Well, they are modestly useful to us but don’t change the substantive law. We as motorcyclists sit in the vulnerability spectrum as less vulnerable than equestrians but more vulnerable than car drivers. The new Highway Code sets out a league table of vulnerabilities, with pedestrians as the most vulnerable and drivers of large vehicles the least.
Highway Code is not law
However, if you overtake at a junction and get scooped up, the judge will make exactly the same decision as s/he would have done, with or without the Highway Code changes because the Highway Code does not make law. Parliament does and judges make the common law.
The Highway Code has set out in terms what the law has said since the 1970s. There are old cases which make it very clear that the duty of the driver of a ‘large and invulnerable vehicle’ ‘requiring special skill and licence’ to drive owes a higher duty than a less imposing vehicle, in a case which considered the duties of a truck driver from the 1970s. The idea that the bigger and more dangerous your vehicle, the higher your duty of care to other road users is not new.
Lady Justice Hale, as she was, and who went on to become the presiding judge of the Supreme Court (the judge who declared the proroguing of Parliament unlawful if you recognise the name but cannot place her), so in legal terms a very serious judge, coined the phrase ‘destructive disparity’ in a 2003 case which every lawyer who knows about claims involving cyclists, pedestrians and equestrians knows off the top of their head.
The doctrine, in a case which turned on a pedestrian injury, was that the courts can take into account the danger intrinsic in a car, and by implication larger vehides. I have used Lady justice Hale’s doctrine in front of judges with mixed results. Judges are not especially convinced as to the particular vulnerabilities of motorcyclists but now the Highway Code specifically draws a hierarchy of vulnerability, I think those submissions will gain more traction.
A court is obliged to pay attention to what the Highway Code says. It does not bind the court, the courts certainly pay it more than lip service. However, motorcyclists have always been noted as vulnerable users in the Highway Code, and the advice for other road users, as to how to interact with motorcyclists has not really changed.
Overall, the change to the Highway Code will be of some benefit to advocates in court and solicitors advising motorcycle clients as to their prospects, but it is not a huge change, whether to cyclists, motorcyclists, equestrians or pedestrians.
Be nice to each other
Rules about sharing the road nicely, and looking before you commit are still at the core of road safety. That is, everyone is still expected to act responsibly which is pretty well what the old Highway Code said. The only substantive change I can see is cyclists are encouraged to ride in the middle of lanes on twisty roads to be more visible. But they always could.
Bike Magazine May 2022