I slid off on an unclassified road – can I claim from the council?

I slid off on an unclassified road – can I claim from the council?

I was riding my trusty old Blackbird in one of England’s National Parks. I went for a bit of an explore and found myself riding on some very basic and beaten-up unclassified roads. I wasn’t overly concerned – I had ridden trials as a young man, albeit a while ago.

Anyway, as I passed into an area of shade and started braking for a corner, my bike shot out from underneath me. I picked myself up, feeling a bit battered and realised the road surface was largely moss and it had shredded under the gentle braking. I was not tearing around – I won’t see 70 again and I was bimbling and was left with some nasty bruises, made worse by some medication I am on.

I sent the local council the repair bill and said that if they paid for the bike, I would not claim for the injury. I got a computer-generated letter back telling me about various cases but in the end, was politely told to get lost.

A few local solicitors have said I may have a case but they want between £250 and £1000 to ‘research’ the law for me. Forgive me, but I thought you solicitors were supposed to know the law, so I am not keen on paying up to £1000 to be told yes or no. Can you give me a yes or no?

Answer

I can and you will not like the answer; it is a no. Your case is this: The highway authority is obliged to keep the roads reasonably safe for all types of traffic that might use them, including you on your motorbike.

So far, not controversial – that has been established law for many years. The problem is that the duty has been restricted to “maintaining the fabric of the road” following the seminal case of Goodes V East Sussex County Council [2000] which is one of the cases referred to in the letter that you got back from the Council.

The duty of the highway authority is to repair and keep in repair the highway, but the duty does not include one to remove surface-lying materials, whether or not they are dangerous.

If what is on the highway forms or formed part of the highway, for example gravel that has been given up by the road as the bitumen breaks down, that will form part of the fabric of the highway. However, moss never formed part of the fabric of the highway. It simply sat on top of the highway, and as a matter of what was then the House of Lords and is now the Supreme Court, its Judgment in Goodes v East Sussex binds every court in the land, and it will not change.

Exactly the same point involving moss, admittedly on the pavement rather than on the highway, was considered in an appeal decision at the High Court. Here, an elderly gentleman slipped on moss and while the Senior County Court Judge who gave the first decision in favour of the injured disabled slipper, the High Court allowed the appeal in unusually strong terms, describing the decision of the earlier circuit judge as “absurd”. The High Court decision binds all lower courts and, as your case is going to be a small claim in the county court, as a matter of law you will lose your case.

If you commence it in the Small Claims Court, the local authority may make a payment of a few thousand pounds to reflect the costs that they would otherwise lose in defending the case but I certainly would not be spending any money on a Solicitor to tell you what the law is. This is not an area of law which the average high-street Solicitor will ever some across in their practice. If they do not know the answer off the top of their heads, they are going to have to spend a good few hours going through the law and understanding the principles. They do not have to work for nothing to answer your question. However, I do know the answer off the top of my head and unfortunately, it is an answer I suspect you are not going to particularly like.

Andrew Dalton

RiDE September 2020

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Posted by Andrew Dalton. Last modified: September 14, 2020 at 11:11 am

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.
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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Andrew Dalton
Andrew Dalton
1 month ago

That was an interesting set of reactions. The Highway does have a duty to have a system to anticipate and clear snow and ice – the law was changed by Parliament after Goodes, but the burden is for them to show a reasonable, not a fool proof system.
I take a moral mid point. If you are riding down some god forsaken unclassified road, expect it to be rough. The law recognises that point. On a fast A road, then a 5cm deep hole is unexpected and byu the time you have seen it at 60mph there is not much you can do about it but the vast majority of pothole and road surface claims we deal with are from low speed incidents, because a low speed bike is less stable. David, my son had his first off about 3 years ago, racing into college, late on knobbly tyres. He had a sore shoulder for a couple of weeks but he learnt his lesson. There is much to be said for having a few offs in your early days.

Steve
Steve
1 month ago

Firstly, I do like reading the advice you guys give, and the underlying knowledge you have for the law that you freely share.
Thank you.

Secondly, I am saddened to hear of your accident and injuries and hope you weren’t suffering for long.

Now for the uncomfortable bit:

I do dislike this “new” attitude of us Brits. You chose to take your bike to that place to ride and found out it had a suprise or two for you. Frustraiting and painful lesson, yes, but why should every tax payer be held to account (either through forced maintenance of less used areas, or directly through paying for repairs to eveyone’s property when they have an accident. Or, for that matter increased insurance premiums). I wish we could (in may more situations) just chalk it up to experience and take the hit for our choices.

Grrrr (rant over and apologies for it).

Iain
Iain
Reply to  Steve
1 month ago

Hi I get what your saying an agree 100% but if you fall off your bike due to bad road no matter what it is if the council dont keep the roads clear then it’s there fault.
My point I fell off my bike years ago due to the roads not been gritted it was 730am on a main A road . The roads not been cleared or gritted . .
If it’s a public road there should responsible. We pay enough road tax and council tax ..

Iain
Iain
1 month ago

The duty of the highway authority is to repair and keep in repair the highway, but the duty does not include one to remove surface-lying materials, whether or not they are dangerous.

Then why do the councils pay/spend a fortune clearing SNOW of the road and if they dont you have a accident you can claim . What the difference
If the road is not up to safety/standard then it’s the councils fault they get enough cash off us to maintain the roads .

David
David
1 month ago

Interesting. Understanding that accidents do happen, I am struck by a parallel. My son, after his 4th or 5th accident again asked me to collect him and his scooter, with a trailer. On this particular occasion, it was due to an slippery manhole cover. He described this as “unavoidable”. When challenged on the point, he further insisted there was nothing he could have done to prevent himself falling off. I asked if he will take the same route next day, to which the answer was affirmative. “Will you require the trailer again?” – NO came the rather hostile reply … BUT, how will you avoid falling off tomorrow if it is unavoidable? Followed the natural enquiry …
Bimbling or not, aged or youthful, Rossi or ‘tit’. PLEASE stop blaming others for inadequate anticipation!!!

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Gavin Grewal, used to volunteer his time as a special constable which gave him a good insight into how evidence is gathered from accident scenes. Gavin is partner at specialist motorcycle solicitors White Dalton.

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