Cyclists vs potholes – a lawyer’s view on a never ending problem

Cycling in the dark and the wet can be difficult enough, but when you consider the added and often hidden danger of potholes, simply commuting to and from our homes can become a dangerous journey.

The hidden menace

Potholes seem to be more of a problem and faster to form in the winter months when water penetrates a small imperfection in a road surface. Once it freezes and expands, the road surface begins to break up and a pothole forms under the weight of heavy traffic.

The worst accident I’ve ever suffered was because I didn’t see a pothole. This one in particular was obscured by standing water and I was thrown off. Fortunately I fell to my left and onto the pavement. As painful as this was (my pride and physically), the incident could have been much worse as to my right was fast moving traffic.

Who's to blame?

If you are unfortunate enough to be injured from an accident caused by a pothole and your accident happened on a highway maintained and repairable at public expense, your claim is likely to be directed towards the authority responsible for maintaining that surface. This falls under section 41(1) of The Highways Act 1980.

Often the authority is the county or district council.  But it may be necessary to look towards independent contractors who might have been working on a highway and failed to return it to its original condition or left it in a dangerous state.

An injured cyclist must prove, on the balance of probabilities (i.e. that it was more likely than not), that the part of the highway where the accident occurred was not reasonably safe and that the accident was caused by the dangerous condition of the highway.

What can an injured cyclist do?

Evidence is the crucial factor here. It is important to have photographs showing the size, location and measurements of the pothole along with the accounts of anyone who witnessed the accident or was cycling with you at the time.  It is also helpful to report potholes or dangerous areas of road surface when you are out cycling to confer a greater duty on the highway authority. This places the incentive on them to repair the pothole, once they are aware of the defect.  A trivial defect is however unlikely to give rise to liability.

The highway authority has a statutory defence if it can prove that it had taken care to secure that the part of the highway in question, was not dangerous to traffic. (section 58(1) of The Highways Act 1980). The burden to prove this rests with the Defendant so the inspection and maintenance records are vitally important.

Clearly it is unreasonable to expect the repair of a defect that emerges overnight, and the law is not imposing a council of perfection, but there must be reasonable measures in place to ensure that defects are dealt with as soon as possible. Obviously the larger and more longstanding the pothole, the more likely the chance of succeeding with the claim.