Highway Code — GB Legal Update

Road traffic accident (RTA) claims in Great Britain are increasingly focusing on incidents involving vulnerable road users (VRUs), such as pedestrians, cyclists, motorcyclists, and e-scooter riders. Unlike vehicle occupants, VRUs lack physical protection, leading to a higher likelihood of severe injuries even in low-speed collisions. This shift in focus is driven by the growing popularity of active travel and recent amendments to the Highway Code, which introduced a 'hierarchy of road users' placing greater responsibility on those who can cause the most harm. Legal professionals must navigate evolving duties of care, complex contributory negligence assessments, and the unique evidential challenges presented by these often catastrophic claims, which stand apart from the low-value whiplash claims targeted by recent reforms.

The landscape of road traffic accident (RTA) claims in Great Britain is undergoing a significant transformation, with an increasing emphasis on incidents involving vulnerable road users (VRUs). Traditionally, RTA claims have been predominantly associated with collisions between motor vehicles. However, as urban environments increasingly promote active travel and alternative forms of transport, the risks faced by individuals outside of vehicles have become more pronounced, leading to a surge in claims from pedestrians, cyclists, motorcyclists, and other VRUs.

This growing segment of personal injury litigation presents unique challenges and considerations for legal practitioners. Unlike occupants of cars, vans, or lorries who benefit from seatbelts, airbags, and protective vehicle structures, VRUs have minimal physical protection in the event of a collision. Consequently, even seemingly minor impacts can result in severe, life-changing injuries and substantial long-term consequences, distinguishing these claims from the lower-value whiplash injuries addressed by recent legislative reforms.

This article will explore the evolving legal framework governing RTA claims involving vulnerable road users in Great Britain, examining the statutory context, key case law, and the practical implications for legal professionals. It will highlight the critical role of the updated Highway Code and the complexities surrounding liability, causation, and contributory negligence in these often high-stakes cases, arguing that a nuanced and specialised approach is essential for effective representation.

The legal framework for RTA claims in Great Britain is primarily rooted in the law of negligence, requiring a claimant to prove that the defendant owed a duty of care, breached that duty, and that the breach caused foreseeable damage. The Road Traffic Act 1988 provides the statutory backbone for road safety and motoring offences, influencing civil liability.

A pivotal development in this area is the introduction of the 'Hierarchy of Road Users' within the Highway Code, which came into effect in January 2022. Rule H1 of the Highway Code explicitly states that "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." This principle applies most strongly to drivers of large goods vehicles, passenger vehicles, vans, cars, and motorcycles, who are expected to exercise a higher degree of care towards more vulnerable individuals such as pedestrians (especially children, older adults, and disabled people), cyclists, horse riders, and motorcyclists. Rules H2 and H3 further elaborate on specific responsibilities at junctions, requiring drivers to give way to pedestrians crossing or waiting to cross, and not to cut across cyclists, horse riders, or horse-drawn vehicles when turning.

While the Highway Code itself does not create legal liability, Section 38(7) of the Road Traffic Act 1988 stipulates that a failure to observe its provisions "may in any proceedings (whether civil or criminal…) be relied upon by any party to the proceedings as tending to establish or negative any liability." This means the new hierarchy and associated rules are highly persuasive in court when determining fault and the standard of care expected of road users, particularly in cases involving VRUs. This stands in contrast to the Civil Liability Act 2018 and the Whiplash Reform Programme, which primarily target low-value whiplash claims and have significantly altered the claims process and compensation levels for minor injuries, but generally do not apply to the often more severe injuries sustained by VRUs.

The application of negligence principles in VRU claims is profoundly influenced by the inherent vulnerability of these road users and the updated Highway Code. Courts consistently impose a high burden on drivers of motor vehicles, recognising that they are in control of potentially dangerous weapons. This heightened duty of care means that drivers are expected to anticipate the actions of VRUs and take greater precautions to prevent harm. For instance, drivers must maintain a proper lookout, adjust speed appropriately, and be prepared for unpredictable behaviour, especially from children or those with impaired mobility.

A critical and often contentious aspect of VRU claims is the assessment of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. While VRUs are afforded greater protection, they are not absolved of their own responsibility for safety. Courts will consider the "moral blameworthiness" and "causative potency" of each party's actions when apportioning liability. The Supreme Court's decision in *Jackson v Murray* [2015] UKSC 5 is a seminal case in this regard. Here, a 13-year-old girl who stepped out from behind a bus into the path of an oncoming car was initially found 90% contributorily negligent, reduced to 70% on appeal, and finally settled at 50% by the Supreme Court. The court emphasised that a child's judgment and self-control differ from an adult's, and the driver's excessive speed and failure to keep a proper lookout were significant factors. Similarly, in *Eagle v Chambers* [2003] EWCA Civ 1107, a pedestrian walking in the middle of a dual carriageway was found 40% contributorily negligent, with the driver, who was under the influence of alcohol and failed to see her, bearing 60% of the blame. These cases illustrate the nuanced approach courts take, often placing a higher share of blame on the motorist due to the destructive disparity between a vehicle and a VRU.

The recent Highway Code changes, particularly the hierarchy of road users (Rules H1-H3), are expected to further influence these assessments. By explicitly placing greater responsibility on drivers of larger vehicles, the changes reinforce the existing judicial trend of holding motorists to a higher standard. This may lead to a reduction in findings of high contributory negligence against VRUs, especially in scenarios where a driver fails to give way at junctions or to maintain safe passing distances. However, the principle that all road users must behave responsibly remains, and a VRU's blatant disregard for their own safety could still lead to a finding of contributory negligence.

Emerging VRU categories, such as e-scooter riders, present additional complexities. While rental e-scooters operating under trial schemes are typically insured and can be used on public roads and cycle lanes, privately owned e-scooters are classified as motor vehicles under the Road Traffic Act 1988 and are generally illegal to use on public roads, pavements, or cycle paths due to licensing, insurance, and construction requirements. This legal ambiguity creates challenges for claims, particularly where a private e-scooter is involved, potentially requiring claims to be made through the Motor Insurers' Bureau if the rider is uninsured.

The increasing prevalence of vulnerable road users on Great Britain's roads, coupled with the recent amendments to the Highway Code, marks a significant shift in the landscape of RTA claims. Legal professionals must recognise that claims involving pedestrians, cyclists, motorcyclists, and other VRUs are distinct from conventional vehicle-on-vehicle incidents, often involving more severe injuries and a different approach to liability assessment. The 'hierarchy of road users' enshrined in the Highway Code reinforces the heightened duty of care owed by drivers of larger vehicles, influencing how courts will apportion blame and assess contributory negligence.

For practitioners, this necessitates a thorough understanding of the updated Highway Code, a nuanced approach to assessing blameworthiness and causative potency, and a readiness to gather comprehensive evidence, including accident reconstruction and expert medical testimony, to fully articulate the often catastrophic impact of these injuries. It is crucial to anticipate arguments of contributory negligence and to frame cases within the context of the driver's increased responsibility. As active travel continues to grow and new forms of transport emerge, the legal profession must remain vigilant, adapting strategies to effectively represent vulnerable road users and ensure access to justice in this evolving and increasingly important area of personal injury law.