Proposed changes to the Highway Code – a hierarchy of road users

The Department of Transport (DfT) recently announced the outcome of a consultation on proposed changes to The Highway Code. The revised version of the Highway Code will be laid before the UK Parliament for 40 days before being approved by the DfT. The changes, if accepted, are due to by published in the autumn. Here we set out the three key potential changes to be aware of and discuss what this could mean for road users and their insurers.

Three key potential changes:

1. The introduction of a 'hierarchy of road users', meaning that those road users who can do the greatest damage would bear the greatest share of responsibility in ensuring safety on the road.
2. Clarifying existing rules on pedestrian priority on pavements. Currently pedestrians only have priority over other road users if they have already begun to cross a junction. The proposals would give pedestrians priority over other road users at junctions where pedestrians are waiting to cross, in addition to the existing rule that pedestrians have priority where they are already crossing.
3. Issuing guidance on safe speed and passing distances when overtaking more vulnerable road users such as cyclists and horse riders. The guidance would also confirm that cyclists and horse riders have the right of way at junctions where they are travelling straight ahead.

Implications for safety on the road

The review of the Highway Code was undertaken given recent increases in cyclists and pedestrians on roads. The focus of the review was improving road safety for vulnerable road users, such as pedestrians, cyclists and horse riders. The proposals are designed to improve safety on the road for all road users.

The 'hierarchy of road users' should help to ensure greater safety on the roads for vulnerable users. Road users near the top of the hierarchy will be pedestrians, cyclists and horse riders. Towards the bottom will be cars, vans and heavy goods vehicles. The thinking behind the hierarchy is that road users near the bottom of the hierarchy can do the greatest damage and therefore must reduce the risks they pose to others accordingly. The hierarchy would not give users at the top priority in every situation; the purpose of the hierarchy would be to encourage a culture of safety on the roads. Vulnerable road users would still be responsible for their own safety when on the road.

What could the proposed changes mean for claims?

A failure to comply with the Highway Code is often referred to by claimants to assist in establish liability in road traffic accident claims. Whether the hierarchy of road users would in effect result in a differing standard of care depending on mode of transport remains to be seen. There were over 21,000 responses to the consultation. Amongst those were concerns from haulage and freight companies that liability would immediately attach to large vehicles in the event of a collision with a more vulnerable road user. However, the Government response emphasised that the new rules would not detract from every road user's requirement to behave responsibly.

A hierarchy on the roads will not be an entirely new concept for the courts. In Jackson v Murray the Supreme Court held that when apportioning blame the respective causative potency of the parties (e.g. the greater potential for a car to harm a pedestrian than vice versa) and their respective blameworthiness was relevant. The courts are therefore already familiar with the concept of considering whose conduct is more causatively potent in the circumstances.

The pandemic has caused many to change their habits, including how they get from A to B. The effect of this, coupled with environmental concerns, has resulted in more pedestrians and cyclists on the roads. The proposed changes should hopefully result in fewer accidents, reducing claims. However, where an accident does take place, the impact of the changes when it comes to assessing liability may be highly relevant.