Comparative concepts of vulnerable road users in German/French law v the recent change to the Highway Code

by Lauren Haas, serious  injury lawyer

Having spent a decade dealing with international serious injury law cases before I moved to my current position in the Serious Injury Team in our Southampton office, I was interested to note the forthcoming changes within the English Highway Code which prioritise vulnerable road users such as cyclists and pedestrians.

Highway code hierarchy

The new hierarchy within the Highway Code is as set out below and intends to commit those road users with lower vulnerability to take responsibility for the safety of those with higher vulnerability:

Most vulnerable (1) to least vulnerable (8) list:-

• Pedestrians
• Cyclists
• Horse riders
• Motorcyclists
• Cars and taxis
• Vans and minibuses
• Large passenger vehicles
• HGVs

These changes reflect a much broader and expressly stated duty of protection towards vulnerable road users than was the case in previous versions of the Highway Code. On the face of it, it is hard to see how these changes could be seen as controversial. It stands to reason that as the operator of a (quite common) 1 tonne passenger car, one has a far higher and foreseeable risk of injuring a pedestrian when colliding with them and thus should be particularly careful when driving near pedestrians or cyclists.

Plans reflect Continental approach to liability

What is however also fascinating is that it reflects a more Continental approach to liability in road traffic accidents, which has been in place for decades in such countries as France and Germany although they have taken it further than the Highway Code changes. 

Indeed, since the summer of 2002 and further to paragraph 828 (2) of the BGB in Germany no pedestrian child under 10 years of age can be held liable for damage caused by negligence in road traffic accidents. Furthermore, when assessing liability a German court will also take into account the so-called Betriebsgefahr (the abstract inherent danger of operating even a correctly driven or operated vehicle) when determining the respective apportionment of shares of responsibility. 

There does not have to be any actual danger/risk/negligence, nor does the driver or owner of the vehicle have to behave contrary to the traffic regulations. The mere fact that the vehicle is being used is sufficient for an operational risk to be affirmed. Applied in relation to non-motorised road users, this means the Betriebsgefahr of operating a car can only be displaced by:

• proving force majeure (paragraph 7 StVG), or
• in particularly egregious cases of contributory negligence (as we would term it), for instance a pedestrian crossing multiple lanes of an A-road whilst the pedestrian crossing lights were red and had been so for some time.

Highway Code developments welcome but need to be publicised

All in all, it is therefore very interesting that the Highway Code is currently moving the goal posts to further benefit vulnerable road users. 

As a lawyer dealing on a daily basis with the significant and, at times, life-changing injuries arising from road traffic accidents even at relatively low speeds, I welcome this development and hope these changes will be clearly signposted and communicated to all road users in an effective publicity campaign. 

If the changes prevent even one accident or serious injury to a road user and especially to the most vulnerable of them all, pedestrians, then they will have been worthwhile.

Find out more about Irwin Mitchell's expertise in helping people following road accidents at our dedicated serious injury section.

If the changes prevent even one accident or serious injury to a road user and especially to the most vulnerable of them all, pedestrians, then they will have been worthwhile.”