Previously all road users were viewed to be on an equal footing and responsible not just for the safety of other road users but also their own. There is now a hierarchy of road users placing those road users most at risk of injury at the top (see rules H1-H3 of the Highway code) and highlighting the concept that those who can do the greatest harm have the greatest responsibility to reduce danger to others; a concept that was recognised by the Court of Appeal in the case of Eagle v Chambers [2003] EWCA Civ 1107 where Hale LJ said the courts have ‘consistently imposed upon the drivers of cars a high burden to reflect the fact that the car is potentially a dangerous weapon’.
This idea of a vehicle being “potentially a dangerous weapon” can be said to be behind the new code. For example, drivers no longer have priority at junctions and should give way to pedestrians, meaning motorists must wait before turning into a side road, if there is a pedestrian waiting to cross. Also, when travelling at speeds of up to 30mph, drivers should leave at least 1.5m when overtaking cyclists and give more space when overtaking at higher speed. Another example of the new hierarchy is that cyclists should not ride past pedestrians at high speed on shared paths and towpaths, particularly when approaching them from behind.
But will changes to the highway code really provide better protection for cyclists and pedestrians? A recent AA survey suggests that more than three-fifths of UK motorists have not read recent updates. The motoring group's survey of 13,327 members suggested that 8,090 (61%) drivers had not read the changes made in January 2022 and that 1,118 drivers were completely unaware of the changes.
Recent statistics produced by the Department for Transport demonstrate the potential vulnerability of differing road users.
When generally society is seeking to increase the number of people who use more environmentally friendly and cheaper modes of transport, particularly in urban areas, are changes to the Highway Code, however beneficial, the only way to increase the protection afforded to vulnerable road users? In the past, changes have been made to increase the safety of those in the vehicles: now we need to look at increasing the safety of those outside vehicles.
Could changes be made to the way we deal with civil liability in respect of road accident claims that involve personal injuries to positively change the behaviour of those using the “potentially a dangerous weapon” referred to in the case of Eagle v Chambers? Perhaps those who have a vested financial interest in seeking to reduce the number of road deaths and serious injuries suffered by vulnerable road users, namely motor insurance companies, would seek to get the message over to their customers if the burden of blame shifted?
Could we learn lessons from the French who, under Article 3 of the Badinter Law, extend a very protective scheme to cover, what we would call, vulnerable road users such as pedestrians and cyclists, granting them compensation almost automatically in the event of a personal injury? This would be strict liability by any other name. It may work and certainly it would, in our view, concentrate the mind of insurers on getting the message across that motor vehicles can cause serious injuries to vulnerable road users. A message that, in Road Safety Week, we fully support.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
