Cycling Accidents Caused by PotholesMar 25, 2019
Miranda Walsh was riding her mountain bike on the Bay Horse roundabout in Huddersfield. As Ms Walsh negotiated the roundabout she felt a thud as her front wheel hit a pothole. This caused her to lose control of her bike and fall off sustaining a severe fracture to her right leg. Ms Walsh brought a claim against the Local Highway Authority. She alleged that her accident was caused by potholes, so was a breach of duty to maintain the highway pursuant to Section 41 of the Highways Act 1980. In order to be successful in a claim of this nature, Miss Walsh had to prove a number of principles which can be summarised as follows: –
(a) The highway was in such a condition that it was dangerous to traffic or pedestrians;
(b) The dangerous condition was created by the failure to maintain or repair the highway;
(c) The injury or damage resulted from the failure.
In some cases, there is a further hurdle to overcome and that is the Council may escape liability under Section 58. This can happen if they can show that they have carried out a reasonable inspection. In this case, the Section 58 Defence was not relevant because the Council did inspect the roundabout before and after the accident. Their case was that quite simply the pothole was not dangerous enough to warrant repair. They accordingly denied that there had been a breach of the Section 41 duty of care in the first place, suggesting the accident was not caused by the pothole.
What happened next?
Ms Walsh lost at trial because of the lack of evidence concerning the pothole. The Claimant had asked her friend to take photographs of the pothole a couple of weeks after the accident. The roundabout was busy and so the friend had to go back after dark and was unable to produce measurements of the pothole. Unfortunately, the photographs did not have any scale such as a ruler or anything to measure the size of the pothole by. The Judge concluded by saying there was “simply not enough reliable evidence of the dimensions or condition of the pothole for him to say that it was more likely or not that it presented a real source of danger to traffic”.
The case went to an appeal earlier this year, but the High Court Judge agreed with the Judge at trial and Ms Walsh’s case was dismissed. The case is a helpful reminder that the burden of proof is generally on the Claimant to prove a breach of duty in an accident claim. In the context of pothole cases accurate photographic evidence showing the dimensions of the pothole is invariably a vital prerequisite to pursue a claim.
Bear in mind
Cyclists should be aware of the fact that if an accident is reported to the Local Authority often the pothole will be temporarily filled as an emergency measure. This therefore makes it extremely difficult if not impossible to prove the extent of the pothole in the first place.