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Changes to the Highway Code - What are the potential impacts on personal injury claims?

  • United Kingdom
  • Transport - Rail

16-02-2022

Changes to the Highway code came into force on 29 January 2022, which all road users should be aware of. Here we consider the potential impacts of the changes on personal injury claims.

Whilst failing to follow the Highway Code is not in itself an offence, it is well established that breaches of it are likely to be considered negligent.

The key changes are:

  • Traffic must give way to pedestrians crossing or waiting to cross at a junction;
  • A hierarchy of road users has been introduced, placing the most vulnerable road users such as pedestrians at the top, with those who are considered able to cause the most harm, such as cars, buses, HGVs, at the bottom;
  • Drivers using electric charging points should park close to the charging point and avoid creating a trip hazard with any trailing cables;
  • Cyclists do not need to use cycle lanes; in certain circumstances they can be in the centre of the road on quiet roads, in slower-moving traffic and at the approach to junctions. and can ride two abreast;
  • Vehicles should not cut across cyclists when turning at a junction or changing lane and a gap of at least 1.5 metres is to be given when overtaking a cyclist.

For a full table of changes to the highway code, please click here.

1.1 The Hierarchy of Road Users and Liability

The Hierarchy of Road Users makes it clear that road users who can do the greatest harm, have the greatest responsibility to reduce the danger or threat they may pose to other road users. For example an HGV will carry a much higher responsibility than a cyclist.

This change is likely to set a ‘tone’ in future cases. It is likely that the Highway Code will be used to establish something close to a presumption that a car that hits a pedestrian or a cyclist is liable for that collision unless it can be clearly shown otherwise. At the very least this will, in reality, shift the burden to the defendant car or lorry driver to show why they were not negligent rather than the current position where it is the Claimant’s task to prove that they were.

The hierarchy is also likely to impact on contributory negligence as claimants may well be less likely to agree a reduction for contributory negligence. For example, a cyclist in the middle of a lane now may be able to justify their positioning, or a pedestrian crossing the road can say that they expected and were entitled to priority from the vehicle approaching them.

It is clearly important for those handling claims resulting from collisions involving road users, such as household, motor and equine insurers to consider this hierarchy when making an early view on liability, taking into account where each of the parties sit within the hierarchy.

Any change that impacts on liability tends to result in more litigation as outcomes that were previously certain now are less so until the court can give some guidance as to the weight that will be attached to these changes.

1.2 Consequences of the Changes to the Highway Code

Whether these changes will lead to a new degree of recklessness on the part of pedestrians and cyclist remains to be seen but is perhaps unlikely. Drivers will certainly need to be conscious of the possibility of the vehicle in front suddenly stopping to grant a pedestrian priority even if that pedestrian is on a side road and out of sight.

The new hierarchy also changes the relationships between the drivers of HGV’s and cars. Although there has always been a recognition of the vulnerability of pedestrians and cyclists the interaction between heavy vehicles and cars has always taken place on a level playing field. This has now changed and HGV drivers will need to be aware of the assumptions that will now be made when collisions occur. The frequent lorry comes into contact with car on a roundabout scenario will present the lorry driver with greater challenges than before.

1.3 Conclusion

These changes will impact on how liability is assessed in collisions between larger vehicles and vulnerable road users. Fleet drivers , particularly those fleets using heavy vehicles need to be aware of these changes and ensure that their drivers are adequately trained. Claims handlers need to factor the underlying presumptions inherent in the hierarchy into their liability decisions. The Highway Code and particularly the Hierarchy will form the background landscape against which liability will be judged.

For more information on these changes, road traffic liability disputes or any other aspect of this area of law, please contact Louise Bland, Carl Hurle or Grace Walker.