The Highway Code and Motorbike Law in Scotland
Lianda Barnes, Motorcycle Solicitor at Digby Brown
There are so many prosecutions and civil claims based on statutes (the law that is written down into ‘Acts’ by Government), that many drivers are unaware that claiming damages for losses arising out of normal road traffic accidents almost exclusively rely on the principles of common law.
That means that road traffic law in Scotland, including motorcycle law, is not based on a code that has been written down by Government but rather is based on principles developed through the decisions from courts in Scotland and from the courts in the rest of the UK.
Solicitors, when they are trying to establish fault, including in motorcycle accidents, will often start with the Highway Code.
Highway Code for Motorcyclists and cyclists
The Highway Code has separate chapters for cyclists and motorcyclists. Many people are often surprised when we tell them what the Highway Code actually says about certain things.
For example everyone seems to know that you are not supposed to overtake at junctions. Bikers invariably come off worse when they attempt to overtake a car that ends up turning right. What often surprises some drivers is when we point out the Highway Code places a duty on the vehicle turning right “to make sure you are not being overtaken”.
Motorcyclists and cyclists are categorised by the Highway Code as road users requiring extra care. Partly because of that, the way the law in Scotland applies to bikers can be different to the way you would apply the law to cars – the duties of care we owe in a circumstance change according to who we should be thinking of when we are taking care.
European countries and bike accidents
Many European countries have a codified approach to law and also have a strict liability or no fault type approach to bicycle accidents. That would mean a car driver turning right into a junction, that hits a bicycle would be solely at fault for the accident.
It has been suggested that our law should be changed to the continental approach when dealing with bicycles. That perhaps would be an interesting debate to have, but there would certainly be difficulties making that kind of law fit in with our otherwise common law and adversarial approach.
But also, on the face of it, there is no reason why such a change shouldn’t extend to motorcyclists too. The argument that bicyclists should never be at fault when hit by a car must be based on their extreme vulnerability – as that might justify making a car driver under an absolute duty to avoid hitting a cyclist.
Highway Code treats cyclist and motorcyclists similarly
The Highway Code treats cyclist and motorcyclists similarly in that they are road users that you need to pay special attention to in certain situations because they are harder to see and have access to a variety of road positions.
Whilst motorcyclists will usually have more protection from clothing and equipment and in some circumstances from their heavy vehicle making them less vulnerable than cyclists, the other side to that is they tend to be in the offside of lanes, putting them into conflict with other vehicles and they travel at higher speeds.
Should the law in Scotland be changed so a car driver that collides with a biker is always be at fault?
I think that would be a lively debate. For now, however, if you are interested in bike law in Scotland and want to spread the word – give a car driver a copy of the Highway Code.