Highway Code Changes 2022: What does it mean for cyclists?

The introduction of the ‘hierarchy of road users’ within the amended Highway Code has the potential to impact on road accident liability and by extension, insurers’ indemnity spend. It is therefore vital that claims handlers have an understanding of the changes. In this article, we consider how specific changes to the Highway Code affect cyclists.

Background

In 2019 the Department for Transport published a report entitled ‘The Future of Mobility: Urban Strategy’ which included a list of nine principles that underpin the Government’s approach to transport mobility. Principle 3 states that ‘Walking, cycling and active travel must remain the best options for short urban journeys’.

Cycling can lay claim to a number of substantial benefits. Climate change and obesity are two of the biggest problems that society faces and cycling has the potential to simultaneously offer huge benefits on both fronts. It is low-cost and, in most cases, low risk; certainly in regard to the risk posed to other road users. The mental health benefits of exercise are well known and cycling as a recreational activity can have significant social benefits.

Bicycle sales rocketed in 2020 as a result of the pandemic. There were a number of short-term factors behind the record sales and the cycling boom in general: people had more time on their hands; exercising outdoors became the highlight of an otherwise monotonous day and the weather was generally good. The other key ingredient was the extremely quiet roads, which meant that people could cycle at their leisure, without fear of injury or intimidation. Without busy roads, cycling became attractive.

The DfT’s published statistics for cycling and walking in 2020 contain many interesting statistics and provide a valuable source of insight into active travel issues. Of the people surveyed:

• 53% said they would be encouraged to cycle more if the roads were safer.
• 74% of men felt confident when riding their bikes; for women, it was only 43%.

Those figures suggest that if road conditions are made more conducive to cycling then more people will cycle — and in potentially large numbers. There will of course always be people for whom cycling will never be attractive or possible. However, data and anecdotal evidence indicates that there is a huge latent potential for cycling and the Government is keen to promote cycling as a fundamental part of its urban transport vision.

In that context, the changes to the Highway Code (HC) implemented in January 2022 aim to make the roads safer for cyclists and other vulnerable road users (VRUs). There are a number of important changes, particularly the creation of the ‘hierarchy of road users’. The courts have effectively recognised a hierarchy of road users under the guise of concepts of ‘moral blameworthiness’, ‘destructive disparity’ and ‘causative potency’ (see para 13 for example) but the amended HC will now make such concepts familiar to all road users.

Changes for cyclists

In addition to the new hierarchy concept, we consider some of the specific changes made to the HC insofar as they relate to cyclists, as follows.

1. Bikes and e-bikes

Perhaps the first thing to say is that the HC draws no distinction between ‘normal’ bikes and e-bikes within the hierarchy of road users. In the vast majority of real-world road situations, such equivalence will be entirely correct. However, not all e-bikes used on the road will satisfy the legal definition of an e-bike within the Electrically Assisted Pedal Cycles — EAPC — (Amendment) Regulations 2015 and it is always worth considering the precise nature of the e-bike involved in the accident.

If a road user is using a powerful electric vehicle — a speed pedelec for example (some are now being marketed as aspirational electric vehicles with hefty price tags) - then applying the ethos of the hierarchy of road users, where those users who can do the greatest harm have the greatest responsibility, it is likely that a court would impose a higher duty on that road user. It is also worth bearing in mind that such vehicles are already classified as motor vehicles in the eyes of the law.

2. Rule H1: Road users who can do the most harm have the greatest responsibility

As above, this is not a new concept in tort law but it is likely to represent a new paradigm for most road users. Cyclists need to be aware that they have a responsibility to “reduce danger to pedestrians” in the same way that motorists have a responsibility to reduce the danger they pose to cyclists.

See also new Rule 63: Sharing space with pedestrians, horse riders and hors drawn vehicles: “Slow down when necessary and let them know you are there; for example, by ringing your bell (it is recommended that a bell is fitted to your bike), or by calling out politely.”

