Q&A: Pothole ‘off’ claim…

Q I am sure the roads built by the Romans were better! My local route to work has literally rattled my teeth due to the potholes. Last month I had to work late so had to head home in the dark. Usually I am pretty good at running the gauntlet of the craters dotted along the way. However, this time I was not so lucky and as I was rounding a gentle left-hander my front wheel dropped into a hole and off I went. After catching my breath (I don’t bounce as well as I used to!) I got up and realised I had broken my forearm. A lovely chap called Geoff who lived nearby heard the crash and came out of his house. He helped me get the bike on to his drive and then kindly took me to hospital. Geoff then told me he was also a biker and had reported that pothole every month for the last six months and the council had done sweet FA. I’ve now reported my claim to the council but they have denied liability. What do I do now?

A These cases can be very difficult to win so evidence is the key. You’re going to have to prove the local authority responsible for that particular road has breached its legal duty to maintain it as set down in law (S41 of the Highways Act 1980) and that this caused you to fall off. So, practically, how can you increase your chances of being successful? To use an old phrase, ‘A picture speaks a thousand words.’ Get photos of the offending pothole as soon as you can, i.e. do not leave it months in case it gets filled in. If you can, measure the width and depth with the tape measure in shot. Next, Geoff. If he’s happy to help, get a copy of all his complaints to the council. I would also recommend you instruct a solicitor and get them to get a witness statement from him about the offending pothole. In my experience, just about every applicable local authority deny liability, at least initially, following a pothole accident.

They will almost certainly say they had a suitable inspection and repair system in place and ‘… had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic’ (S.58 of the Highways Act 1980). Whether this is true or not will depend on where the offending pothole was located. If, for example, it is on a busy ring road, they should have been inspecting the road regularly, say monthly, and fixing repairs where needed. If they can prove that, they will likely have a ‘Special Defence.’ If they can’t, you will likely win. Therefore, your solicitor needs write and ask for a copy of their records. Once you have them you can make a decision as to whether they have a ‘Special Defence’ or not.

The MB legal column is compiled by managing partner Andrew ‘Chef’ Prendergast and his bike-riding barristers and solicitors at White Dalton Motorcycle Solicitors.