The fall resulted in my bike sliding down the road and I sustained an injury that left my arm in plaster for eight weeks. Once I stopped sliding, and got to my feet, I realised that there was a sheet of mud on the carriageway, which was coming out of a small building site. There were tracks coming out of the building site, showing a clay and mud mix that had handily formed a Y shape going into and out of the building site. Whilst waiting for the ambulance I took photos on my iPhone and a mate returned the next day and took some more photos with his camera.

My insurance company appointed Solicitors have received a rejection letter from the Council, who should have kept the road clean, because the Council are apparently not responsible for ‘transitory material not forming the fabric of the highway’ whatever that might mean. My Solicitors have now told me it is just bad luck and bang goes my no claims bonus.

Luckily, I could do my job with my arm in plaster but I have had to pay a small fortune in taxi fares to get into work, it does not seem right to me that I pay my taxes and expect the roads to be kept clean. When my Solicitors first wrote they sent a very aggressive letter to the Council talking about the Council’s duty to keep the roads safe for traffic which might reasonably be expected to pass along it and that certainly includes motorbikes in my part of south east England.

Do I just have to take this one on the chin or can I claim for damages?

Name withheld

Unfortunately your Solicitors have got the law I fundamentally wrong. The Local Authority are correct. They are liable for the ‘fabric of the road’, that Is the material which they have actually built and they have to maintain that. They are not responsible for the layout of the road, in all but the most extreme of circumstances, nor are they responsible for anything which sits on top of it, if it is of a fleeting or ‘transitory’ nature.

However, you do have a case, and your starting point is to find out who the owner of the land and Is who Is doing the building work. Luckily your photographs show the yellow ‘planning permission’ signs still around the building works, so your Local Authority will be able to tell you who applied for planning permission that will give you a pretty good clue as to who is in control of the job.

Where a person allows material to escape on to the highway which could cause harm, they are liable. This has been established law since before the Second world war, (the original law goes back to the days of the Crusades, so Its hardly new) and your claim should be brought in nuisance against the controllers of the building site, or whoever has appointed them. Unfortunately, your ‘Solicitor’ honestly describes herself as ‘a junior paralegal’ and has clearly never heard of this concept of law. I have to say I am quite impressed she actually knew enough about Highway’s law to know about the Highways Act and Section 41 duty, albeit she has applied it wrongly here.

You have a sound legal case, and your photographic evidence is clear that there was a significant amount of mud on the carriageway and, moreover, you can see exactly where your bike has slid, and cleared its own little path through the mud on the carriageway. If your claim is directed to the builders or the land owner, I anticipate you will achieve a swift settlement, albeit perhaps not with your current Solicitors. It is usually a worrying sign when you have to write into a magazine to direct your own solicitors to what the law actually is..

Andrew Dalton

December 2015