Road defect crash - advice please - and warning!

laFlamme

In july 2010 one sunny morning whilst commuting I hit a road defect in Kensington Road London and sustained injuries. I was a member of British Cycling at the day (still am and has been for many years) so expected good legal support for claims against Royal Borough of Kensington and Chelsea.

However almost three years after the accident I have still not had any success in claiming compensation for injuries and damaged property! I have scars in my face reminding me everyday about this incident and I am honestly very frustrated at the non-constructive response I have had from British Cycling's appointed solicitors (Leigh Day) and the Council. Any advice would be appreciated!



Ok, here comes the story:

I was on a commuting ride from Teddington area to East London this beautiful morning and when I rode on a busy Kensington Road heading east, probably around 10 meters behind car in front I saw a manhole coming up but did not look so bad and as I had traffic around I went straight over it. It was actually so brutal that I lost the grip on the handlebars and front wheel took a jump and turned so I crashed heavily with face down in the tarmac.

Injuries probably looked quite bad as several helpful witnesses called an ambulance directly and assisted me to the side of the road. My face was bleeding a lot. Ambulance arrived quickly and away we went (they even took my lovely bike in the ambulance . In no time I was at the Chelsea and Westminster hospital getting sewed up properly. I was impressed by the quick treatment from the moment I hit the ground. Guess I'm quite lucky as it could have been much worse with busy traffic not to get hit by any cars.

I obviously missed an important meeting that day but I was surrounded and supported by clients and so many friendly people those days it was incredible.

First step was to report this defect to the Council so that no other cyclists would get hurt. Then as a member of British Cycling I called them and explained what happened so I got in contact with their Solicitors Leigh Day. Maybe this was a mistake and I should have gone directly to the Council claiming explanation and compensation for injuries and damages without starting this legal machine?

Anyhow, after providing the solicitors with photos of road defect and injuries, filled in forms etc etc the process had started. As it was quite obvious what caused the accident it should be quite straight forward I though… But not really.

It turned out that the council provided a list of road inspections that they do on a monthly basis and they did not find any defects on the actual road in May and June prior to the accident. This way the council will apparently escape liability (Section 58 Highways Act).

So in other words as they did not find any defects there was simply none existing. What is it I see on my photos taken just after the accident and even on the Google Maps Street View (I'd be interested to know exactly when Street View was updated prior to the incident)? Furthermore one witness cyclist stated he had seen this defect for some time thinking it should be repaired before someone would get hurt…

…And shortly after my accident the road defect was repaired! Why was it repaired if it did not exist? I am perplexed…

The response I got when I was posting these questions to the BC solicitor Leigh Day was that the Council's system of repair is reasonable and effective. And therefore I would not be successful in my case against the Council.


I was quite upset to say the least and wrote a letter directly to the council…

They now mentioned that the manhole road defect was BT's responsibility and the Council thought I should get in contact with them for a response. I then informed the solicitors about this in hope of a breakthrough. Recently got a response from them regarding the new BT route where they regret they believe there is nothing else they can do to improve my probability for a successful case against the Council. I asked if they actually got in contact with BT at all as I was quite hopeful prior to this, but no they had not!

What a waste of time and energy and the 3 years to commence court proceedings against the defendant is shortly running out.


Is something wrong here or is this what normally to expect from BC's appointed solicitors and the council?



I write this partly for advice from any other cyclists with similar experience and partly to warn for what could happen if you as a member of British Cycling hit a road defect in the Royal Borough of Kensington and Chelsea.



Ride safe,

thistle_

Have you been in contact with BT about it?

The manhole is BT's responsibility to maintain, but if the council spot it on one of their inspections they should tell BT to get it sorted.

If nobody has bothered to tell BT about it, they won't have been out to fix it.

Have you checked fillthathole to see if anybody had reported it before your crash?

pdw

As I understand it, the question is whether the defect was present at the time of their most recent inspection. If you can prove that it was, then you should be able to pursue it as the council clearly didn't do the inspection properly.

gbsahne001

going through the same issue here, council claiming that the defect was not present, even though street view shows the pothole dated 10 months before my accident.

I'd already tried to pursue it directly with the council; rejected, now pursuing it through legal means.

thistle_

gbsahne wrote:

I'd already tried to pursue it directly with the council; rejected, now pursuing it through legal means.

Have you followed up their rejection by err rejecting it?

