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Over the bars - advice, please

LittlePlumsLittlePlums Posts: 139
edited February 2013 in Road general
My usual route home - a nice safe cycle path - was closed yesterday for repairs due to a pothole appearing over the Christmas period so I was forced to go another route (you'll see the irony in this later). Faced with a busy A road, or a quiet but unlit country lane, I chose the latter. I've got good lights and the moon was pretty full. I was pootling along at a reasonable lick - nothing excessive - when my bike stopped, oh so suddenly, due to an enormous pot hole. I however continued my journey until I hit the tarmac in front of my bike. I lay on the road for some time as I couldn't figure out what had just happened. Although concussed, I managed to stagger to my feet only to almost fall over my bike - something was clearly not right.

Anyway, to cut a long story short, phoned for help and left my bike (which apart from a brake handle pointing in the wrong direction seems OK) at a nearby house - poor old fella must have thought a zombie had come to get him due to the road rash on my face. Went to hospital, X-rayed and all checked out OK, but kept repeating myself a lot, but improved enough for them to let me go several hours later. I was told not to drive for 48 hours and best to not work for the same period.

I went back today to inspect the hole I fell down in the light today and it is 5 inches deep and a metre across. It was filled with water and looked like any other puddle. We had a fair amount of rain yesterday and water was streaming across the road in a lot of places. I have taken photos alongside a tape measure to show scale.

Now, this is a lot of background for what is a pretty straightforward question: Have any of you had any success in getting compensation from a council for accidents like this?

I'm not a litigious sort, but this has shaken me, as I was doing what I have done many, many times before. I'm not after much, but I'm a self-employed contractor, so will lose 2 days' pay, I need a new lid and my clothes are ripped, plus minor repairs to the bike. I'm guessing including the loss of earnings, it'll be about £800 I'll be out of pocket. That is without any personal injury claim.

I spoke to a local this morning who said that the pot hole had been there since the floods in November. They said it had been reported by phone but the council told them they wouldn't do anything because it was a lane and it has just got worse with the recent rain. I've reported the pot hole directly to the council and on Fill That Hole, but Devon County Council don't have the greatest record on there (109th).

Second question is whether to complete the council's questionnaire and deal with it directly, or to go with one of the no win, no fee solicitors that advertise on TV. Personally I've always had a bit of an aversion to ambulance chasers but right now I'm feeling very vulnerable, which is not like me at all.

The one thing it has taught me is the value of a helmet, as I don't think it is an exaggeration to say that it could well have saved my life last night. You'd have to be an idiot to ride without one.

I'd be interested to hear other people's experience with this sort of thing.
Pride and joy: Bianchi Sempre
Commuting hack: Cube Nature

Posts

  • rolf_frolf_f Posts: 15,959
    Look at the council website and find out what it's policy is - and therefore if it has stuck to it. The frequency of checks is dependant on the busyness of the road. I hit a pothole last year and wrote off two wheelrims. This was on a busily used road. I reported the pothole on an online page and the council filled it 4 days later (which is within the required limits) - so on that basis I didn't complain. That said, they did a censored job of it - it was refilled another 3 times during 2012 but it does show they are doing their job as required - if not very well or efficiently.

    In terms of your circumstance - it was on a lane so the checking requirements are probably once or twice a year at the very most - and that doesn't mean they'll necessarily be fixed. Check if it has been reported on an online forum but bear in mind that it is a minor lane. Do you want all your local taxes spending on filling and refilling holes in country lanes as soon as they appear? And you should assume that any puddle in a road you don't know might have a pothole in it. I go round them if I don't know them - even on main roads.

    Worth a shot but I'd be surprised if you get any luck.
    Faster than a tent.......
  • vorticevortice Posts: 244
    I trashed my alloy on my car a few years ago after hitting a water filled pothole. The council admitted liability in failing to maintain the road properly and paid up. Quite a while ago now so I can't remember all the details but they do have a responsibility to maintain the roads to a decent standard.
  • farrinafarrina Posts: 360
    My immediate thoughts - have no experience directly but ...

    Get a photograph as soon as possible, preferable with some form of scale alongside it (ruler or the likes to show size/depth) also take a photograph of where it is generally (ie to generally orientate it). Be quick about this as council may fill it in rapidly if they get wind of any litigation.

    Secondly the bod who reported the matter to the council is key. Get his details

    As I understand the situation (no guarantee I am correct) a council can avoid liability if they can prove they regularly inspect roads for defects ie their defence essentially being it appeared after they last inspected the road. However if they have been specifically advised of the defect and done nothing about it they will be on a weaker footing.

    I would suggest you seek legal advice as soon as possible. If you are a member of the CTC or BCF they may be able to assist. Cycling weekly carries the phone numbers of solicitor specialising in this sort of stuff.

    Most urgent thing is photograph and document hole!!