3. Rule H2: Situations in which pedestrians have right of way

Cyclists need to be aware of the following:

• At a junction you should give way to pedestrians crossing or waiting to cross a road into which or from which you are turning.
• Cyclists should give way to pedestrians on shared use cycle tracks and to horse riders on bridleways

The first bullet point in particular describes a situation which can commonly arise. Picture a cyclist approaching a T-junction. There is a pedestrian waiting to cross the road just before the T-junction. The cyclist should give way to the pedestrian and allow them to cross. The same would be true if the pedestrian was waiting to cross the road that the cyclist was turning into.

Note the significance of a ‘should’ based-rule: “Although failure to comply… will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law) to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.” Therefore, in the above scenario, we can expect a lawyer acting for a pedestrian claimant injured by a cyclist crashing into them to cite the new rule. Note, however, that the rule does not extend to pedestrians waiting to cross under general circumstances: it is limited to cyclists turning into/out of roads.

4. Rule H3

This applies to drivers and motorcyclists: “You should not cut across cyclists, horse riders or horse drawn vehicles going ahead when you are turning into or out of a junction or changing direction or lane, just as you would not turn across the path of another motor vehicle. This applies whether they are using a cycle lane, a cycle track, or riding ahead on the road and you should give way to them.”

“You should stop and wait for a safe gap in the flow of cyclists if necessary. This includes when cyclists are:

• approaching, passing or moving off from a junction
• moving past or waiting alongside stationary or slow-moving traffic
• travelling around a roundabout”

The second bullet point is worth considering further: imagine the common scenario of a cyclist finding themselves waiting at a set of traffic lights and a car pulls up next to them. The cyclist is “waiting alongside stationary traffic” and therefore the driver of the car should “wait for a safe gap” before setting off from the lights. There is no express requirement to allow the cyclist to set off first, but if a collision were to occur between the cyclist and the car driver, there are likely to be arguments as to whether the driver properly complied with new Rule H3.

5. Clothing

The issue of clothing inevitably arises in any claim involving a cyclist and the relevant section of the HC is Rule 59. The changes to Rule 59 are very subtle and are unlikely to have any significant bearing on claims. There is a new line of text relating to helmets: “Evidence suggests that a correctly fitted helmet will reduce your risk of sustaining a head injury in certain circumstances.” The wording is unlikely to change how such issues are addressed in practice.

6. Rule 61: Cycle routes and other facilities

This is another issue that can frequently arise: what if an accident takes place on a road between a cyclist and the driver of a motor vehicle and the cyclist was not using a nearby cycle lane?

The amended wording of Rule 61 provides: “Use facilities such as cycle lanes and tracks, advanced stop lines and toucan crossings (see Rules 62 and 73) where they make your journey safer and easier. This will depend on your experience and skills and the situation at the time. While such facilities are provided for reasons of safety, cyclists may exercise their judgement and are not obliged to use them.”

There is a subtle shift in emphasis from the previous wording (“Use cycle routes, advanced stop lines, cycle boxes and toucan crossings unless at the time it is unsafe to do so. Use of these facilities is not compulsory and will depend on your experience and skills, but they can make your journey safer”) which seemed to impose the expectation that cycle routes should be used unless it was unsafe to do so, compared to the new wording which shifts the emphasis to use such facilities where they provide a safer option. In practice, a defendant insurer arguing that a cyclist ought to have been safely riding on a cycle lane rather than on the road might need to look carefully at the wording of new Rule 61.

7. Rule 66: Cycling dynamics and behaviours

Rule 66 does not have a title as such, but it is clearly aimed at controlling the manner of cycling on the highway.

