Motor Risks Compendium: Summer update 2022

The transportation industry operates in an evolving risk environment, and the first half of 2022 has consequently seen a number of new developments in existing road traffic law and practice. Updates to the Highway Code, changes to mobile phone legislation, and the increased uptake of electric vehicles are creating additional responsibilities for fleet managers, whose task it is to ensure that all employed drivers — whether in personal vehicles, company cars, or heavy goods vehicles (HGV) fleets — are aware of how these developments will affect their usual practices and behaviours. While some of the new rules concern changes to the law, other guidance may be trickier to enforce. It is essential that clear and well-documented guidelines be in place, against which drivers can regularly refresh their knowledge. We have detailed below the three key areas of change seen so far this year, offer considerations of how each of them may affect fleet management, and suggest follow-up actions.

1. A Hierarchy of Road Users — Changes to the Highway Code

The risk issue

On Saturday 29 January 2022, the UK Government updated 10 sections of the Highway Code, resulting in 50 new or amended rules that have created a new hierarchy of road users. Motorists have always borne the burden of responsibility when considering collision between vehicles and vulnerable road users, and the following changes confirm that view will continue.

What has changed?

The Highway Code has introduced a hierarchy of road users, in which the most at-risk of serious accident are placed at the top of the priority ranking. ^[1] Full changes can be found here. The main adjustments to driving practice are as follows:

• Traffic should give way to people crossing or waiting to cross at an upcoming junction.
• Traffic should give way to pedestrians crossing before turning into a new road.
• Drivers, cyclists, and motorcyclists must give way to ‘pedestrians waiting to cross a zebra crossing, and to pedestrians and cyclists waiting to cross a parallel crossing.’^[2]

In addition, motor vehicles should not turn at a junction if this would cause a cyclist, horse rider, or horse drawn vehicle to stop or swerve. Where applicable, they should stop and wait for a safe gap in the flow of cyclists. 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.’^[3]

Cyclists are now recommended to:

• Ride in the centre of their lane on quiet roads, in slower-moving traffic, and at the approach to junctions or narrow roads.
• Keep at least 0.5 metres away from the kerb edge when riding on busy roads with faster-moving vehicles.
• Ride two abreast when in groups, particularly in larger groups, or when accompanying children or less experienced riders.
• Take care when passing parked vehicles, leaving at least 1 metre of space to avoid being hit by an opening car door.

These recommendations also affect motorists, as it may become increasingly common to see cyclists further to the right of the lane. Cyclists following these guidelines will increase their visibility and presence, but may require drivers to encroach onto the oncoming lane when overtaking. Rules 129 and 163 dictate that:

• Drivers may cross a double white line if necessary and the road is clear in order to overtake someone cycling or riding a horse at speeds below 10 mph.
• Motorists should leave at least 1.5 metres when overtaking cyclists at speeds of up to 30 mph and give them more space when overtaking at higher speeds.
• Vehicles may overtake horses or horse-drawn vehicles travelling below 10 mph and allow two metres of space.
• Drivers should allow at least two metres of space and keep to a low speed when passing pedestrians walking in the road.
• Motorists should wait or refrain from overtaking if it is unsafe or impossible to meet the above criteria.

The updated Highway Code also offers guidance on safely exiting vehicles with recommendations to use the “Dutch Reach” method, which requires vehicle operators to open doors using their hand on the opposite side to the door they are opening, e.g., using their left hand to open the right-hand side door. The “Dutch Reach” forces the vehicle occupant to turn their head and look over their shoulder to check that there are no upcoming pedestrians or cyclists whose path would be blocked by the opening door.

What should fleet managers do?

The above changes are not updates to road traffic law, but rather a reflection of good driving practice. Courts may therefore take elements of the Highway Code into consideration when deciding liability in the event of an accident, but the breach of a rule itself does not trigger a criminal offence or grounds for a claim. Fleet managers should impress upon drivers that they bear a heavy burden in terms of protecting other road users, and so it is crucial that they maintain awareness at all times. Managers should advise drivers on avoiding unnecessary distraction and on proper vehicle maintenance, while procuring vehicles with good driver visibility ratings. Fleet managers should make their drivers aware of the Highway Code’s changes and encourage them to take care especially when turning into junctions, where there is a greater risk of serious accident. It is worth reminding drivers that they may face personal consequences as a result of incidents, thereby encouraging good driving behaviour and diligent adherence to company rules, guidance, and recommendations.