    Regards

    Alan
    Regards
    Alan
  • CamusCamus Posts: 189
    I hope you get some compensation for what sounds like a nasty spill but my immediate, and admittedly cynical, response to your situation is was the lane you chose lighted? If not, the council will say you went down there at your own risk, and if it was, they will say you should have been more observant and taken better care. I completely agree with posts saying it is their responsibility to maintain the local roads though. With this argument though I can see them using the standing water, that you say obscured the fact this was a death trap pothole, as a defense.
  • You should be able to ride on a local authority managed road in safety. By your account the road wasn't safe for cyclists. I think you will have a very good case. A couple of years ago, someone tripped on a slightly raised paving stone in our business car park. He claimed all sorts, £2000 in the end, and had a no win no fee legal team behind him and our insurers settled without contesting. They explained it really wasn't worth the potential expense of court hearings. We hadn't been aware of the raised slab but ignorance is no defence. I think our car park was safer to walk across than your lane was to ride down.

    Good luck with it
  • I have photographed the hole with a tape measure alongside.

    I have also had a look on the Devon County Council website and found their published maintenance schedules.

    A lot of it depends upon the classification of the road. This particular lane provides access to 4 properties and therefore could be classified as a Category 9 which is defined as "Local roads serving a few properties". Alternatively it could be classified as a Category 11, which is defined as "Serving fields only or duplicated by other routes". I only say the latter as the road runs parallel to a main road, however, without the lane there would be no access to the properties, which include a farm and a bed and breakfast (i.e. 2 businesses) and 2 residential properties.

    If it is a Cat 9, then their own published schedule requires Annual inspection, but no inspection if it is a Cat 11.

    The Devon CC site states "We aim to repair large potholes on major roads, well-used pavements and cycle ways within one working day. Potholes on minor routes are targeted for repair within seven working days".

    If the person I spoke to has reported it some time ago AND it is a Category 9 road, then I may have a case. If only 1 or neither apply, I would struggle to make anything stick. Ironically the Cycle Path is subject to more stringent maintenance routines than a public highway.

    Incidentally, it would also be a danger to most road users. When my sister took me back there to photograph the scene (I'm not allowed to drive due to the concussion) she struggled to get her front wheel out of it. Because it is a country lane, there are no drainage gulleys, so the road would be impassable after any amount of rain, if I were to follow the advice not to go through water. Just to clarify, the water was streaming (i.e. moving) across the road over the camber and the fact there was a dirty great pothole underneath was indiscernible from any other section of the road where water was crossing it.

    I am a British Cycling member (Ride), so will canvass the opinion of the legal advice team there.
    Pride and joy: Bianchi Sempre
    Commuting hack: Cube Nature
  • diydiy Posts: 6,680
    Talk to the legal team you can get access to via your insurance - sounds like you have a claim for you personal injury and your damages.

    Go easy on any training for a while, best not to raise your pulse too much for a week or 2
  • NITR8sNITR8s Posts: 688
    Under the Highways Act 1980 (i think, dont quote me tho) the council has an implied duty to maintain the public highway, failure to do so would be a breach of duty of care. Bottom line easy peasy case for a personal injury solicitor.
  • nferrarnferrar Posts: 2,511
    I'd probably contact a no win no fee place, if they're interested at least you know you have a good case - I've read previous stuff like this though and even when councils have paid out it's taken years.
  • Hi there, sorry to hear about your accident. I read your post and wondered if I could offer any advice/guidance. I am cyclist but also a solicitor specialising in cycling claims and have come across the situation you have described many times previously.

    The short answer is, yes, potentially you may have a valid claim here.

    There are a number of factors to consider in whether any claim would succeed. Firstly, you would need to establish that the pothole itself was "dangerous" in a legal sense and as such is a pothole that the council should repair. Typically the "intervention level" on public highways is considered to be in the region of about 40 millimetres. Therefore a pothole one metre wide and five inches deep would, in my experience, be considered "dangerous".

    A local authority can have a defence to a claim however if they can establish that they had in place a "reasonable system of inspection and repair". The reasoning behind this is that no local authority can inspect all of their roads constantly. If they can prove that they are periodically inspecting the roads and repairing "dangerous" defects as and when required then they may have a full defence to any claim.

    Rolf F correctly highlights that the frequency of these inspections is dependent upon how busy the road is. You described that this was a quiet country road therefore I imagine that the period of inspection would typically be every 6 to 12 months (although this is of course a guess based upon the information you have given and would need to be investigated further). Also, although the pothole may have been present when they last inspected if it was not "dangerous" then technically the council would not be responsible for repairing it.

    You mentioned that you dropped your bike off at a house close to the accident scene. It may be worth, when you collect your bike, speaking with the house owner to see if they know how long the pothole has been present and if they would be prepared to give a statement to any solicitor who you may appoint confirming this.

    The truth is that these claims can be very difficult. Personally I am finding that in the current economic climate Judges are even more reluctant to award compensation (which will come directly from the local council) to victims of accidents such as this when most local authorities in the country are themselves struggling. I do not necessarily agree that this is correct, however, this is the situation I am personally finding as a solicitor.

    I think it is probably worth speaking with a solicitor to consider this further. Please feel free to personal message me if you would like to discuss it further with myself. I am of course assuming that your injuries would warrant the minimum amount of compensation (£1,000).