There are three important changes here and cyclists should now:

• “avoid any actions that could reduce your control of your cycle”
• “be considerate of the needs of other road users when riding in groups. You can ride two abreast and it can be safer to do so, particularly in larger groups or when accompanying children or less experienced riders. Be aware of drivers behind you and allow them to overtake (for example, by moving into single file or stopping) when you feel it is safe to let them do so”
• “not ride close behind another vehicle in case it stops suddenly”

The first bullet seems to be a catch-all for any conceivable action that could have a bearing on the cyclist’s control of the bicycle. This will provide helpful recourse to insurers faced with a claim from a cyclist: if they can show the cyclist did something which affected their control, this point can now be raised by direct reference to the HC which lends a layer of authority to any such argument.

The second bullet will be worth considering when presented with a claim where the claimant cyclist was riding as part of a group. The instruction to allow drivers to overtake when deemed safe to do so is based on the cyclist’s subjective assessment (there are important rules which apply to drivers overtaking — see below).

The third bullet is a new wording and it can be helpfully compared to the previous wording, which stated: “you should not ride close behind another vehicle”. The new wording, therefore, adds the ‘in case it stops suddenly’ element and the purpose is seemingly to highlight the specific risk factor associated with this activity. In a claim scenario where a cyclist goes into the back of another vehicle (or even another cyclist), an insurer now has an enhanced HC point to make.

8. Rule 67: Potholes and Passing vehicles on the inside

More cyclists on the road gives rise to a greater potential for s41 highways claims. Amendments to Rule 67 include a new wording relating to carriageway defects: “watch out for obstructions in the road, such as drains, service covers and potholes, positioning yourself so you can move to the left (as well as to the right) to avoid them safely”. The common claim scenario whereby a claimant cyclist fails to see a pothole and subsequently falls and sustains an injury will often involve an allegation from the relevant highway authority that the claimant contributed to the accident by failing to avoid the pothole. The new wording of Rule 67 adds another dimension to such an argument: that the claimant failed to position themselves such that they could have avoided it by steering to the left or the right as required by the HC.

It might also be possible in some situations to argue that in a claim where a pothole is located to the left side of the carriageway, the claimant ought to have been riding more centrally — as envisaged by Rule 67 which states that cyclists should position themselves such that they have an opportunity to avoid a defect by steering either left or right (see also Rule 72 below).

The amendments to Rule 67 also include a new wording relating to a scenario whereby a cyclist engages in what is effectively an undertaking manoeuvre of a large vehicle: “when cycling on the road, only pass to the left of large vehicles when they are stationary or slow moving and you should proceed with caution as the driver may not be able to see you. Be particularly careful on the approach to junctions or where a large vehicle could change lanes to the left.” Unfortunately, serious accidents arising from such a scenario are all too common.

9. New Rule 72: Road positioning

Rule 72 states: “When riding on the roads, there are two basic road positions you should adopt, depending on the situation.

1. Ride in the centre of your lane, to make yourself as clearly visible as possible, in the following situations:
   
   • on quiet roads or streets — if a faster vehicle comes up behind you, move to the left to enable them to overtake, if you can do so safely
   • in slower-moving traffic — when the traffic around you starts to flow more freely, move over to the left if you can do so safely so that faster vehicles behind you can overtake
   • at the approach to junctions or road narrowings where it would be unsafe for drivers to overtake you
     
     
2. When riding on busy roads, with vehicles moving faster than you, allow them to overtake where it is safe to do so whilst keeping at least 0.5 metres away, and further where it is safer, from the kerb edge.
   Remember that traffic on most dual carriageways moves quickly. Take extra care crossing slip roads

As above, this rule is likely to be an important consideration in any claim involving a carriageway defect.

10. New Rule 73: Junctions

The new Rule contains the following advice: “At junctions with no separate cyclist facilities, it is recommended that you proceed as if you were driving a motor vehicle (see Rules 170 to 190). Position yourself in the centre of your chosen lane, where you feel able to do this safely, to make yourself as visible as possible and to avoid being overtaken where this would be dangerous. If you do not feel safe to proceed in this way, you may prefer to dismount and wheel your bike across the junction.”