2. Motorists and Mobile Phones

The risk issue

Since 25 March 2022, it is now illegal to use a handheld mobile phone, satellite-navigation (satnav) system, tablet, or any device that can send or receive data, while driving or riding a motor vehicle. The definition of “use” now includes taking photos or videos, scrolling through playlists, or playing games.

What has changed?

The legal change closes a loophole where “use” had been limited to “interactive communication”, such as using the device to call or text. Instances where drivers had used a handheld mobile phone to perform other tasks, for example, taking photographs or videos^[4], accessing any applications, or checking the time, had escaped prosecution. The expanded definition of “use” also applies in the following scenarios:

• Supervising the ‘driving of a motor vehicle while using a hand-held mobile phone or other hand-held interactive communication device.’^[5]
• Causing or permitting the driving of a motor vehicle by another person using a hand-held mobile device.

This law creates a potential trap for those supervising leaner drivers or traveling with drivers who ignore the ban. It also raises the question of culpability for those that would telephone drivers mid-journey, particularly if they suspected the driver would respond without use of a hands-free kit. The restriction continues to apply even where a driver is:

• Stopped at traffic lights.
• Queuing in traffic.
• Driving a car that turns off the engine when stationary.
• Holding and using a device that is offline or in “flight mode”.

Exceptions exist only in the following limited circumstances:

• The driver is safely parked, for example, in a designated parking bay.
• The driver needs to make an emergency call to 999 or 112, but only if it is not otherwise safe to stop. The driver would need to evidence why stopping was not possible.
• The driver is making a contactless payment, provided that the vehicle is stationary. Examples include payments at tollbooths and drive-through restaurants.
• The driver’s mobile phone is being used to park their vehicle remotely, though normal safe driving requirements continue to apply.

What should fleet managers do?

As with the recent updates to the Highway Code, it is essential for fleet managers to make drivers aware of these changes. Behaviour and practice are the key areas of focus, and managers should remind drivers that breaches of the law would carry personal consequences: anyone caught breaching the new mobile device law could receive six penalty points and a £200 fine. Furthermore, drivers who passed their test in the last two years could also lose their licence^[6]. There are, however, currently no plans to ban hands-free use, despite evidence indicating that the UK legal limit for alcohol blood level carries the same amount of distraction, if not slightly less, than a hands-free call^[7].

Organisations have often pushed back on outright bans on mobile phone use whilst driving, often citing operational necessities. However, there is clear evidence as to how mobile phone use impairs driving ability, and employers must consequently take into account the risk it creates. We suggest that fleet managers undertake a careful review of how drivers communicate whilst on the road. At the very least, we recommend that any conversation with a driver be limited to essential notifications and kept as brief as possible. Managers should encourage drivers to find a safe place to stop should they be required to meaningfully engage in long conversations or meetings, even if communicating hands-free. The case law on this offence is still developing, but the provisions relating to those who supervise, or cause or permit drivers to use a mobile device whilst driving should be of concern to those travelling with or managing drivers and consequently provide an incentive to enforce meaningful sanctions against drivers who flout the rules.

3. The Future of Road Risk: Electric and Autonomous Vehicles

The risk issue

Statistics show that in 2021, new car registrations for battery electric vehicles (BEV), plug-in hybrid electric vehicles (PHEV), and hybrid electric vehicles (HEV) increased by more than 58%, and registrations for mild hybrid electric vehicles (MHEV) increased by more than 64%^[8]. Fuel cost increases may be pushing motorists away from traditional internal combustion engine (ICE) vehicles, but there are still headwinds due to concerns over charging infrastructure and electric vehicle purchase costs.

What has changed?

