expected to treat other road users with consideration:

• The introduction of a hierarchy of road users will place the greater level of responsibility to take care to avoid causing harm to others on those who can do the greatest harm should an accident occur. It will not reverse the burden of proof, nor will it create a presumption of liability as against the road user further down the hierarchy

• Other road users (including cyclists) should give way to pedestrians crossing or waiting to cross at junctions
• The Code adds new guidance for routes and spaces used by pedestrians, cyclists and horse riders – cyclists should give way to pedestrians, and pedestrians should take care not to obstruct or endanger cyclists and horses
• When cycling on the road, cyclists are encouraged to position themselves farther away from the kerb and, in certain circumstances, actively placing themselves in the centre of the lane, for example when crossing a junction or other scenarios where it is not safe for vehicles to overtake. Additionally, cyclists travelling in groups can ride two abreast when it is safe to do so
• Cyclists have priority over traffic waiting to turn into or out of a side road (unless road signs or markings indicate otherwise) when going straight ahead at junctions, and motorists should give way to cyclists on roundabouts
• Motor vehicles should leave at least 1.5 metres when overtaking cyclists at speeds of up to 30mph, and more when overtaking at higher speeds. Likewise, they should leave at least 2 metres when passing pedestrians
• People exiting vehicles are now encouraged to use the ‘Dutch Reach’ (opening the door with their opposite hand, forcing them to look behind them) to prevent potential injuries to cyclists and pedestrians

The Highway Code and accident liability

Nothing in the legislation and regulations that sit behind the Highway Code has changed. The updated Code does not therefore undermine the basic tenet that a breach (or the absence of a breach) of the Highway Code does not in itself fix liability, i.e.:

• A breach of the Code does not in itself render the person in breach liable;
• An absence of a breach of the Code does not necessarily absolve a person from liability.

The Code still emphasises the need for every road user to take responsibility for their own safety and the hierarchy needs to be read in that context.

Commentary

Many of the changes to the Code are little more than codification of safe and considerate driving techniques and the new hierarchy is a good example of this.

Whilst it may come as a surprise to some cyclists that they should give due consideration to the risk of harm their riding poses to pedestrians, the concept of a hierarchy of road users is not new in RTA claims. The courts have for some time adopted the concept of the causative potency (or in other words, the potential to cause damage) of the parties’ respective fault when assessing the extent of their liability. The difference with the alterations to the Highway Code is that the hierarchy further codifies a principle that can be overlooked when apportioning liability. It remains to be seen what impact the change will have on the how road traffic claims are presented and decided, but evidence will still be of the utmost importance. Expect an increase in the use of dashcam and helmet mounted cameras.

Next steps

No one would dispute that the Code needs to be kept up to date, or that a shift towards encouraging more environmentally friendly modes of transport such as walking and cycling requires appropriate degrees of protection.  However, getting the message across now to all who need to hear it is essential; it is not just motorists who need to understand what is expected of them.

Last year, the government announced that it would be launching an awareness-raising campaign alongside the publication of the updated Highway Code. The media reaction so far indicates that the government has not succeeded in disseminating its message clearly to all road users. Several sources state that the majority of road users are unaware of the changes to the Code, whilst other sources are publishing articles containing factual errors that could misinform readers. The government’s road safety programme, Think!, will soon launch a campaign detailing the changes and informing road users of their responsibilities – but this should have happened well before implementation.

The launch of the updated Code acknowledges that road use is itself changing. The growing popularity of micro-mobility devices such as e-scooters and the impending arrival of automated vehicles are likely to require further legislation on road use. The pace of change is accelerating: another revision of the Highway Code in the near future seems inevitable.

DAC Beachcroft is at the forefront of developments within the motor insurance arena, including all aspects of future mobility. We will watch these developments closely and keep you up to date.