I am a bit peed off. It has been a terrible winter and I managed to get my bike out for a quick ride on a sunny Sunday. It was cold but bright. I was riding home when I hit a pothole and buckled my rear wheel. It is damaged beyond repair and I need a replacement wheel at the cost of £200.
I wrote to the local authority asking for compensation and it told me to go away. Apparently, it has a defence to pothole claims?
Answer
The last cold snap in March 2023 caused more havoc to our already badly deteriorated roads. I can tell you the local authority is responsible for the upkeep of public roads.
If you hit a dangerous pothole and suffer damage, the starting point is that you have a claim against it under S.41 of the Highways Act 1980.
It is not surprising that it told you to ‘go away’, as this appears to be a default response to all claims. I have been in law since 2006. I have never, in my professional career, had a local authority admit blame or offer to pay out without court proceedings being issued. Their ‘defence’ is under S.58 of the same act, but the authority telling you it has a defence is very different from actually having a defence!
The purpose of S.58 is to let the local authority off the hook if it could not have been aware of the defect. It would need to prove this in court, and it is usually done by asking its Highway Inspector to give evidence. They are a person who will spend all of their time inspecting roads and finding defects. I don’t think having eyesight is a prerequisite for this job.
Put simply, if the defect was present at the time of inspection and not acted upon, you will likely win your claim. If the defect appeared between the inspection dates, you may lose. You can sometimes ‘attack’ the inspection regime, but this gets complicated.
The last biker I gave advice to on a similar claim issued court proceedings. As soon as the local authority got the claim form, it sent him a cheque for the buckled wheel and court issue fee.
Any claim for less than £10,000 is known as a ‘small claim’, and lawyers’ costs are unrecoverable. Therefore, it is really quite unattractive for the local authority to defend it to trial, as this will cost lawyers’ fees which it won’t get back. These may be a few thousand pounds, so it is cheaper for it to just pay £200 to ‘get rid’ of the claim.
I can see why they reject almost every claim as most people just accept what happened and move on.
The local authority is not responsible for surfacing laying material other than snow or ice, so if you hit diesel or gravel and so on, my advice would be different.
Don’t give up as I think they are pulling your plonker.
Gavin Grewal
Fast Bikes May 2023
