When I was learning to drive, back in the 90’s, I remember going to the Post Office to buy my Highway Code. It was a thin paperback book which was full of the rules of the road. It was a rite of passage and marked my embarkation on a journey into the world of motoring.
The Highway Code set out not only the rules of the road, but it provided information and advice for all road users.
This is still true today, however, you can access the Highway Code online and even link directly to the legislation applicable to the relevant sections. The questions I ask myself are ‘how often since passing a driving test does a lay person review the Highway Code?’ and ‘how many times has a non-driver reviewed their duties as a cyclist, pedestrian or other road user?’ I am sure some will have diligently, but others, maybe not so much.
In October 2019 there was a consultation announced and, as a result of this, we are receiving a new Highway Code with updated rules. The focus is to make our roads safer for all road users but also a major emphasis seems to be upon the safety of our more vulnerable road users. A host of rule changes and clarifications have been proposed and will be implemented which will affect anyone using the road. There is a total of 33 rule changes plus two new rules as well as changes to the additional information and annexes.
A key concept being introduced is a new ‘Hierarchy’ of road users. These are ranked from most vulnerable (1) to least vulnerable (8):-
- Horse riders
- Cars and taxis
- Vans and minibuses
- Large passenger vehicles
The hierarchy appears to be based upon who can do the most harm and in the simplest form, the duty of care is greater the further down the list you go. This means that the driver of a motorcycle would have a greater duty of care than a cyclist and similarly, a cyclist would have a greater duty of care than a pedestrian.
This enshrines and codifies the concept of ‘Causative Potency’, something that the Court has been handing down decisions on for many years. Such a concept is governed by a wealth of case law, but the changes to the Highway Code should enable this concept to be fully addressed from the outset in any cases. Moreover, the establishing of such a hierarchy will enable practitioners to plead this in many circumstances.
This does not mean that those higher on the list can act without regard; they have a duty to themselves and other road users too, however, how the Court will choose to interpret this greater duty remains to be seen.
As many practitioners will be aware, the Highway Code can be, and often is, used in evidence and there are concerns over how the information will be cascaded to road users. With key clarification of rules relating to ‘pedestrian priority’ and guidance being given as to appropriate cycling and safe passing distances and speeds for overtaking cyclists and horse riders, there is a lot more focus upon the safety of the road user (for instance promotion of the ‘Dutch Reach*’ method when opening car doors to protect our cyclists).
But should the worst happen and someone be involved in an accident? Well many of these changes and recommendations are just that, recommendations. They are not presently tied to legislation and it remains to be seen whether any legislative changes will follow off the back of these changes. What is likely, however, is that anyone not following a ‘recommendation’ could be criticised and so we may see a host of new issues challenging the previously accepted position relating to fault in road accidents.
Given the breadth of changes it is imperative that these changes are fully publicised and that there is an awareness programme targeted at all road users, not just drivers, so that everyone can use and enjoy our roads safely.
The changes should be in effect from the Autumn of 2021.
*Dutch Reach is a technique which involves using the hand furthest from the car door to open it – the left hand if you are the driver. By doing this you automatically turn your body, helping you see approaching cyclists.
Darren Wilson, author of “Changes to the Highway Code” is a Team Leader and Senior Associate at Irwin Mitchell and MASS Regional Co-ordinator for Central East