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What does the law say about cyclist visibility?

Fluoro cycling kit
Chris Salmon
30 Jun 2020

Do cyclists really need to wear hi-vis? Here are the legal facts about clothing and visibility while riding on the road

A recent headline-generating tweet called for mandatory hi-vis clothing for cyclists. Cyclist visibility is addressed in the Highway Code, but the Code is a mishmash of enforceable law and unenforceable guidance. So what exactly does the law say about cyclist visibility?

The Highway Code

The Highway Code is an amalgam of rules for different UK road users. Some rules in the Code are legally binding while other rules are for guidance. ‘Road users’ include car drivers, motorcyclists, pedestrians and cyclists. The primary purpose of the Code is to promote road safety.

Differentiating between the law and guidance

Where the Code refers to the law, it will state that the cyclist 'must' or 'must not' behave in a given manner. The Code also references the relevant legislation.

If a rule is for guidance, the rule is framed in more advisory language such as 'The cyclist should…', or 'Take care when…'.

What happens if I break a rule?

If you break the law, you can be prosecuted. An annexe to the Code sets out the penalties you could face as a cyclist.

However, the Road Traffic Act 1988 states: 'A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may… be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.'

This clause effectively means that a cyclist can be found liable in a court, even if they have only broken a guidance rule. This section is particularly important in the context of making a cycling injury claim.

Cycling in the day

Rule 59 of the Code states that cyclists should 'wear light-coloured or fluorescent clothing which helps other road users to see you in daylight and poor light.'

If a cyclist was injured in the day, or in poor light conditions, and was not observing Rule 59, this could compromise their legal position. If the cyclist brings an injury claim against a driver, the driver could successfully challenge the claim, on the basis of a Rule 59 breach.

A court would consider the relevance of the cyclist’s clothing in the context of the accident. If the accident would have occurred regardless of what the cyclist was wearing (for example the driver pulls out of a blind junction at speed), the Rule 59 breach may matter less.

As with all breaches of the advisory rules, the effect of a breach on a claim will depend on the facts of the case.

Do I really need to wear hi-vis clothing during the day?

Studies carried out in relation to motorcycling have found that light-coloured clothing can make a rider actually harder to see in some contexts.

The key findings are that the most visible outfit will vary according to the lighting conditions and local environment at the time. These conditions could even vary within the confines of a short ride.

Set against the background of a rapeseed field or certain hedgerows, bright yellow is almost camouflage.

If you are wearing 'light-coloured or fluorescent clothing' at the time of an accident, a defendant cannot argue you were in breach of Rule 59, even if the specific colour you are wearing made it harder to spot you in the context of the accident.

That said, the more contrast there is between your clothing and your environment, the safer you will be. If an accident does occur, photographic evidence of the contrast will make it easier to argue you were clearly visible.

Daytime running lights

Daytime running lights (DRLs) are increasingly offered as standard on new cars. Most motorcyclists ride with lights on in the day. LED technology now means that DRLs are an option for cyclists. Cyclists can display flashing front and rear lights that, according to manufacturers, make them visible from a mile away. Some lights even have a field of vision that exceeds 180 degrees.

Studies have shown that DRLs can reduce accidents by 19% and injury causing accidents by 47%. Whatever you were wearing, a court would be unlikely to regard you as inconspicuous if you were using DRLs.

Night cycling

Rule 60 states that, when operated at night (defined as the period between sunset and sunrise), a bicycle: 'Must have white front and red rear lights lit. It must also be fitted with a red rear reflector (and amber pedal reflectors, if manufactured after 1/10/85).'

Unlike Rule 59’s guidance on clothing, Rule 60 is enforceable. Failing to use lights or reflectors when riding at night is illegal. If caught by the police, you may be fined or be required to complete a safety course.

However, Rule 59 also states that cyclists should wear 'reflective clothing and/or accessories (belt, arm or ankle bands) in the dark.' Liability for an accident might then be challenged on the basis of a Rule 59 breach, even if you had the legally-required lights and reflectors.

Contributory negligence

In UK law, liability for an accident is not always clear cut. It is possible to claim for compensation following an accident, even if you were partly responsible for the accident or partly responsible for the seriousness of your injuries (e.g. you weren’t wearing a helmet).

‘Contributory negligence’ is the legal term for this idea of partial responsibility.

For example, if you were ‘cut-up’ by a driver turning left, but you were trying to undertake the car at the point of collision, a judge might make a 50:50 liability ruling. In this example, you would receive 50% of the compensation you would have otherwise received.

What if you breached the Highway Code?

If a cyclist was in breach of Rule 59 at the time of an accident, they may still be able to claim compensation. A court may find that the cyclist’s clothing was in breach of Rule 59 and that this breach contributed to the accident. If the cyclist had been wearing brighter clothing, a speeding driver may have had more time to see them and brake sooner.

In these circumstances, the injured cyclist’s compensation award could be reduced by a percentage that reflects (roughly) the degree to which they contributed to the accident. Compensation might be reduced by 25% or 50%, for example.

Rule 60 is law, and riding at night without lights is also more dangerous than wearing dark clothing in daylight. As such, the court may adopt a stricter position on Rule 60 breaches.

A cyclist injured while riding at night without lights may be found to be liable for their injuries, even if another road user involved in the accident was also negligent.

The majority of cases are settled out of court and are not documented. Insurers will often use the threat of the ‘inconspicuous clothing’ defence to pressure cyclists into accepting a reduced offer before formal proceedings start.

Whether this lower offer is reasonable will depend on the facts of the case, and on the confidence of the solicitor. If a solicitor feels that clothing could be a factor, they may recommend accepting the lower offer.

Breaching a guidance rule could stop you getting legal representation

Most cycling injury compensation claims are financed with a Conditional Fee Agreement (CFA). This is more commonly referred to as ‘no win, no fee’.

Before representing a claimant, a solicitor will carry out a risk assessment to predict the probability of winning. Solicitors have different criteria for accepting claims, and may also be more or less risk-averse. Most solicitors will refuse a case if there is a lower than 50% chance of winning.

If the accident involved a breach of Rules 59 or 60, this could make it difficult for the cyclist to find suitable legal representation. This is the case even if the cyclist has a claim in a strictly technical sense.

Observing the code

Hi-vis clothing is a contentious issue for cyclists, and it’s tempting to treat those parts of the Highway Code that are not enforceable by law, like Rule 59, as merely guidance. This is a risky approach.

The police cannot stop and fine you for wearing an all-black outfit while cycling, but there are other considerations. Failing to observe the spirit of the Code may put you at a greater risk of injury and could ultimately compromise your ability to claim compensation following a life-altering accident.

Chris Salmon is a co-founder and Director of Quittance Legal Services and a keen cyclist; he's a regular commentator in the legal press

References

In Elson v Stilgoe (2017), the court found in favour of the defendant driver. Although clothing wasn’t the reason for the judge’s decision, the judge stated that even if they had found for the claimant cyclist, the cyclist’s compensation would have been reduced by a 'substantial' amount, because of a failure to wear appropriate clothing and cycling gear.

In Callier v Deacon (2009), a teenage cyclist’s compensation was reduced by 55% on the basis that the claimant was wearing dark clothing and did not have bike lights on at the time of the accident.

In Williams v Ashley (1999), the defendant driver initially argued that the claimant cyclist was negligent to wear inconspicuous clothing. This defence was dropped when the matter came to trial, although the defendant’s position was supported by a detailed report authored by RoSPA.

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