The presence of potholes in the road can be a serious danger to cyclists. It is this time of year that the appearance of new potholes is especially prevalent. The increasing amount of reports of poorly-maintained roads is alarming considering that potholes are a major factor in contributing to cyclist accidents. When an accident occurs and an individual needs legal advice, then it is crucial to use the services of a lawyer who specialises in cycling claims. Evidence surrounding the circumstances of the accident will be complex and focus on the positioning of the pothole in relation to the cyclist and any other road user involved. Without the guidance of a specialist lawyer in cycling claims, a Judge may not have sufficient appreciation of the nature and extent of damage potholes can cause in an accident and this could lead to a claim being unsuccessful.

A pothole is a type of defect in the road caused by a combination of two factors: water and traffic. The presence of water in the underlying soil structure results in the surface weakening and expanding. The thawing process after freezing weather conditions and frost can also lead to the surface weakening. The frequent traffic passing over the affected surface then causes it to break down, creating a hole which is then displaced by the force of vehicle wheels. In very cold weather potholes can develop rapidly.

Incidents involving potholes already account for an estimated 10 to 15% of all cycling accidents[1]. It is unfortunate that the Department for Transport in their figures for road casualties do not include a category for potholes, only having a category for “loss of control”, “swerving” or “sudden braking”. Current  figures suggest that of 13,000 reported cycling accidents, 1,110 fell within the above categories and this may significantly under represent the extent of cycling accidents.

The Department for Transport has however invested £30,000 in a pothole reporting app[2]. This innovative scheme has been designed to allow members of the public to report potholed roads to their councils which they hope will, in turn, reduce the amount accidents and the amount of compensation paid out. This development has helped prompt the government to introduce guidelines urging councils to plan extensive maintenance in advance, rather than simply patching and mending the road as potholes appear.

Local councils have a duty to maintain and repair roads and paths which are maintainable at  public expense. This will include most roads and some cycle paths. The duty requires that a road must be in such a good repair to render it reasonably passable for the ordinary traffic of the neighbourhood without causing a danger by its physical condition. Therefore local councils are under a duty to repair potholes which amount to a danger.

However, councils do not have a duty to know and fix every defect in the road and so if there is no prior knowledge of a pothole which has caused an accident, this can prevent a successful claim against the local council. Section 58 Highways Authority 1980 provides a defence to councils if it can be shown that they have taken necessary measures to ensure the highway was not dangerous for traffic. Most importantly, s.58(d) states that a council will only be liable where the 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.

The defence available for local councils highlights the importance of individuals reporting potholes to councils and making them aware of any dangerous pothole appearing on roads.

If you have been unfortunate enough to sustain injuries as a result of an accident caused by a pothole there are several steps you should take to maximise the changes of a successful claim.

Firstly, you should gather evidence of the pothole as soon as you hit it, if safe to do so. Evidence can include the dimensions of the hole, for example, the depth, position in the road, its relation to the kerb and the general location. Photos of the pothole should also be taken with a sense of scale using a tape measure or ruler if possible evidencing its dangerousness and position in the road. If, for example, the position of the pothole is near a blind corner or hidden from view, then this should also be evidenced to demonstrate it was not avoidable. Photographic evidence of the damage to the bicycle would also support your claim.

Other evidence could come from witnesses who perhaps work or live close to the pothole who can confirm when it first appeared and its deterioration or condition over time. The testimony of a witness will be especially useful if the pothole is repaired following the accident before the claim is heard before the courts. This will undermine a potential defence by the council that they had planned to repair the pothole but were unable to do so before the accident.

Secondly, the pothole should be reported to the relevant council or highways agency to ensure that its presence is noted to help protect other road users. This can be reported directly to the council or via a website such as the National Cycling Charity www.fillthathole.org.uk.

Thirdly, if your injuries require you to seek medical assistance then you should ensure you are seen by your local GP or a hospital. This is important for both your wellbeing and your claim as these records will evidence and confirm  your injuries.

Finally, councils are likely to deny liability for the cycling accident and so it would be prudent to submit a Freedom of Information Act application to the relevant council to obtain records on reported accidents resulting from potholes, when inspections have been made and what the result of these inspections were. How the inspections have been carried out, the frequency of inspections and the classification of the roads will all be important factors. This is because some inspections are carried out by an inspector driving the route rather than walking the route. The inspector may miss parts of the road which deteriorated  significantly in the period post-inspection. If any maintenance work has been carried out then this will be evidenced in the results and should be assessed in light of its adequacy in making the roads safer.

This evidence will help defeat any defence by the council under section 58 Highways Act 1980. The national code of good practice for highway maintenance will also give an indication as to whether the council has been compliant with its duty.

Despite councils in England and Wales compensating road users in the sum of £20million for damage caused by potholes, the road maintenance programmes still do not adequately protect cyclists. It is important that every accident is reported and when necessary, a claim is pursued by a specialist lawyer who can guide the court on the complexities of cycling and the danger potholes pose.