As fleets become increasingly electrified, there are a number of opportunities to consider, including:

• Lower fleet running costs as a result of rising petrol and diesel costs compared to rates per kilowatt hour to charge electric vehicles.
• The potential for service and maintenance savings based on the assumption that, at least for pure electric vehicles, electric drivetrains tend to be simpler, and therefore, maintenance bills should be lower^[9].

However, the fleet managers must balance the rewards against the risks:

• EVs have fundamental differences in performance from ICE vehicles, with even basic models capable of astonishingly quick acceleration. Similarly, regenerative braking means that driving styles will need to be adapted.
• High voltage battery packs and charging facilities pose risk of electrocution if misused or damaged.
• Drivers may be stranded if they fail to suitably charge a vehicle prior to a journey or plan routes accordingly.

Meanwhile, the development of autonomous vehicles also raises the possibility of increased safety performance. Unfortunately, at the time of writing, no manufacturer has conclusively perfected this technology for fully self-driving vehicles where no user input is required, i.e., level 5 of The Society of Automotive Engineers ratings^[10]. Legislation and guidance will need to be updated to address this technology as it develops. The Automated and Electric Vehicles Act 2018^[11] is already in force, but the Law Commission of England and Wales and the Scottish Law Commission have only just recently published, in January 2022, the findings of their three-year review on the legal and regulatory framework necessary for the safe introduction of self-driving vehicles. This set out 75 recommendations to be addressed as part of the framework necessary to permit and authorise widespread autonomous vehicles on UK roads.

What should fleet managers do?

Electric vehicles managers will need to review current training and driving instructions to make certain the information pertaining to electric vehicle usage is current and covers the following points:

• Outlines company expectations about how vehicles are driven and treated. Training and instruction should remind drivers not to test acceleration speeds or otherwise engage in any activity that could be construed as racing to test the novel performance of electric vehicles. Employers may consider installing monitoring devices to track acceleration, braking, and cornering forces to confirm vehicles are not being driven recklessly.
• Reminds employees not to undertake maintenance activities beyond those authorised by the manufacturer, such as topping up washer fluid, etc.
• Instructs on proper charging procedure, especially if the employer is providing charging infrastructure, so that the drivers will understand how to use it safely at all times.
• Informs drivers of proper route planning and the need to incorporate suitable breaks for charging on long distance journeys. There are two elements to consider; firstly, there is the need to explain to drivers that stated ranges for battery life may far exceed what is attainable in the real world, particularly in cold weather or where other vehicle systems may drain the battery quicker than expected. Secondly, the training should make clear that drivers should build appropriate vehicle charge time into journeys, so they can avoid feeling pressure to drive recklessly in order to arrive on time.
• Educate drivers to appreciate that ultimately, autonomous systems are simply back-ups to their own driving capabilities, and they should keep a proper lookout and maintain control at all times during a journey.

_{[1] https://www.gov.uk/government/news/the-highway-code-8-changes-you-need-to-know-from-29-january-2022}

_{[2] Introduction - The Highway Code - Guidance - GOV.UK (www.gov.uk)}

_{[3] Introduction - The Highway Code - Guidance - GOV.UK (www.gov.uk)}

_{[4] https://www.bailii.org/ew/cases/EWHC/Admin/2019/2044.html}

_{[5] The Road Traffic (Fixed Penalty) (Amendment) Order (Northern Ireland) 2020 (legislation.gov.uk)}

_{[6] https://www.gov.uk/using-mobile-phones-when-driving-the-law#:~:text=Penalties,in%20the%20last%202%20years}

_{[7] http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/transport-committee/road-safety-mobile-phones/oral/103088.html (Q15)}

_{[8] https://www.smmt.co.uk/2022/01/covid-stalls-2021-uk-new-car-market-but-record-ev-sales-show-future-direction/}

_{[9] https://advocacy.consumerreports.org/press_release/electric-vehicle-owners-spending-half-as-much-on-maintenance-compared-to-gas-powered-vehicle-owners-finds-new-cr-analysis/}

_{[10] https://www.sae.org/standards/content/j3016_201806/}

_{[11] https://www.legislation.gov.uk/ukpga/2018/18}