As the cold and wet weather sets in for winter, more and more potholes are bound to appear as water leaks in to surface cracks, expands in freezing temperatures, and breaks open the ground. Having been the victim of pothole damage in my car, costing me £300 earlier in the year for a new tyre, alloy refurbishment, and re-tracking, I know how annoying it is.
But riding over a pothole on a bicycle can be far, far more devastating. Whilst drivers feel the annoying bump of a pothole, probably cursing the council at the same time, a bicycle rider is liable to come off of their bike and sustain serious injuries. We have dealt with many cyclist injuries that have been caused by potholes and the injuries are often devastating.
So what are your rights when it comes to making a claim for compensation? Will you win?
Making a Successful Claim
Winning a claim against the council or a local highways authority for a pothole accident is inherently difficult to achieve. The odds are highly stacked against you. So for this reason, take heed of this warning:
Make sure you instruct an expert personal injury lawyer who only specialises in personal injury claims and has years of experience in winning compensation claims!
This is all because the law that applies, the Highways Act 1980, allows councils and highways authorities to have a special defence if they can prove that they have a reasonable system of inspection and maintenance in place of dealing with defects on roads and pavements.
Typical systems work as follows:
- A busy city centre road may be inspected every one to three months.
- A fairly busy town area may be inspected every three to six months.
- A cul-de-sac in the sticks of the countryside may only be inspected every 12 months.
The general rule of thumb is that, the busier the area, the more frequent inspections should be. And the inspections themselves could be on foot or even drive by inspections which are arguably not great at spotting defects.
A Stressful Scenario
So let’s take the following scenario: you ride over a pothole and break your elbow joint badly, resulting in several operations, and at least four months off work resulting in a significant amount of lost earnings and physical rehabilitation. You have a mortgage and kids to pay for, and your wife only works part time so money is tight; especially when you can’t earn because you’re off work.
The pothole you rode over is on a road inspected every six months. The date of your accident was 31st October 2013, and the last inspection regime was 4th May 2013. If during the May inspection the pothole was not there, meaning it must have appeared between May and your accident, the council will likely successfully defend your claim. The road isn’t due for an inspection for another few weeks, so you have been the unfortunate victim of injuring yourself on a pothole that has appeared between inspection dates.
It doesn’t matter how badly injured you are. It doesn’t matter if you have lost £10,000 in earnings. Under Section 58 of the Highways Act 1980, if the council can prove that the pothole that caused your accident was not there the last time they inspected the road, and if they can show their inspection regime is reasonable, winning your claim will be very, very hard.
What can we do?
In some scenarios, the answer might be nothing. If the inspection regime is good and the porthole hasn’t been reported, the council will defend the claim and taking a case like that to court could be a fool’s errand. Judges are not partial to claims against public organisations funded by the taxpayer; so when they have a solid legal defence, you’ll be fighting a massive uphill struggle.
BUT – we have represented countless victims for pothole accident claims, and there are certain steps that can be taken then might mean you can still win your claim.
It has been proven in the past that inspections miss things or are nowhere near as thorough as they should be. In fact, we have seen a council defend a claim because they inspected the road every month and we, with a little research, discovered that the hole had been there for over a year!
For the best chance of claiming, follow this simple guide:
- Do NOT contact the council – speak to us first. As soon as you contact the council, they will probably repair the hole. This may not be beneficial for your claim.
- Take photos to show the depth using a ruler or measuring device, and take photos of the locus; particularly if there are other defects nearby.
- Have a look on Google Street View to see if the defect has been there for a while. Their images are date stamped and we have used this to break a defence or two in the past!
We only represent victims for compensation claims and we have specific tactics to do all we can to make your claim successful. Don’t just instruct any old gung-ho lawyer as they could do more damage than good!
We offer 100% compensation and a full No Win, No Fee service so get in touch now and we will discuss the plan of action to give you the best chance at winning your claim!
