by Bikers Friend
19 Jul 2012
CAN I CLAIM IF I CRASH DUE TO POTHOLES IN THE ROAD?
Here we discuss what you can do if you are injured because of potholes or other holes in the road. Our lawyers have dealt with these issues on behalf of bikers for many years and are well versed in dealing with these hazards and the difficulties you may encounter when negotiating with obstinate local authorities whose duty it is to make sure it doesn’t happen.
I don’t think there’s a motorcycling solicitor that hasn’t encountered a disaster caused by a pothole at some stage of their motorcycling life. Unfortunate, but there’s nothing like firsthand knowledge of the problem to get a better understanding of it, both in and out of the courts.
WHAT THE LAW SAYS ABOUT ROADS AND THOSE RESPONSIBLE FOR ALLOWING POTHOLES TO APPEAR
The Highways Act of 1980 relates to all roads, pathways, cycle ways and carriageways. For the purposes of this website we intend only to refer to roads that are maintainable at public expense or if you prefer, the roads that they are supposed to maintain from the vast amount of Council Taxes that they seem to waste every year.
So, the word ‘maintain’ conjures up images of wet tar, road rollers and council workmen staring into holes and sipping tea. But maintenance goes further than this. To maintain a road means that the road and its surface must be safe for its intended use. The problem today is that there is no other place to ride your machine when going from A to B unless you spend virtually all of the time on a public road. They are everywhere and we have little choice as motorcyclists other than to use them.
So, if we are literally forced to use them, the person responsible for them must ensure that you don’t get injured.
Great theories, but theory is where it all ends. The sad and stark fact is that people are injured every day on the roads, not just from other motorists, but from the state of the roads that have caused the accident, and there’s no bigger culprit than the ubiquitous pothole.
But bikers have a different strategy. First they hope that the Council have done their job properly, and secondly if they haven’t, they need to know some good prayers, because that’s all they usually have between themselves and the road surface.
Councils are under a statutory duty to ensure that this doesn’t happen, but they don’t seem to be very successful. In some cases they seem to be downright dilatory in their attitude and seem to view the hitting of a pothole as being ‘hard luck’.
In one aspect they are right, because if you are injured, it’s hard luck for the council involved as they will end up shelling out compensation in damages for injuries caused.
Potholes are a nuisance to the car driver, but can be deadly to the motorcyclist. Sometimes it’s not the falling from the motorcycle that causes the injury it is passing vehicles that aren’t able to brake on slippery and uneven surfaces that collide with the rider as he lies in the road; and all because of a pothole.
So in short, the local authority is under a duty of care to ensure that the roads are fit for purpose, and if they aren’t and you are injured, then that’s who you sue.
IS IT AS SIMPLE AS THAT?
You should know better than ask that question; of course it’s not as simple as that, and that is why you need the help of our motorcycle Lawyers. Nothing is ever as simple as that when dealing with these three major hazards.
The plain fact is, it should be simple, but like Eels, Councils will do their level best to escape their obligations, especially when it means paying out money.
Let’s say we are riding along the road when suddenly we hit a pothole. The Council will immediately blame the mystery third party, probably the fictitious wagon that caused the pothole by spinning its wheels. Like Insurance companies, Councils have endless lists of excuses to try and justify potholes caused by lack of maintenance.
They will be using that old adage of ‘reasonability’ and a ‘reasonable regime of inspection’.
The law in this country is applied in the same way in many cases, but the outcomes vary. The reason for this is that Judges rule differently. You may find some judges who are sympathetic to motorcyclists, whilst others are fiercely against anything that frightens horses. In the same way some judges don’t feel the same way about local authorities as our lawyers do, whilst others won’t tolerate their excuses. It’s a lottery when you begin an action, and sometimes there’s no telling which way a judge will decide.
WHAT’S A REASONABLE INSPECTION REGIME?
The local authority will maintain they have a proper system of inspection. They may even show records of regular inspection of their system of roads. As an example, say a local authority has fifty miles of roads to inspect. If they only inspect it once every two weeks, because of the limited roads they have to look after, once every two weeks can hardly be deemed reasonable. But if an authority has ten thousand miles of roads to inspect, then once every two weeks may be accepted as being reasonable given the size of the task and of course the nature of the defects.
Sometimes it is possible to find witnesses who can testify how long a pothole has remained unrepaired, or even better still someone who has reported it to the council and they have done nothing about it. Usually a photograph can give some indication to a reasonable man as to how long a pothole has been allowed to develop.
If you know what to look for, and our motorcycling solicitors do, there is evidence everywhere that will indicate the length of time a pothole has remained unattended.
CAN THEY SUCCESSFULLY USE THIS AS A DEFENCE FOR POTHOLES?
The answer to this is, yes.
Section 58 of the Highways Act gives them a ‘get out’ if they can prove that they have taken ‘such care as in all the circumstances was required to secure that part of the highway to which the action relates was not dangerous to the traffic’. Therefore, a highway authority needs to take reasonable care of the road.
Of course, they don’t have it all their own way and must argue their point to the satisfaction of the judge if they are to succeed. The Court must look at the following points when reaching a decision:
The nature of the road, i.e. is this a main highway (and therefore the traffic that is reasonably expected to use it)
The standard of maintenance appropriate for a road of that character and used by that traffic
The state of repair in which a reasonable person would have expected to find the highway
Whether the highway authority knew or could reasonably have been expected to know the condition of that part of the highway to which the action relates was likely to cause danger to users of the highway, i.e. have pot holes and oil spillages already been reported?
Where the highways authority could not have reasonably been expected to repair that part of the highway before the accident occurred, what warning notices of its condition had been displayed.
So as you can see, road accidents caused by this type of defect can be fraught with danger. After a bike accident, if you just happen to say the wrong thing, at the wrong time to the wrong person, your case can be damaged beyond recovery.
So, if you find yourself the victim of a negligent council or authority due to potholes, contact us. We understand, we have the experience and we are motorcyclists; just like you.
A phone call will cost you nothing.
Talk to us, biker to biker on 0800 622 6517 or visit www.motorcyclecompensation.com
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