New Highway Code for pedestrians – what does this mean for road safety?

Pedestrian crossing a road at zebra crossing

By Mairi Day, Partner in our Edinburgh office at Digby Brown

At Digby Brown, we act for literally thousands of people who have been injured in road collisions.

Whether drivers, cyclist, motorcyclists, passengers, horse riders and pedestrians and whether it happened here in Scotland or abroad.

In each of these cases, we need to determine who was at fault for a collision and why. 

Sometimes the answer to that is fairly straightforward but on other occasions it is less so. 

  • In the case of a collision between car and a cyclist for example, was the cyclist turning into a junction or filtering? 
  • In the case of a collision between car and a pedestrian, was the pedestrian at a zebra crossing? 
  • Did the pedestrian cross a road not at a crossing into the path of an oncoming car? 

In many of these cases we have to consider all aspects of the incident and what bearing these unique circumstances will ultimately have on who is held responsible. 

A helpful guide as to the responsibility of road users has always been the Highway Code by the Department of Transport. From 29 January 2022 changes were made to the Highway Code which have been of great interest to personal injury solicitors. 

Might the changes help us more in our assessment of the responsibility of the road users involved in collisions and will they ultimately make our roads safer? 

Road user’s ability to cause harm

“Causative Potency” is a legal concept common to personal injury law.

It is used to describe the likelihood that one road user would injure another road user.

For example - an HGV is more likely to injure a pedestrian than a cyclist. So an HGV may be said to have greater causative potency.

This concept was also thrust into the public spotlight following the new “Hierarchy of Road Users” now in place in The Highway Code – and it is clear that causative potency has played a part in this hierarchy.

“Everyone suffers when road collisions occur, whether they are physically injured or not. But 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 and passenger vehicles, vans/minibuses, cars/taxis and motorcycles.”

Causative potency has always been a factor to assess in road collisions but the fact that the hierarchy of road users has been included in the Highway Code now sets it out very clearly for the public to understand. It recognises the responsibility of one type of road user for another. 

The changes in the Highway Code insofar as they relate to cyclists have been welcomed and also commented on by my colleagues at Digby Brown. I think it is important also to note the benefit that the changes afford to pedestrians. 

Main changes in The Highway Code for pedestrians

Pedestrians find themselves at the bottom of the hierarchy of road users and are now more recognised as being the most vulnerable, with a clear responsibility on other road users to take extra care for them. The same section of new rule H1 later notes:

“Cyclists, horse riders and drivers of horse drawn vehicles likewise have a responsibility to reduce danger to pedestrians.”  

This isn't to say that a pedestrian has no responsibility for their own safety. They are still expected to do everything they can to stay safe and to minimise their risk of being involved in a collision, especially when it comes to busy roads such as walking on pavements or paying attention to pedestrian crossing signals.

But now, road users who can cause more harm have a responsibility to reduce their danger to pedestrians.

Drivers responsibility to pedestrians

When it comes specifically to driver’s responsibility to pedestrians, the new rule H2 states drivers should now give way to pedestrians crossing or waiting to cross at a junction (before it was only when a pedestrian was actually crossing the road), pedestrians have priority at a zebra, parallel crossing and light controlled crossing when they have the green light.

Cyclists responsibility to pedestrians

This new H2 rule also recognises that a pedestrian is more vulnerable in the event of a collision with a cyclist. Cyclists must also give way to pedestrians on shared use cycle lanes and at junctions where they are waiting to cross, zebra and parallel crossing as well as light controlled crossings where it is green. It also highlights ONLY pedestrians are allowed to use the pavement (this includes wheelchair users and mobility scooters).

Other notable changes to existing rules include:

  • Routes shared with other road users (not drivers) (rule 13) – Where footways and cycle tracks are shared, there is now a specific note that cyclists should respect the safety of pedestrians whilst at all times ensuring that pedestrians do not obstruct them. This applies also to routes shared between pedestrians, cyclists, horse riders and drivers of horse-drawn vehicles. Pedestrians’ safety is to be respected. 
  • Zebra and parallel crossings (rules 19 and 195) - Previously, drivers did not have to stop until a pedestrian had walked onto a crossing. The changes to the rules mean that now, drivers MUST give way not only to pedestrians already established on crossings but also to pedestrians waiting to cross. The use of the word “must” confers a greater responsibility on drivers regarding this point – emphasising that the anticipation of pedestrians stepping out is important. 
  • Slow moving traffic (rule 125) - Drivers must now allow pedestrians and cyclists to cross in front of them. In addition, crossings are to be kept completely clear as blocking crossings makes it more dangerous for pedestrians to cross. Drivers are not to enter crossings unless they can completely clear them (rule 192). 
  • Overtaking (rule 167) – In addition to the previous rules about not being permitted to overtake where you would come into conflict with other road users, drivers are now specifically not permitted to overtake on the approach to crossing facilities or where a car ahead is slowing to stop for a pedestrian who is crossing from a traffic island. 
  • Junctions (rule 170) – Pedestrians are now specifically noted as an addition to the other road users that drivers are to watch out for at junctions. The changes also mean that not only are drivers to watch out for pedestrians crossing at junctions but they are now to give way to pedestrians crossing or waiting to cross in line with the new rule H2 above. Again, this brings an emphasis on the importance of anticipating what action another road user will take. 
  • A hierarchy within a hierarchy (rule 204) - Changes to the wording of some the rules emphasises not on the responsibility of road users for pedestrians but specifically for more vulnerable pedestrians within that class of road user, being children, older people and disabled people. In my experience, the majority of cases that I have dealt with for pedestrians having been struck by motor vehicles have involved more vulnerable pedestrians – children and older people  - and to note these types of pedestrians specifically is to be welcomed. 

Will the changes help determine who is responsible in road collision?

So, might the recent changes in the Highway Code assist personal injury solicitors more in our assessment of the responsibility of the road users involved in collisions? 

The hope would be that they will. There is certainly more clarity about the hierarchy of road users and about circumstances in which different classes of road users might come into contact with each other so as to confer a greater responsibility on those higher up in the hierarchy such as drivers to take more care for those further down the hierarchy such as pedestrians.  

Will the changes make our roads safer? 

That remains to be seen. It seems to me that the changes have not been advertised as much as they might have been and it is not known how much the public are aware of the changes. 

Hopefully the changes in the Highway Code will be communicated and understood by those road users at the top of the hierarchy and filtered down to make all our road users anticipate, be more aware of, be more respectful of and be more considerate towards those further down the hierarchy. 

Not all of us are drivers. Not all of us are cyclists. But, we are all pedestrians. When we step outside each day in whichever of these capacities, I hope that these changes in the Highway Code will bring more awareness of other road users which will result in safer roads for us all.