Cycling accidents involving potholes3 Dec 2019 | Nicola Hall
If a cyclist is injured as a result of a pothole or defect on the road they were travelling on at the time of their accident, they may be able to pursue a cycling accident claim. With the increased use of e-scooters on London’s roads, with their smaller wheels, potholes are even more dangerous.
It is important to establish who is responsible for the defect or pothole. This is often a county council or unitary authority. In London, it will be the common council in the City of London, or if outside the city, the relevant London Borough. A simple search by area and postcode can assist in identifying who is the relevant authority.
If an accident occurs on a trunk road, then the Defendant will be the Secretary of State.
Section 41(1) Highways Act 1980 provides that “The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty to maintain the highway”.
This duty of care is owed to all members of the public who are using that highway. The duty is absolute but only concerns the fabric of a highway. Maintenance of materials or objects which are not to do with the “fabric” of the highway (such as street furniture) would be excluded. However, in contrast, a duty to maintain drainage would trigger Section 41(1).
Firstly it has to be shown that the highway was sufficiently dangerous to traffic or pedestrians. Secondly that the dangerous condition was created as a result of the failure to maintain or repair a highway. Thirdly it must be shown that an individual sustained an injury as a result of this failure. All three of these criteria must be satisfied in order to meet the court’s threshold test.
Dangerous or not?
When determining whether a defect or pothole is sufficiently dangerous, each case will be considered on the individual facts and circumstances. Whilst the courts have failed to give a binding decision as to the specified size of the defect, differences in the level of once inch or more are likely to be regarded as dangerous and unsafe.
The Statutory Defence
The burden is on the Defendant to prove that they have a defence to a highways claim. If you have been injured as a result of a pothole, you do not have to show that the council failed to take the requisite care.
If a highway authority has taken such care as is reasonable, to secure that part of the highway where the accident happened then they will have a defence.
A number of factors have to be considered including the character of the highway including the age of the road, its surface and drainage capabilities as well as the traffic that was expected to use it.
The standard of maintenance must be appropriate to that highway and the state of repair. Finally, consideration as to whether the highway authority knew about the defect or pothole or could reasonably be expected to know about it has to be borne in mind.
When deciding whether an authority “could reasonably have been expected to know” is a question that relates to the maintenance and inspection system that they have in place.
An authority has to adopt a system of maintenance and inspection, which includes checking that a complaint book and a system have been implemented, to have a defence to a claim.
If a highway authority can show that they inspected the highway within the last 1,3,6, or 12 months (depending on the type of road) and they did not identify or fail to repair the defect that caused your accident then they will escape liability and not be at fault, even though at the time the defect was dangerous.
What evidence do you need?
After an accident, take photographs of the defect itself, in terms of width, height and depth. It is helpful to have a point of reference such as a coin which you can place in the hole or to return with a ruler and take a photograph showing the measurements.
Ensure that you have photographed the size and shape of a defect and remember key points of reference so you know the exact location of the defect. If possible a video is also helpful.
If you instruct a solicitor specialising in cycling accidents, they will request copies of inspection records from the highway authority for 5 years prior to an accident, as well as maintenance records from the highway authority for the same time period. Details of any previous complaints ought to be obtained, both in terms of the overall condition of the highway as well as the specific defect. Minutes of meetings from the highway authority and engineering reports relating to the site are also relevant. Copies of medical records will be obtained from both the Claimant’s GP and hospital.
We will never know at the outset of a claim if we will succeed and we have to wait for the council’s disclosure before advising a client on prospects of success.
Share this article
Nicola Hall Associate Solicitor
For expert advice or to start your claim, please call our specialist cycling accident solicitors today.
For a free initial conversation call 020 7485 8811
Email us Send us an email and we’ll get back to you
Cycling News & InsightsVIEW ALL
Do you have to wear a bike helmet?
Should bike helmets be mandatory in the UK? Recently, Dan Walker was involved in a nasty collision with a motorist...Read more
Top 10 Major Highway Code Changes for Cyclists
New Highway Code rules for cyclists At the end of January 2022, the Highway Code was updated to make British roads...Read more
Cycling accident advice
Now more than ever before, people are embracing the pleasures and benefits of cycling in and around London. Unsurprisingly, the...Read more
The law around E-bikes and E-scooters explained
Why are electric bikes legal but not scooters? E-bikes and e-scooters are the new rides on the block. To many,...Read more
Bike Boxes – what are the rules?
Cycle boxes at traffic lights I read a post recently on a London cycling forum in relation to some confusion...Read more
Highway Code changes just the start in protecting...
The 2020 changes to the Highway Code do not go far enough to change driver behaviour and protect cyclists and pedestrians,...Read more
The importance of parks for cycling
I ventured outside the comfort of my home this past weekend for the first time in 11 weeks. As I walked...Read more
Helmet Cameras: Personal Safety and the Law
Helmet cameras have become one of the must-have items for cyclists, especially those commuting to and from work. They offer...Read more
Bike Cam Prosecutions
Have you ever been cut up by a van turning left? Or been riding along only to find the tarmac...Read more
Around the World In One Day for NHS...
On Thursday 30th April 2020 I took part in a 240 mile cycle, raising money for the NHS. This ride was to...Read more
Boom time for bikes – London Mayor’s new...
Yesterday Sadiq Khan unveiled his ‘London Streetspace’ programme designed to transform London’s streets to accommodate a possible ten-fold increase...Read more
Highway code refresher for cyclists
As we start week 7 of lockdown, there is one thing that is more noticeable on the roads…cyclists. Whether you...Read more
Cycling accidents involving potholes
If a cyclist is injured as a result of a pothole or defect on the road they were travelling on...Read more
Do I need insurance for cycling?
There is no legal requirement for cyclists to hold insurance cover in order to cycle in the UK. That includes...Read more
Death of cyclist in road traffic accident opens...
After the death of a cyclist outside the Olympic park, Stuart Kightley, personal injury solicitor at Osbornes re-visits the question...Read more
E-Bikes – are they the future for commuting?
The Government released some clarification last week in relation to the upper limit of the cycle to work scheme. Many...Read more
Intimidatory driving to become breach of traffic law?
A new driving offence of ‘intimidatory driving’ is being considered by the government to crack down on close passes by...Read more
Local hubbub over Highbury corner
Highbury Corner in Islington is one of the busiest interchanges in the whole of the UK (never mind just London)...Read more
Cycling Health Benefits – A ride a day keeps...
In my 20s I had a massive breakdown and was given an incurable diagnosis with a scary name. I went...Read more
New Research Proves That Cycling Officially Makes You...
New research published by the YMCA shows that those with an active lifestyle are up to 32% happier than people who...Read more
Cycle Accident: The Near Miss Project
One major problem of cycling in the UK is other intolerant road users. This is a large reason for my...Read more
Can a ‘bike backie’ get you in trouble?
London’s controversial mayor Boris Johnson has been caught by The Sun newspaper giving his lawyer wife Marina Wheeler a...Read more
Ealing cyclists up in arms over latest death
After 51-year-old Met Police officer, Claudia Manera was killed in a bike accident at the junction of The Broadway and...Read more
The risks and rewards of cycling in London
Stuart Kightley of Osbornes solicitors asks the question: is cycling in London good for your health? I acted for a...Read more