A cyclist who fails to position themselves centrally and instead positions to the left of the lane could give a car driver the impression that they were turning left. Clearly, there is an emphasis on the driver not to endanger the cyclist in such a scenario but it might also be argued that the cyclist took up a road position that was contrary to the position recommended by the HC.

11. Rule 77: Busy roads

This rule is an amended version of the previous rule 75 (dual carriageways). It now includes the suggestion that when trying to cross a busy road, it may be safer and easier to dismount the bicycle and push it across.

12. Rule 79: Roundabouts

The new wording states: “If you are turning right, you can ride in the left or right-hand lanes and move left when approaching your exit. Position yourself in the centre of your lane if it is safe to do so (see Rule 72) and signal right to indicate that you are not leaving the roundabout. Alternatively, you may feel safer walking your cycle round on the pavement or verge.

If you decide to ride round keeping to the left-hand lane you should:

• be aware that drivers may not easily see you
• take extra care when cycling across exits. You should signal right to show you are not leaving the roundabout
• watch out for vehicles crossing your path to leave or join the roundabout.”

This is not a completely new rule and cyclists were permitted to use the left-hand lane on a roundabout to turn right anyway, but how many road users are aware or conscious of such a possibility in the real world?

Motorists should avoid trying to second-guess a cyclist’s intentions by virtue of their lane choice. Similarly, cyclists occupying the left lane but intending to turn right should think carefully about their visibility (and by extension, their position within the lane) and should signal right to make clear to other road users that they are proceeding around the roundabout.

13. Rule 140: Cycle lanes and cycle tracks

This amended rule requires motorists to give way to cyclists using cycle lanes or cycle tracks (note: cycle lanes are shown by road markings and signs; cycle tracks are routes for cyclists that are physically protected or located away from motor traffic, other than where they cross side roads. Cycle tracks may be shared with pedestrians).

Motorists should not cut across cyclists using a cycle lane/track and should be prepared to stop and wait for a safe gap in the flow of cyclists before crossing the cycle lane/track.

14. Rule 151: Slow-moving traffic

This amended rule now states that motorists should “allow pedestrians and cyclists to cross in front of you” in slow-moving traffic. Coupled with the existing requirement for motorists to “be aware of cyclists and motorcyclists who may be passing on either side”, it is clear that motorists have to be acutely aware of what is going on around them when travelling in slow-moving traffic. They should be prepared to let cyclists change lanes in front of them if they so wish. Note that the amended Rule 160, which applies to moving traffic, now expressly states that motorists “should give way to cyclists when you are changing direction or lane — do not cut across them”.

Rule 163 (below) also includes a new wording as follows: “Cyclists may pass slower moving or stationary traffic on their right or left and should proceed with caution as the driver may not be able to see you. Be careful about doing so, particularly on the approach to junctions, and especially when deciding whether it is safe to pass lorries or other large vehicles.”

15. Rule 163: Overtaking

There is a new part of rule 163 which deals with the distances that drivers should give cyclists (and other VRUs) when overtaking:

“[G]ive motorcyclists, cyclists, horse riders and horse drawn vehicles at least as much room as you would when overtaking a car (see Rules 211 to 215). As a guide:

• leave at least 1.5 metres when overtaking cyclists at speeds of up to 30mph, and give them more space when overtaking at higher speeds…
• take extra care and give more space when overtaking motorcyclists, cyclists, horse riders, horse drawn vehicles and pedestrians in bad weather (including high winds) and at night
• you should wait behind the motorcyclist, cyclist, horse rider, horse drawn vehicle or pedestrian and not overtake if it is unsafe or not possible to meet these clearances”

It is important to note that the 1.5 metre gap is a minimum and applies at speeds of up to 30mph. At faster speeds, at night and in bad weather, larger gaps are necessary. It will therefore be important to consider the prevailing conditions when an accident occurs involving a driver overtaking a cyclist.

This article is not intended to be a comprehensive note of all the changes but provides an overview of some of the key changes relating to cyclists and cycling claims. A full note of the changes can be found in the 'Table of changes to The Highway Code'.

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