The latest edition of the Highway Code came into effect on 29.01.22 and is radically different to the last. In a nutshell, it imposes higher, stricter and more specific standards on motorised traffic to better protect cyclists and pedestrians. All road users are reasonably expected to know and act in accordance with the Code. Legal practitioners will know that it is often the starting point for allegations of negligence in road traffic collisions pursuant to s38(7) of the RTA 1988. Given the number and nature of the changes made in this edition, it is worth closely analysing what it now says.
There is a huge amount to unpack in the new Code, far more than is covered here. This blog is intended as a whistle-stop tour of some of the new aspects that are likely to feature in liability disputes going forward.
The “Dutch reach”: how to open a car door
Rule 239 deals with parking and opening doors safely and has been significantly extended. Whereas it used to simply require “checking for cyclists and other traffic” before opening a door, it now specifically requires “looking all around and checking your mirrors”.
But it also goes much further by saying “where you are able to do so, you should open the door using your hand on the opposite side to the door you are opening” i.e. your innermost hand. This is known as the “Dutch reach” and has been standard practice in the Netherlands for decades. The logic is that this manoeuvre will force the individual to look over their shoulder and insodoing to check for oncoming traffic, cyclists and/or pedestrians. The rule applies equally to drivers and passengers.
Other than people with physical disabilities it is hard to imagine how or in what situation anyone could be deemed unable to open a door in that way and so for the majority of drivers and passengers, this should be seen as a standard requirement. Given how many accidents happen when a parked car door is opened and how often they go to court, this rule is likely to be heavily relied upon by the impacted party in pleadings and cross examination.
It is also worth noting that by rule 67 cyclists are specifically required to leave “a door’s width or 1 metre” when passing parked vehicles which is much more meaningful than the previous requirement to “leave plenty of room”. This will no doubt be deployed by the door-opening party but can only be of assistance where the other is a cyclist.
Pavements are for pedestrians
One line towards the end of the new rule H2 quietly removes any question marks over whether e-scooters, hoverboards or similar can be used on pavements. These are increasingly common and there has been criticism over the lack of regulation of their use. H2 is a step forward as it says in terms that, with the exception of wheelchairs and mobility scooters, “only pedestrians may use the pavement”. This is as clear as the rules can get and to this author’s mind should give pedestrians injured on the pavement by those using e-scooters or similar the upper hand in litigation. It does though leave gaps in how to treat these vehicles on the road: for example there are no rules that deal with overtaking them or where they should be positioned in the road. Until such rules are added, common sense will have to prevail which is problematic to apply and enforce.
Junctions: give way to pedestrians including if they are waiting
The completely new rule H2 applies to all road users except for pedestrians. They “must” give way to pedestrians on marked crossings (e.g. zebra crossings and when they are on a green light) and “should” give way to pedestrians who are crossing, or waiting to cross, a zebra crossing or a junction. The novelty in this rule is the requirement to give way to pedestrians who are waiting to cross at a junction: it requires the driver to assess in the moment whether they think a pedestrian is loitering or waiting to cross.
In reality, a driver about turn into a junction will not always have a clear view of pedestrians around the bend until they start making their turn: there may be parked cars for example or other pedestrians in the way. Rule 8 separately requires a pedestrian to look out for traffic turning into a road before crossing and to “cross at a place where drivers can see you”. In practice though, it seems to this author that it is not always going to be possible for a pedestrian to cross in a place that allows them to be seen by traffic that is turning in. It is easy to imagine a situation where a car halts having noticed a pedestrian waiting to cross and is rear-ended in so doing. This means that the importance of safe stopping distances at junctions in slow moving traffic cannot be overstated.
Where a cyclist can and should be
The new rule 72 sets out where a cyclist ought to position themselves in the road depending on the traffic conditions. On busy roads with vehicles travelling faster than them they should be at least 0.5m away from the kerb or more if possible. On quiet roads with slow traffic, they should be in the middle of their lane. On the approach to narrowing sections of road and junctions, they should again be in the middle of their lane. At junctions without specialist cyclist lanes and signals, cyclists ought to position themselves in the middle of their lane but if they don’t feel safe doing so the Code says that they “may prefer” to walk their bike across the junction.
Rules 72 and 73 are completely new to this edition of the Code and aim to increase cyclists’ visibility to other traffic to prevent collisions. However, rule 72 can only work effectively as a safety mechanism if all traffic abides by the overtaking rules discussed below.
Rule 163 specifies that cyclists “may” pass slow or stationary traffic “on their right or left” with care and should be particularly careful when doing so near junctions or by large vehicles.
The rules require a cyclist to allow traffic to overtake where it is safe for them to do so, both when cycling alone (rule 72) and in a group (rule 66). Rule 72 specifies that on busy roads the cyclist should move to the left but remain at least 0.5m away from the kerb edge. On quiet and slow-moving roads they should move to the left but there is no requirement to maintain a 0.5m kerb distance in these traffic conditions. It is difficult then to see how a cyclist could communicate “allowing” an overtake on a busy road in practice without putting themselves at risk by removing a hand from their handlebar.
Overtaking vulnerable road users: strict rules apply
Rule 163 brings in minimum distances that must be maintained if a driver wants to overtake certain vulnerable road users. They are (1) at least 1.5m when overtaking a cyclist travelling at less than 30mph (2) at least 2m when overtaking horses travelling at less than 10mph and (3) at least 2m when overtaking a walker on the road. For context, the average lane of traffic is 3.6m wide. The rules are clear: if the minimum distance can’t be kept, the driver should not overtake. Similarly, if it is otherwise “unsafe”, they should not overtake, though “unsafe” is new to this context and not explained.
Witnesses of fact are unlikely to be able to say how many metres they left between themselves and vulnerable road users, but they should be able to confirm whether they knew what was required of them and how far across the lane they moved in relative terms. In disputes that turn on the distance kept when overtaking, liability should become more clear-cut. However, in disputes that turn on whether it was “safe” to overtake more generally, this author anticipates that there will be a wide range of judicial opinions on what this means until the higher courts consider it.
A vehicle-based hierarchy of responsibility
Rule H1 sets out what appears to be a new hierarchy of responsibility for others’ safety based on the mode of transport’s potential to cause harm. It says that whilst everyone is responsible for other road users’ safety, “those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others”. Crucially then, the hierarchy does not depend on what harm is caused in the event: it depends on the vehicle’s hypothetical capacity to cause harm.
This is not as radical a rule as it seems at first blush as indicated by H1’s self-description as a rule to “clarify” rather than change. The previous edition’s introduction set out the “most vulnerable” categories of road users and H1 is a more robust framing of that. In this author’s opinion, this is one of the less radical changes in practice but will no doubt be deployed in litigation where colliding road users used different modes of transport to create presumptions of responsibility.
The new Highway Code can be found here.
Chambers’ Anna Symington gave a Teams Toolbox Talk on some of the changes to the Code on 09.02.22. To access the recording or slides please email the events team events@12kbw.co.uk
Megan Griffiths, barrister
