Driving Cyclists Off the Road!
The Driving Standards Agency (DSA) is consulting on a revised draft of the Highway Code – the specific section relating to cycling can be viewed here (from page 9). The Code could potentially play a key role in the Government’s efforts to create safer conditions for cycling. Unfortunately, despite CTC’s recent efforts to make it easier for cyclists to claim injury damages from drivers who hit them, the revised draft of the Code seems set to take us in exactly the opposite direction. More than 11,000 of you have written to your MPs about this issue, now we are hoping that you will send your comments directly to the DSA.

Please use our suggested response as a basis for your comments to the DSA. Feel free to make changes as you see fit, then email your submission to [email protected]. The deadline is May 10th.

Background

The major problem with the draft revision of the Code is a proposed change to the existing rule on cycle facilities.

The most significant change to the Code is to old Rule 47, new Rule 58. Cyclists were previously told to “Use cycle routes when practicable. They can make your journey safer”. In this form, the wording presented no real problems.

By contrast, the proposed new wording says: “Use cycle routes when practicable and cycle facilities such as advanced stop lines, cycle boxes, and toucan crossings where they are provided, as they can make your journeys safer”. The distinction between the wording of “Use cycle routes when practical” (on the one hand) and ‘[Use] cycle facilities… where provided’ (on the other) means that the use of cycle facilities will no longer be discretionary for any cyclist who wants to protect him/herself from the threat of adverse legal action. The words ‘such as advanced stop lines, cycle boxes, and toucan crossings’ do not exclude other types of cycle facility from the legal argument.

If a cyclist was injured and there was a cycle facility nearby (of whatever kind), the driver’s insurer would have all the pretext they needed to argue that any compensation due to the cyclist should be reduced on the basis of “contributory negligence”, i.e. that the cyclist was at least partly the author of his/her own misfortune because if s/he had been using the cycle facility, the collision would not have occurred.

It is also likely to be used by some police officers to take unjustified action against cyclists where they ride out wide in the road to avoid being overtaken in circumstances where this would be dangerous (as recommended by the Stationary Office publication “Cyclecraft” and by the Government-backed National Standard for cycle training.)The Cyclists’ Defence Fund is already supporting a cyclist in such a case, but the new Highway Code wording would almost certainly lead to a substantial increase in such cases.

In effect, these words introduce the compulsory and non-discretionary use of facilities by the back door.

The threat of “contributory negligence” claims is not just an academic nicety. Other existing rules in the Highway Code are already being used against cyclists in this way, and cyclists have already lost thousands of pounds after crashes that have not been their fault for fear of facing what can be a traumatic challenge through the courts. Some solicitors, poorly informed about the issues, even encourage this and reductions of 20 to 50 percent are typical.

One case in point is the existing Highway Code rule which simply says “you should wear a cycle helmet which conforms to current regulations” (old rule 45 / new rule 56). Regardless of your views on the pros and cons of helmet-wearing per se, one only has to remember how this rule affected 9-year old cyclist Darren Coombs and his family. Not only did a driver leave Darren with permanent brain damage; but they his parents then had to face the claim that they themselves were guilty of “contributory negligence” for allowing him to ride unaccompanied and without a helmet. Nobody should have to suffer the anguish which they, several other cyclists and their families, and (in one recent tragic case) a bereaved widow had to go though, simply because of that one word “should” in the Highway Code. CTC is calling for this to be replaced by “Consider wearing a cycle helmet”; we believe this would be a far more reasonable and less prejudicial alternative. (View CTC’s position on helmets, or visit www.cyclehelmets.org, the website of the Bicycle Helmet Research Foundation, for a full discussion of the helmet issue).

In one important respect though, the rule about using cycle facilities is even more insidious. With helmet-wearing, it seems that those cyclists who have dared to resist the claim of “contributory negligence” (including the Coombs family) have always managed to win the argument in court eventually. It takes guts to do this, not to mention a strong-willed cycle-friendly solicitor! However, to the best of CTC’s knowledge, the courts have rejected every helmet-related claim of “contributory negligence” brought before them, ruling in every case that a helmet would probably not have prevented the injuries which occurred.

By contrast, it will be almost impossible to argue against “contributory negligence” claims based on non-use of a cycle facility. Challenging such a claim would take not just guts, but downright foolhardiness. However strongly the cyclist might argue that their decision not to use the facility was a rational one, the court would be almost bound to conclude that the collision would have been avoided if the cyclist had been in a different place at the time.

CTC is calling for the following changes to the Code:

* Remove all words which could give rise to unwarranted “contributory negligence” claims against cyclists (including those relating to use of cycle facilities and helmets);
* Include clearer advice to drivers on safe interactions with cyclists (e.g. on how much space to leave when overtaking a cyclist);

* Ensure that its advice to cyclists (particularly that on negotiating roundabouts) is in line with the Government-backed National Standard for cycle training and;

* A recommendation that anyone wishing to improve their confidence and safety should undertake cycle training to the National Standard