Potholes – bad for car drivers, equally as bad for cyclists. They can cause accidents resulting in damage to cycles and injury to cyclists. Sometimes the injuries can be serious and result in fatalities.

Claims for compensation by cyclists for injuries and losses can be more complex than claims against car or other vehicle drivers where it is often easier to work out who is at fault.

A cyclist injured by a pothole will have to prove the basic principles involved in making a claim. These are:-

Liability.  You will need to show that someone or somebody was negligent;

Causation. You will need to show that the other persons negligence caused the accident and the injuries;

Quantum.  You will need to produce evidence (such as medical evidence) to prove the extent of injury and loss sustained.

The three elements of the argument can be quite clear in a road traffic claim where you are injured by another driver. If you are knocked down by another driver then negligence would be proved by showing that the driver failed to follow the Highway Code, causation is the injuries that result and quantum depends on the extent and seriousness of injury.

If however the accident was caused by a pothole then the claim can be more complicated to prove, especially the first element liability. It will not always be clear who has been negligent or in breach of their duty of care? Under the Highways Act 1980 the relevant highway authority has a statutory duty to maintain the roads in their area. This means that generally a County Council (or local authority) will have responsibility to maintain the roads in their regional area. Motorways and some major trunk roads are the responsibility of the Highways Agency.

When the relevant local authority has been identified it will be necessary to show that they were at fault by proving that they were negligent or in breach of their statutory duty of care. Different local authorities have different policies for maintaining the roads and highways in their area. Maintenance includes repairs to potholes. Local authorities have a duty to maintain the roads that they are responsible for under section 41 of the Highways Act. This means that they must ensure that the roads are repaired and maintained to a sufficient standard so that they are usable and safe for road users. A pothole is a defect and if the relevant local authority is aware of the defect (or should be aware of it) then it is foreseeable that the presence of the pothole is a hazard that could cause harm or damage to road users. If it was not repaired and it causes an accident then this could make the local authority liable for the damage and any injury if they failed to maintain the road in accordance with their statutory obligations, and their duty of care.

The local authority may have a statutory defence to any claim under s.58 of the Highways Act if they can show that they took all reasonable precautions to maintain the highway and could not reasonably have been expected to have repaired the highway at the time the accident occurred. By way of example, suppose a defect or pothole developed and became dangerous overnight. It would not be reasonable to expect the local authority to be aware of and repair the pothole by the time of the morning rush hour the next morning. They will have a s.58 defence to a claim if an accident occurs. If however the pothole is on a heavily used road in the County and the local authority have been aware of it for some time, but do nothing about it then they may not have a s.58 defence available to them if someone has an accident and it can be shown that the local authority should have treated the defect as a priority for repair (for example, due to the fact that it was on a major heavily used important road in the County). A pothole on a minor road such as a small housing estate will have a different priority for repair and the urgency to repair it will not be as needy as a major heavily used road in the County. The fact that a pothole on a minor road was not repaired within a week after it developed is unlikely to be treated as serious.

The local authority will need to assess the priority of the roads in its region. A heavily used road leading into a town will have a higher priority for repair than a minor road on a little used estate. The Council will need to take decide how bad the defect or pothole is by taking into account measurements of length, width and depth. Councils have a limited budgets to allocate for repairs. Each Council will have a policy for repairs and road maintenance and the policies will differ from council to council. It is their interpretation and policy to comply with the obligation to maintain the highways in their area in accordance with the Highways Act. Main roads will have a priority and the worse the defect then the higher the priority for repairs.

Freedom of Information requests made to local authorities provides information about their maintenance policies and the amount of their budgets allocated to maintaining the highways in their area. These requests can also reveal what percentage of maintenance was carried out in accordance with the policy time limits and also whether the local authority met their targets for repairing potholes and how many claims for accident damage they have had over a financial year. Some Councils meet their repair and maintenance targets, others do not.

Liability can be difficult to consider, but from the information we hold we have an early insight into potential liability issues right at the start of any claim which can help us consider what investigations to concentrate on and we can compare any response and information received with the potential policies and procedures that the Council should be adhering to.