How Does The Highway Code Change Affect Me?

What are the main changes to the highway code?

• The introduction of a hierarchy of road users to ensure that drivers and vehicles “who can do the greatest harm” will have the “greatest responsibility to reduce the danger or threat they may pose to others”.

• Clarification of the existing rules on pedestrian priority on pavements, and that “drivers and riders should give way to pedestrians crossing or waiting to cross the road”.

• Establishing guidance on “safe passing distances and speeds when overtaking cyclists or horse riders”, as well as ensuring they have “priority at junctions when travelling straight ahead”.

Whilst these developments would appear positive in promoting safety for pedestrians and cyclists, it is important to remember that the proposed changes will not seek to undermine the basic principles of liability or the Road Traffic Act.

As has been known by motor claims handlers for some time, a breach of the Highway Code does not automatically lead to liability attaching to that party – consider, for example, a drunk driver who is hit whilst stationary at traffic lights. Despite being an illegal activity (ie. being intoxicated behind the wheel of a motor vehicle), the breach of the law and the Highway Code is not the proximate cause of the incident – as such the drunk driver would not be held ‘liable’ for the accident (regardless of whether the police decided to prosecute them). Equally, the fact that the Highway Code has not been breached is not in itself reason to absolve a driver from liability.

Despite the above, there are nonetheless concerns that the new hierarchy for road users could lead to a ‘presumed liability’ for drivers when involved in accidents with cyclists or pedestrians. In effect, this principle has already been in place for some time under the concept of ‘causative potency’ (ie. a big vehicle is going to do more damage than a cyclist), but the new codification of an effective ranking of road users could mean that this new convention becomes the de facto template for the understanding and assessment of liability in traffic accidents. Those of us who have visited certain European countries will be aware how a pecking-order can swiftly become established between different types of road user and, whilst this clearly has positive aspects for both carbon emissions and safety, there remains a concern that the new hierarchy could give rise to car, van and lorry drivers being tarred with responsibility for accidents just by virtue of the vehicle they are driving.

Clearly this issue could be compounded by cyclists and pedestrians concluding that they have automatic priority over other forms of transport, a situation that may be further exacerbated by the increased prevalence of e-scooters and other new technologies on our roads and pavements.

In an effort to counteract any unforeseen problems introduced by the new Code, the government will shortly be launching an awareness-raising campaign consisting of messages aimed at behaviour change for both motorists and vulnerable road users. Clearly we will be monitoring developments closely, especially in terms of any potential changes in insurer attitudes to road traffic accidents.

Needless to say, we hope that the new Highway Code brings its desired positive effects without manifestly undermining the established principles of motor liability.

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