A Highway Code for the future: visionary changes or increased risks

Published 4 agosto 2021

Change is coming

Following its consultation process (click here for DAC Beachcroft’s response to the consultation), the Department for Transport has announced changes to the Highway Code (“the Code”). The proposed alterations were laid before Parliament on the 21^st June and, in total, 33 existing rules will be amended with two new rules being introduced. A number of amendments to the additional information within the Code and its annexes will also be made.

Following the announcement of the changes, the thrust of the media coverage had been to promote the changes as boosting safety for pedestrians and cyclists. It is important to put these changes into context, consider the extent to which, if at all, they will change the law and consider what needs to be done if the changes are to have the intended effect and not, as an unintended consequence, lead to an increase in accidents.

A hierarchy of road users

One of the changes that has been noted is the introduction of what has been described as a hierarchy of road users with the greater level of responsibility being imposed on those who can do the greatest harm should an accident occur.

The reality is that, in effect, the concept of a hierarchy of road users (a term not used in the new Code) is nothing new to RTA claims with the courts’ having long ago adopted the concept of the causative potency of the parties’ respective faults when assessing the extent of the parties liability. By way of example, when considering an accident between a motor vehicle and a bicycle, the greater potential for the former to cause damage to the latter will be taken into account by the court when deciding liability.

We have serious concerns that, in practice, the hierarchy, as it is set out, could eventually lead to presumed liability for drivers. In its response to the consultation, the government stated that it will amend the proposed text to take account of this. We look forward to seeing the revised text.

The Highway Code and accident liability

It is important to remember that the changes to the Code do not undermine the basic tenet that a breach, or the absence of a breach of the Highway Code does not in itself fix liability:

• 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 absolve a person from liability

Cause & effect

Will the changes in the Code give rise to changes in the courts’ approach to issues of liability between motorists on the one hand and cyclists and pedestrians on the other? The answer is almost certainly yes, but in reality these changes are not likely to be major but rather on the periphery.

Of course, there is a need for motorists to be made aware of the changes, but there is a distinct risk that too many pedestrians or cyclists, particularly the inexperienced, will view these changes as operating as a cloak of inviolability giving them carte blanche to behave as if, as is seen in some European countries, they have automatic priority over other forms of transport. They do not and that is not what the new Code provides.

No one would dispute that the Code needs to be kept up to date and that, in the cause of a more environmentally friendly transport system, a shift towards encouraging walking and cycling by provision of appropriate degrees of protection is a good thing. Add in the introduction of e-scooters, with the potential for other travel innovations in the future, then further changes to the Code in the near future will be required. However, getting the message across to all who need to hear it is essential; it is not just motorists who needs to understand what is expected of them.

The government has announced that it will be launching an awareness-raising campaign alongside the publication of the updated highway code, and led by THINK!, it will develop behaviour change communications aimed at both motorists and vulnerable road users to support the aims of the review. We welcome these moves.

The changes to the Highway Code, as well as the growing use of e-scooters and the impending arrival of automated vehicles, demonstrate that road use is changing. DAC Beachcroft is at the forefront of working with government, insurers and other stakeholders to ensure these changes are safe and practical.