    It would be helpful if, before speaking with any solicitor, you make sure you have full photographs showing the measurements (I think from your post you have already done this).

    Adding a second question, as to whether you should continue making investigations with the council directly, I would probably withhold from doing this until you have spoken with a solicitor just to make sure that you don't put anything to the council which may prejudice a potential future claim. I would only continue your investigations with the council directly if you speak with a few solicitors and none of them are able to act for you.

    I hope this helps and I hope you get it sorted out soon.

    James.
  • diydiy Posts: 6,680
    James is the above wise? Surely given your declaration this discussion is best had entirely in private.
  • smidsysmidsy Posts: 5,273
    To put what the solicitor said in a few sentences.

    For a civil case you need to prove 3 things:
    1. Was a duty of care owed?
    2. Was there a breach of that duty of care?
    3. Did that breach result in the loss (e.g. injury and bike damage).

    If you get a yes to all 3 then you win. Simples!!!
    Yellow is the new Black.
  • James I would be interested in picking this up with you and will PM you next week.

    I have spoken with the Highways department and established that the road is Category 9 and therefore the published inspection routine is annually. They could not give me an immediate answer as to when the road was last inspected, nor whether or not any problems had been reported. I will revisit the local farm and see if I can get further details of when they reported the hole first occurring. From the sound of it, this was some time ago and well outside the Council's published response for repair times.

    Thanks everyone for your input.

    Go safe out there - too many stories of spills occurring.
    Pride and joy: Bianchi Sempre
    Commuting hack: Cube Nature
  • birdie23birdie23 Posts: 457
    Sorry to here about your accident. I've had a similar accident on Friday.

    Was doing 20+mph along a country road, saw a puddle that extended a way into the road and as I got close realised it was a deep pothole. Tried to swerve but didn't really stand a chance and was thrown over the handlebars, bike tumbling behind me. I reported the pothole and it was marked to be repaired urgently yesterday. I have no way of really checking this as I don't drive and my bike is out of action until the insurers look at it as it is a carbon frame (plus the front tyre is completely shot). Thankfully I walked away with just some road rash and slight whiplash.

    My insurers are confident that if the damage to my bike is under my excess value that they'll be able to help reclaim money from the council to replace the shot tyres.
    2012 Cube Agree GTC
  • Really sorry to hear about accident - a real pain in more ways than one. I don't want to appear unsympathetic, but, just why OP and second accident victim would ride into puddles at all, let alone at any speed, I fail to understand. Must be living in the country - every road around here has either potholes everywhere or road surface falling away at the edges - makes you paranoid about riding anywhere you cannot see is safe.
    On a slightly different note, we have drivers around here who are so good, and exempt from the laws of physics, that they drive straight into flood water at full speed. Interesting how much steam is produced from a given volume of water - even better is the sudden appearance of an oily sheen on the water - Oh! Er! where did that come from??
    Had something similar the other day - stopped at some interesting floods as a car approached flat out, spectacular wave, followed by total silence. Spoke to the householder next to flood, on high ground, to ask if we could take bikes through garden - always go for the easy option!!
  • birdie23birdie23 Posts: 457
    If I wasn't willing to ride through puddles I wouldn't get to ride!

    Like I said once you got within 5m you could see it was more sinister but by then it was too late.
    2012 Cube Agree GTC
  • Likewise, I was sticking to the centre of the lane to avoid puddles either side. Water was moving across the lane disguising the fact that below what was seemingly water flowing downhill across the camber, was in fact 5" of standing water with a gravel bottom.

    Work and my wife would soon get pretty fed up if I told them I couldn't get to them because the roads were wet. As I said, the council had closed my usual commute, a cycle path, to repair a pot hole that appeared over a month ago (in itself outside of the published maintenance schedules).
    Pride and joy: Bianchi Sempre
    Commuting hack: Cube Nature
  • farrinafarrina Posts: 360
    birdie23 wrote:

    Was doing 20+mph along a country road, saw a puddle that extended a way into the road and as I got close realised it was a deep pothole. Tried to swerve but didn't really stand a chance.

    A possible technique of last resort to avoid such a situation is to bunny hop over the defect (obviously you need to be strapped to the pedals for such) but it has saved me in the past with defective cattle grids and similar.

    Regards

    Alan
    Regards
    Alan
  • diydiy Posts: 6,680
    The thing that catches you out is a good quality road, with a surprise pothole, rather than one where you are struggling to pick your way through the pot holes and find the tarmac.
  • cougiecougie Posts: 22,512
    Phil - how exactly do you ride if you won't go through a puddle ?

    If I've a choice I'll avoid them - but a lot of the time there is no choice. Especially if they ate the width of the road. Some you do need to slow for - but you can't do that for every bit of water.
  • birdie23birdie23 Posts: 457
    diy wrote:
    The thing that catches you out is a good quality road, with a surprise pothole, rather than one where you are struggling to pick your way through the pot holes and find the tarmac.

    Exactly how I was caught out, was on one of the better roads around where I ride - got complacent and paid for it!
    2012 Cube Agree GTC
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