The Highway Code in Review

At Anthony Gold we represent individuals who have suffered life-changing injuries in road traffic accidents and assist them to claim the compensation they deserve.

More often than not, most of the serious injury claims we assist with are brought by victims of pedestrian, cycling, and motorcycle accidents, where the accident was the fault of the driver of a car or larger motor vehicle. In that context the changes made to the Highway Code in 2022 have been welcomed by many. This blog reviews the changes made one year on.

What were the 2022 changes?

In January 2022, following a public consultation to improve road safety, the Department for Transport made the biggest revision in decades of the Highway Code. The aim was to afford more protection to the most vulnerable road users. In total, nine sections of the Code were updated, with 50 rules being added or revised. Here is a brief recap of some of the main changes introduced:

• Introduction of a new hierarchy of road users. This now puts those most at risk (pedestrians and cyclists) at the top and those least at risk (cars, vans and large vehicles) towards the bottom. Regrettably, the new Code has neglected any mention of e-scooters despite the steadily increasing number of scooter-related accidents. There is no provision for e-scooters under the hierarchy of road users and it is unclear whether they should be considered more or less vulnerable than cyclists. Legislation to legalise e-scooters is expected in the next year or so, which will hopefully prompt another update to the Code.
• Priority for pedestrians at junctions.
• Cyclist priority and positioning. Further rules look to give better, clearer protection to cyclists on the road. This provides that: vehicles may not cut across a cyclist’s right of way, including when turning at a junction; cyclists are permitted to ride in the centre of a lane in order to make themselves visible on the road and drivers must leave 1.5 metres of space when overtaking a cyclist at up to 30mph.
• Exiting a vehicle. It is now advised that drivers use the hand furthest from the door when exiting the vehicle, the idea being that this will force them to turn their head and look backwards, allowing more chance of spotting oncoming cyclists.
• Mobile phones. Rules have been strengthened to make it illegal to use hand-held mobile phones while driving under virtually any circumstances, including whilst waiting at traffic lights or in traffic jams.

Further details about the new rules affecting cyclists and pedestrians can be found here.

Limitations of the code

The changes brought are to be welcomed as they provide for greater protection for vulnerable road users – but have they had any practical impact?

Alarmingly, a recent YouGov poll conducted on behalf of Cycling UK revealed that 25% of British adults were unaware of the update to the Code, whilst just 28% of those who said they were aware could correctly answer a question about safe passing distances when overtaking cyclists. Casualty data for 2022 won’t be available until later in the year, but looking at the provisional estimates they seem to confirm that there has not been a marked reduction in accidents and injuries, with only an estimated 4% decrease in reported fatalities in road collisions and 6% decrease in seriously injured casualties. Interestingly, The British Horse Society (BHS) has indicated that there has been a 21% increase in the number of reported equine-related road incidents in 2022 compared to 2021.

Unsurprisingly, the number of motor claims registered with the Compensation Recovery Unit also was not much reduced in 2022 compared to 2021.

Another fundamental limitation of the Code is that it is not a legal document. It is a Code of good practice and as such is not enforceable, although many of the instructions contained within the Code are backed up by law, such as the offence of careless driving.

What do the changes mean for litigation?

Whilst breaching the Code is not in itself an offence, failure to comply with the Code can be used to establish liability in a civil claim. Courts will therefore be taking into account the new rules when dealing with road traffic accident (RTA) claims. This should, in theory, make it easier to for drivers to be prosecuted over accidents involving pedestrians and cyclists.

Despite this however, nothing in the legislation and regulations that underpin the Code has actually changed – the updated Code does not undermine the basic tenet that a breach of the Code does not itself fix liability.

Furthermore, 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 (i.e. the potential to cause damage) of the parties’ respective fault when assessing the extent of their liability. The new rules are likely to simply formalise that approach.

Whilst the updated Highway Code, combined with the approach that is already taken by the courts, place more accountability on drivers of vehicles, more could still be done to give the Code greater weight in a litigation context. More pressingly, it is clear that greater awareness of the most recent changes is needed before we can expect road users’ behaviour to change.