by David Withers and Peter Lorence, serious injury lawyers
The Highway Code sets out information, advice, guides and mandatory rules for road users in the United Kingdom. Its objective is to promote road safety. The Highway Code applies to all road users including pedestrians, horse riders and cyclists, as well as motorcyclists and drivers.
Many of the rules in the Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison.
Although failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts to establish liability. This includes rules which use advisory wording.
High Code proposed changes
The Department for Transport has recently announced an intention to update the Highway Code, with a view to protecting vulnerable road users. The changes include creating a hierarchy of road users. This is an interesting development and one which is designed to give the most vulnerable road users greater protection.
The approach of the courts
It has been accepted by the courts that drivers of vehicles have to take the utmost care because they are driving a "potentially lethal weapon". The courts already place a heavier burden on drivers as a result.
For example, if a court is considering causative potency in the context of a lorry - v - child pedestrian, it is highly likely, subject to extreme circumstances, that the lorry driver would be found to be more culpable.
Impact on civil litigation
Although these changes are of course welcomed, we do not anticipate that there will be any material changes in the principles governing the assessment of liability in personal injury cases. In reality, if the updates are made, the Highway Code would be more consistent with how the courts have applied culpability, taking into account vulnerability of children, cyclists and pedestrians. However, if children, pedestrians and cyclists have the right of way in some circumstances which they did not enjoy before, more motorists will be liable in the future. The legal principles will not change but the right of way is of course a key consideration when one considers breach of duty.
Impact on criminal prosecutions
We may see more drivers prosecuted on the basis of the new hierarchy of road users. Although the changes would not change the criminal law, they may result in the Crown Prosecution Service making different decisions to what it would have done before the Highway Code update when considering the public interest test.
The publicity of these changes to the Highway Code should at least in the short-term mean that there is greater awareness of the vulnerability of certain road users. We also welcome the desire to reduce congestion on our roads and our environmental impact as a country.
There are, however, concerns that unless there is a well-publicised education and awareness campaign, the changes may result in more people being injured on our roads. For instance, it is understood that the changes include establishing that pedestrians waiting to cross the road have priority over traffic. If pedestrians assume their newly enshrined right of way, they could be placed in danger if drivers fail to accord to these new rules.
Find out more about Irwin Mitchell's expertise in helping people following road accidents at our dedicated serious injury section.
The Highway Code currently treats children walking to school and lorry drivers as if they are equally responsible for their own or other people’s safety. These changes will redress that balance