Ice and what happens if you fall

Ice and what happens if you fall

Is it ever worth going out on the road if there is a real risk of ice?

I am an all-year rider, heated grips, jacket and even heated seat on my bike, but I will not go out if there is a real risk of ice, and certainly not on my road bike. The ice treatment of roads in England and Wales (Scotland has entirely different rules) is not confidence inspiring and if you come off on ice you have very weak comeback against the Highways Authority.

The test is superficially in your favour. If you look at the relevant law which is contained within Section 41(l)(a) of the Highway’s Act 1980 the law reads that if you can prove you fell off on ice, the burden of proof reverses, and the Highway Authority has to prove it had a reasonable system of ice management, and bearing in mind that you have just slid off on ice, this must be really easy.

Of course their system was inadequate. Your sliding along the carriageway on your backside with your bike exploding in an expensive mess must be proof, if only. What this has come to mean in practice, with Judges having an eye on Council’s drastically reduced budgets is that you really have to show the road’s winter safety plan was so unreasonable it really cannot be justified.

I speak from some experience, having brought three of these cases and fought them hard; I won one on a technicality, and lost two. The Court in all three cases declared the Highway’s Authority’s winter safety plan was suitable, and it was actioned properly, but in the one I won, the Highway Authority could not prove the route was gritted because of bad record keeping, and I also had close to a perfect witness in my client, a beautifully understated police motorcycle instructor who as an ex-copper knew exactly how to give evidence.

So if there is ice on the road. It is damned difficult to get recompense for it, and even if the law, on paper, looks favourable, in practice it is not.

All is not lost though. If you do come off on ice you will more than likely struggle to find a solicitor to represent you, unless you pay as you go. Those with experience in ice claims are likely to give them a swerve on a no win no fee, those who are learning will find experience is a good teacher but the lessons are expensive. No win no fee has a mixed reputation but if a solicitor is not prepared to spend his/her time on your case you might want to think carefully before spending your money on it.

However, if you have a damage-only claim for a damaged bike and kit, my experience is that local authorities are more likely to pay up in the small claims court with an unrepresented litigant, whether for ice claims or potholes. The Courts have made it clear that if you go to court on your own, without a solicitor, you won’t be cut much slack, so you will need to comply on time with court orders.

Andrew Dalton

Bike Magazine February 2019

Disclaimer: The legal advice and statements contained within this/these articles is correct at the time of printing. If you are seeking legal advice after a motorbike accident please contact us to speak directly with one of our lawyers.

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Posted by Andrew Dalton. Last modified: December 17, 2018 at 4:01 pm

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.

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