So, with summer apparently now here, Gavin and I thought we would head out and soak up the rays.
Unfortunately, whilst snow has long since melted, the sting in the “Beasts” tail appears to be that it has decimated what was left of the nation’s roads leaving stretches of highways that wouldn’t look out of place in war zone.
On our wander to the pub for dinner we thought we’d see how many potholes we’d have to avoid or bounce through. I personally gave up at the 2 mile point having reached 17. On the “bouncing” through potholes option, it was fair to say we’d have been better off on adventure style motorbikes rather our low slung, fully faired ZZR1400’s.
Nonetheless, a fun filled brisk 30 mile jaunt ensued and we pulled up for some grub at a pub. Inevitably the conversation turned to motorbikes and work. Gavin had just taken another new shout from a poor lady who had hit a pothole, lost control and stacked it into an oncoming car. Thankfully, she was here to tell the tale. As for her smashed up motorbike and broken leg, Gavin had told her to set her sights squarely on the local council if she wanted any chance of being compensated.
If you’re unfortunate enough to fall off your motorcycle after hitting a pothole, you’re going to have to prove the local authority responsible for that particular road breached their legal duty to maintain it as set down in law (S41 of the Highways Act 1980) and that this caused you to fall off. So, practically, how can you increase your chances of being successful?
Photograph the potholes
To use an old phrase “a picture speaks a thousand words.” Whilst you could stand up in court and describe to the Judge in great detail about the crater you fell into, some photographs will be way better. In this day and age nearly everyone has a smart phone. Get photos of the offending pothole as soon as you can i.e. do not leave it months in case it gets filled in. Make sure the photos are in context.
I would recommend taking some on your approach to the offending pothole, perhaps at 100m, 75m, 50m etc. So don’t just have loads zoomed in on the pothole itself not showing where it is. If you can, measure the width and depth with the tape measure in shot. Lastly, be safe. If you need to get photos don’t take any risks to get them i.e. wear Hi-Viz, don’t go on your own, don’t do it during rush hour etc.
Get witnesses if you fall off
So often when someone falls off their motorbike, their instinct is to get up, say they’re fine and try not to hold anyone else up. However, try and take a few minutes to gather your thoughts and if someone did witness the accident, get their details. You will likely need a statement off them later.
Get a Police report
If you’ve taken a tumble and the police do turn up, get a reference number from them and details of where they are based. The country has different police forces but if you know where the copper is from, know the accident location and have a reference number you can apply to the correct force for a police report if you need it. Whilst there is a fee for a police report, it may be money well spent if it has valuable evidence to help you win your case.
Disclosure
In my experience, just about every applicable local authority denies liability, at least initially, following a pothole accident. They will almost certainly say they had a suitable inspection and repair system in place and “… 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.” (S.58 of the Highways Act 1980). Whether this is true or not will depend on where the offending pothole was located.
If for example it on a busy ring road, they should have been inspecting the road regularly, say monthly; and fixing repairs where needed. If they can prove that, they will likely have a “Special Defence.” If they can’t you will likely win. Therefore, you need write and ask for a copy of their records. Once you have them you can make a decision as to whether they have a “Special Defence” or not.
In summary, if you’re unlucky enough to fall off on a pothole, expect a battle with the applicable authority. They will probably deny liability but don’t be deterred as people do take on “the state” and win. However, evidence is the key in winning your case so get organised and plan how you are going to tell your story to the Judge so they can understand how you fell off and why it is the applicable authorities fault.
Andrew ‘Chef’ Prendergast
On 2 Wheels July 2018
It’s not just about inspection: I had a case like this where the authority could show they were inspecting the road, but they systematically ignored flaws that the inspection revealed.