I think councils will automatically reject anything they get because most people won't bother doing anything about it, but bear in mind that 9 months prior to your accident the pothole may have been repaired, 3 months prior it may have been inspected and was OK, and 1 months prior it may have appeared again (as pothole frequently do).

Here's what section 58 says:
http://www.legislation.gov.uk/ukpga/1980/66/section/58

Ask for a copy of their inspection report before the incident, and their inspection report from just after it. If their report says no defects and there blatantly were (e.g. streetview), then they haven't done their inspection properly.

laFlamme

thistle (MBNW) wrote:

Have you been in contact with BT about it?

The manhole is BT's responsibility to maintain, but if the council spot it on one of their inspections they should tell BT to get it sorted.

If nobody has bothered to tell BT about it, they won't have been out to fix it.

Have you checked fillthathole to see if anybody had reported it before your crash?

Yes, I have contacted BT directly and still awaiting response. Thanks for the fillthathole tip...

pdw wrote:

As I understand it, the question is whether the defect was present at the time of their most recent inspection. If you can prove that it was, then you should be able to pursue it as the council clearly didn't do the inspection properly.

I am investigating options on how to find out when the defect appeared. One witness stated it was there for some time before the accident...

laFlamme

Anyone else with similar experiences from road defect related accidents in this or other boroughs?

Is this what to expect from BC's legal support and from the council? I am working hard and have trouble finding extra time. Should I really need to run the show myself despite having legal support from BC?

Any advices most welcome please...

rolf_f

gbsahne wrote:

going through the same issue here, council claiming that the defect was not present, even though street view shows the pothole dated 10 months before my accident.

I'd already tried to pursue it directly with the council; rejected, now pursuing it through legal means.

I hit a pothole last year that bent both rims and probably slightly kinked the top tube (one of those things that is almost impossible to see so hard to be sure the pothole was to blame).

I checked streetview and the tarmac (around a manhole cover) was clearly in poor condition at least three years earlier. So on that basis I assumed that it hadn't been repaired for some considerable time - but I was wrong.

Shortly after reporting it, the pothole was filled in. In the last year it has deteriorated and been refilled on at least four occasions. Why they don't actually do a proper job once I don't know but the point is that the speed of deterioration is so rapid that councils probably can claim that the tarmac was OK when last inspected. Effectively, the inspection regime on paper sounds OK - you'd think that 6 months is frequent enough to pick up when a surface is going to become a problem before it does but obviously it isn't. I think my pothole took about 6 weeks from fixing to becoming something I'd want to avoid again.

fossyant

Leigh day have handled a case for me very efficiently.

Unfortunately if the council had carried out regular inspections then this is reasonable.

You'll need more evidence to the contrary to prove the road had been in a bad state for some time.

davis

I hit a pothole in 2011 and crashed badly. Broke my back, ribs and nose and smashed my face up quite well. Still got facial scars and daily pain (pretty much constant pain in winter).
Unless you can reasonably prove the people responsible for maintaining the road were e.g. negligent and the defect existed for a while I'm afraid I think your chances of legal "success" are limited. I had cover through CTC and whoever their appointed solicitors were at the time.

If it wasn't deliberate, then it was an accident, and is feasibly no-one's fault. Accept it as best you can, and move on. Sometimes bad stuff happens to good folk.

laFlamme

I do not buy the argument that if the council carry out regular inspections they are not to blame. Who is responsible for the roads to be safe to use? The Council or the users?

If you travel with a train or aircraft service and there is a defect that causes the train to de-rail (despite regular service and inspection intervals). Who is responsible for injuries caused? Service provider or passengers?

Unless you sign a contract that waives the responsibility of the service provider it clearly must be theirs. Or am I missing something?



Who decided that monthly or bi-monthly inspections would be sufficient if reality is, as some people claim, a road defect can appear within a few days?

And those guys that carry out the inspections are 100% flawless?

Maybe one would need to do research about individual council's policies and maintenance schemes - and re-plan routes accordingly…



Of course regular road surface inspections might decrease the risk of accidents but will never eliminate it. The fact is there was a road defect that caused my injuries. And the defect was seen by one witness (cyclist) long before the accident.


And I am sorry to hear there are other cyclists with similar experience and sad to hear the acceptance…

davis

laFlamme wrote:

I do not buy the argument that if the council carry out regular inspections they are not to blame. Who is responsible for the roads to be safe to use? The Council or the users?

