It is interesting that a story that made headline news today was that the RAC has just reported that pothole related breakdowns for motorists are currently the highest for 3 years.
It may come as no surprise therefore that the number of pothole related claims involving cyclists has also risen dramatically whether for merely bike damage or damage together also with personal injury.
With the dramatic increase in the sale of electric bikes over the past 2 years ( please see other articles on this topic ) and the correspondingly huge extra cost of these bikes, even non injury related cycle pot hole claims can be very costly for the victim.
It may be worth therefore our taking a stock check on what the law is currently telling us about such claims.
The Highways Act 1980 allows the highway authority, usually the local council, a defence under section 58, which in layman’s terms, is that they can successfully defend a claim if reasonable care had been taken to secure the part of the road where the defect occurred and make it safe for traffic. The Act gives a list of statutory factors to take into account such as the character of the road, the level of traffic on it, the state of repair a reasonable person would expect the road to be in and whether any warnings were in place about the defect on the road. The way the courts look at these situations can be gauged by some now we’ll known cases most of which involve cyclists and pedestrians.
In Mills v Barnsley MBC 1992 the claimant tripped when she caught her heel in a hole in an area of paving bricks. The case reached The Court of Appeal and the main issue related to how deep and wide the defect needed to be. In this case, it was 1 inch but the Court Of Appeal ruled the test was one of how dangerous the defect was not the size of it. The test was reasonable foresight of harm to users of the highway. Here the defect was minor so the risk was low and the claim was dismissed.
Jacob v Hampshire County Council 2013 was a good case for cyclists. A cyclist was injured after hitting a hole in the road caused by water penetration and the evidence was that the particular joint was particularly susceptible to water penetration damage within any 2 month period. The highway authority’s regular 6 months inspection was therefore held to be inadequate and it was found liable.
Another case Wilkinson v City Of York 2011 made it clear that local authorities cannot hide behind the defence of lack of financial resources. Here a cyclist going over her handlebars when hitting a pothole 30cm across and 4 cm deep was successful. The local authority said they didn’t have the resources to inspect more than once per year when it was determined by the court that inspection every 3 months was more appropriate.
In Crawley v Barnsley MBC 2017 ( oh dear what is it about the roads in Barnsley ?!)a jogger was successful in the face of the same argument advanced by the council, namely lack of resources which meant that they had to delay inspections. The Court of Appeal appeal did not accept this defence. Lack of resources alone does not afford the council a defence of reasonable inspection under section 58.
With the strains on the public purse likely to only increase in the coming years, especially at a local authority level, these more recent cases do not bode well for local councils.
However, as cyclists and pedestrians, we are entitled to be safe and we can only hope that the civil law will continue to extend that protection whenever it is necessary to do so.