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Highways authority liability after accident

davmandavman Posts: 31
edited November 2010 in Campaign
Afternoon all
I'm hoping people on here may be able to offer some comments on the following;

In late January 2010, i hit a pothole on the way home from work. 10 minutes later i awoke to find myself being loaded into an ambulance and taken to Walsgrave Hospital in Coventry, where i spent the next week, due to a bleed on the brain, plus other sundry injuries. If i hadn't been wearing a helmet, things would have been a lot, lot worse, of that i'm sure.

Anyway i made a claim for liability through a solicitor to the Highways authority.

I received their response last week; they are denying liability based on a Section 58 Defence. They provided copy documentation that they inspected this particular section of the road i had the accident on in November 2009 and that some work was done to tidy the road up (where the accident was). My solicitor has advised that if i can provide a witness to state that the pothole that caused the crash was there in November and July 2009 (when the Authority did their routine inspection) and that it was missed, then we may be able to proceed. As you can probably guess i'm not in a position to provide a witness.

Having thought about the Highways Authority decision on it liability, i have a number of questions i need to raise with my solicitor before i advise her how i want to proceed. Some of these are around the fact we've just had a particularly bad winter (when i didn't ride for about a month due to the roads being too dangerous), other are around the fact that i sustained what i consider to be reasonably serious injuries etc etc.

I'm wondering whether the Highways Authority has done this as a bluff and they do in fact realise they are liable but are trying it on, to see if i stop my action. As well as the Ambulance, the Police were also at the scene (as i was in the middle of the road) and they phoned Highways to advise of the extent of the pothole. It was then filled in, although not very well as it's already degraded somewhat

Sorry for the long post, but i would appreciate any advise, experience or comments you may have. If you have any cases that i could look at, then i would be very grateful. I have already found a couple to pass to my solicitor

thanks in advance
Simon Hume

Posts

  • downfaderdownfader Posts: 3,686
    The only advice I can offer is to ask if any of the local cycle clubs or campaign groups have members who have ridden the road in the time frame you had your incident.

    Another possibility is to contact the local paper with a "human interest" story and put out an appeal there. Ask your solicitor if this is acceptable first though.

    I do feel that big companies, insurance companies or public bodies do sometimes seem to bluff, if what you read in the papers, online or hear from other cyclists is true. :? Surely the HA has to prove that the road was in fit state rather than just inspected. It can still deteriorate after their inspection dates. :?
  • sirmysirmy Posts: 67
    From the 1980 Highways Act:-

    58 Special defence in action against a highway authority for damages for non-repair of highway

    (1)In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority 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.

    (2)For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—

    (a)the character of the highway, and the traffic which was reasonably to be expected to use it;

    (b)the standard of maintenance appropriate for a highway of that character and used by such traffic;

    (c)the state of repair in which a reasonable person would have expected to find the highway;

    (d)whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

    (e)where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;

    but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

    (3)This section binds the Crown.

    F1(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    Annotations:
    Amendments (Textual)

    F1S. 58(4) repealed (1.1.1993) by New Roads and Street Works Act 1991 (c. 22), s. 168(2), Sch.9; S.I. 1992/2984, art. 2(2), Sch.2

    Section 2d would be the relevant clause for proving liability (probably). The Authority's defence would probably rest on their having a system of regular inspections - looks like the road was inspected 3 (?) times a year. Most authorities have a policy of only filling holes above a certain depth, in my area it's 40mm. Whilst this is fine for a car tyre to tun over it can be uncomfortable, if not dangerous, on a bike with narrow tyres. If the 2009 inspections found the pothole to be below the depth at which they would fill it then this would form part of their defence, and given the winter we've just had it would be difficult to prove that the hole was any deeper, regardless of the depth of the hole at the time of the accident.

    One possible line of enquiry would be to ask the authority if they had received any reports of potholes on that road in the weeks before your accident. If they had, and I would check if that info could be got under freedom of information requests, then section 2d would apply. You could also check the Fillthat hole website, most authorities seems to check it and if the road is listed on there it may help your case as it could count as means by which the authority should have been aware of the hole.

    I'm sure others can give you more info but good luck with your case
  • You could try looking on Street View to see if the pot hole is there. If it is Google should know when the picture was taken.
  • What about fill that hole, you can search their site & see if it was reported before you had your accident.
  • beverickbeverick Posts: 3,461
    You say it was an accident which suggests no liability on any behalf if you think about it.

    As a precedent a colleague of mine tried to claim damages from a local highways agency when he came off his motorbike having hit a pothole near his home. The outcome was that, although the council admitted that the road surface was defective, his damages were limited to a 'good-will' payment of, I seem to remember, £45 towards repair of the bike.

    The council's legal guys argued with some success that, as the damage had been there for some weeks before the incident, they could reasonably demostrate that a) he must have known about it and that b), having known about it, as a comptent motor cyclist he should have been able to avoid it.

    As a cyciist and road user I have some sympathy with their defence.

    nb, the council had to pay costs which was substantially more than £45.

    Bob
  • spen666spen666 Posts: 17,709
    beverick wrote:
    You say it was an accident which suggests no liability on any behalf if you think about it....


    I disagree- accident as opposed to "deliberate"

    Accident does not denote no liability. Liability is for things that are negligent as well as deliberate
    Want to know the Spen666 behind the posts?
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  • snailracersnailracer Posts: 968
    I wonder if authorities can be sued for dangerously censored bike lanes, like the 2-ft wide ones that run in the door zone next to parked cars?
  • What about fill that hole, you can search their site & see if it was reported before you had your accident.

    Although that is no guarantee that they will do the work...
    "... heard evidence that a pothole at the location had been reported to Wiltshire Council's Clarence hotline on March 2.

    But Peter Hanson, the divisional highways manager, said the pothole was not big enough to come within the priorities for immediate attention.

    The road had also had a safety inspection a week before Capt Allen's death but again highways officers did not consider the pothole serious enough to warrant immediate repair.

    However, the pothole was repaired within two days of the incident."
    http://www.gazetteandherald.co.uk/news/8316644.Burbage_army_man_s_pot_hole_death_was_accidental/
  • +1 to sirmy for the info.

    Woud agree with the freedom of information option as if other road users had complained or in fact if the council did have a resonable person attend then a report would have been written simply stating what the score with the pothole was.

    As many prior posts have shown it is a rather emotive issue. Plus highways agency are usually quite hard to pin down to admiting and eventually paying out in these types of cases. So your best bet would be to do some investigation yourself as believe it or not your solicitor may not want to (due to them knowing the odds of winning being 50/50 and therefore any investigation work done could be lost by them) With that info including any local reports from the CTC or fill that whole or even local bike clubs will put you in a stronger position.
    Pain hurts much less if its topped off with beating your mates to top of a climb.
  • dilemnadilemna Posts: 2,187
    Try a different solicitor as they should be advising you fully as to what you need to establish to win your case. Did you sign up with the first you found in the phone book or one specialising in cycling injuries? Hopefully you haven't used a claims company ........

    The local authority are just trying to make you give up by denying any liability. If you have a good case which may be likley then be persistent. They aren't just going to roll over and admit liability. They will be hoping you decide against or drop any claim you bring against them.

    Did you get pics of the state of the road and the hole that felled you?
    Life is like a roll of toilet paper; long and useful, but always ends at the wrong moment. Anon.
    Think how stupid the average person is.......
    half of them are even more stupid than you first thought.
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