Yes, it's the council's responsibility to take "reasonable care" (the particular section is Section 58 of the Highways Act), but would you reasonably hold the council responsible if a fault developed the very day you encountered it? If you were in their position, how would you schedule the inspection of the roads if it was your responsibility? How would you pay for that schedule?

laFlamme wrote:

Who decided that monthly or bi-monthly inspections would be sufficient if reality is, as some people claim, a road defect can appear within a few days?

I'd imagine the council decide the schedule of inspections, based on the general consensus of "reasonable care" among highway engineers, cut down by budget constraints! And, yes, defects really can develop very quickly: think of the abuse that a 40 tonne truck can give to the road!

And the defect was seen by one witness (cyclist) long before the accident.

Was the fault reported? If it was, then I would be genuinely livid in your position. If not, then, well, how can one expect the council to know about things they don't know about? It's one very, very good reason for using FillThatHole, FixMyStreet, et al.

And I am sorry to hear there are other cyclists with similar experience and sad to hear the acceptance…

Meh. Full story here.

supersonic

I saw a manhole coming up but did not look so bad

I always try and avoid them. They are never going to be as smooth to ride over as the normal road, can hide other defects (as in this case) and get bloody slippy too.

I am not sure whether the fact you saw it, but decided to ride over it anyway will have an impact on any claim.

roger_merriman

laFlamme wrote:

I do not buy the argument that if the council carry out regular inspections they are not to blame. Who is responsible for the roads to be safe to use? The Council or the users?

The other thing to note is what is what is safe to use differs among road users, even with bikes there is a fair difference, even a high speed all a pothole does on the MTB is make a woomph noise as tyres and suspension soak up with ease, what are to it minor deviations, on the roadie hitting these at any speed would be at best unwise.

realistically if we want better road surfaces we have to pay for it.

rolf_f

laFlamme wrote:

Who decided that monthly or bi-monthly inspections would be sufficient if reality is, as some people claim, a road defect can appear within a few days?

You can have inspections every day if you like - as long as you can convince the electorate that their council taxes should rocket upwards to pay for it. You'll probably get a good response from anyone who has hurt themselves because of a pothole and no enthusiasm from the vast majority who haven't.

Everything is a compromise. Every time there is a train crash and a cause is identified, the angry start shouting "you can't put a price on a human life" - this is one of the most uninformed things anyone can say. Not only can you put a price on a human life, you have to put a price on a human life - the world can't function any other way. And that price isn't very high irrc. I think for roads it is about £200,000 (my memory is wildly inaccurate so this figure might be wildly inaccurate too but the principle sticks!). ie if, say, installing a footbridge over a road would save one life but cost £400,000 to construct, then it won't get built. If that bothers you, go and live somewhere safer......

philwi

laFlamme wrote:

Anyone else with similar experiences from road defect related accidents in this or other boroughs?

Well yes, although mine was some years ago. In my case it was a trench dug across the road and badly filled in, and totally invisible at night even with legal lights, which is when I hit it at 20mph. I landed face down, and took a fractured skull (at this time no one wore helmets, although I bought a US import shortly after this). My teeth were trashed, and fixing them cost over £20,000.

My mates photographed the site, and local residents were happy to confirm that they'd been picking cyclists out of the trench all day, and that they'd told the council about it. If I am ever in that situation, I will block the road with my car to save your teeth and head.

In short I had them bang to rights, and they paid up after a brief threat from me to "issue proceedings" and discuss it in the county court. With me eating my lunch through a straw and spitting blood. They paid a fraction of the actual long-term cost of my dental care, but luckily the skull fracture seems to have had no long term consequences. The bad news is that the people who paid were the insurer of the contractors working on behalf of the council, so the morons who did that to me didn't suffer in the least.

My stuff was a while ago so the situation may have changed - I would take legal advice, but I've never much been impressed by the "free legal services" offered by insurers and others, they seem to prefer a quiet life to justice.

The "cost" argument makes no sense to me - no one's getting a discount in exchange for bad road repairs, in fact it costs (the contractors, or us the tax payer) more to break people's faces than to do the job right. That's kind of the point - no one can give me my teeth back, or remove the memory of the pain, but they can stop hurting people in the future.

As far as inspections are concerned... if they inspected it the morning you hit it, then their inspection was clearly defective. Are they clear that cyclists are more vulnerable (and that they therefore have a greater duty of care to us)? If they inspected it earlier, then assuming it's a repair, why did they not see it was developing into something dangerous? If they repaired it after it took you out, that's good, but why repair it at all if it passed inspection?