Joshua Hughes from national law firm Bolt Burdon Kemp

Amongst other measures to be implemented, the forthcoming Highway Code changes will create a new risk-based hierarchy for road users, giving priority to those who are most vulnerable. The concept is based on providing additional protection to those most exposed in the event of a collision. Accordingly, road users most likely to cause the most harm will assume greater responsibility for reducing the danger they pose.

These changes are to be welcomed but their success will in large part depend on how well the public are educated about them. The risk of introducing such fundamental changes without doing enough to communicate them is that it could lead to confusion on our roads -with some road users following the new regime whilst others assuming the old rules still apply.

The changes

The headline amendment to the Highway Code is the inclusion of Rule H1 which clarifies the new hierarchy of road users below:-

1. Pedestrians
2. Cyclists
3. Horse riders
4. Motorcyclists
5. Cars/taxis
6. Vans/minibuses
7. Large passenger vehicles/heavy goods vehicles

This list places pedestrians at the top because they pose the least risk to other road users, whereas those towards the bottom pose the most. I don’t consider the hierarchy is likely to be deemed overly controversial. Even absent these changes, one would expect the law to recognise the additional responsibility placed upon HGV drivers than, for example, a cyclist, for road safety. Whilst I’ve seen the contrary argument raised already, this does not detract from the expectation that every road user must assume responsibility for maintaining their own safety.

Perhaps more controversial are Rules H2 and H3 which, respectively, include provision that “At a junction, you should give way to pedestrians crossing or waiting to cross a road into which or from which you are turning” and that cyclists will take priority over cars when making a turn. Notably, in terms of the latter rule change, this means that vehicles indicating to turn left or right will have to give way to cyclists approaching from behind and going straight ahead.

It is in respect of these rules that without substantially better efforts to communicate the amendments and ensure wider road user understanding, avoidable collisions might occur. Naturally, no road user should make decisions solely based on assumptions of what another will understand of the Code but it nonetheless carries weight and so it’s vital that we’re observing the same set of rules.

E-scooters

E-scooters do not feature in the new hierarchy nor the Code generally. This was a missed opportunity given their use is so widespread. Whilst this will irk many opponents who consider the use of e-scooters on our roads and cycle lanes as nothing more than a dangerous nuisance, their presence cannot be safely ignored.

It must be acknowledged that at the time of writing, the use of private e-scooters on public land remains illegal. This may well explain why the Code is largely silent on the topic. In my view, given the Government’s green ambitions and the growing popularity of micromobility, it’s unlikely to surprise many if there is a move towards legalising e-scooters once more data is available following the conclusion of nationwide trials.

In the absence of government regulation, it therefore remains moot where an e-scooter rider fits within the new pyramid of road-users. I would suggest that given Council-sanctioned rental e-scooters are permitted to be used in public, they ought to be afforded similar protections to cyclists regardless of their status. Arguably, it becomes difficult to maintain that someone riding a privately owned e-scooter in precisely the same place, in precisely the same manner, should be afforded less priority as a trial e-scooter rider.

Existing and future personal injury claims currently being conducted by firms such as my own may provide useful guidance to others who are unsure how the new Code may impact on determining fault for e-scooter accidents.

Concluding remarks

The impending changes add more weight to the prioritisation of greener modes of travel. This, alongside a raft of other government-led initiatives such as the development of green zones, the expansion of urban cycle lanes and e-scooter trials, suggests that those who opt for more traditional modes of transport could find themselves increasingly inconvenienced.

Whatever the view on their merit, if the rules are to increase road safety for everyone, there needs to be a concerted campaign to raise awareness and promote them: we need more public information films, guidance posted on social media and newspapers urging people to check out the changes on the government website.

Bolt Burdon Kemp has also set up a quiz to help unravel some of the confusing laws around e-scooters. To test your knowledge, click here.