What to do if you hit a pothole

First published in London Cyclist, February/March 2007.

Many crashes are caused by the condition of the road surface. Solicitor and LCC member, Mark Bowman, advises on what to do if this happens to you.

If you crash because of a pothole or other defect in the road surface, there are things that you should do.

Reporting a crash

1. Note the exact location. Be as precise as you can by ensuring you have the road name and the number of the building it happened outside and by making reference to landmarks, e.g. ‘opposite Post Office’.
2. Immediately take photos of the cause of the crash and the surrounding area. Measure the size and depth of the pothole. If you don’t have a ruler, use an item such as a credit card to show the rough size. If you do not have a camera on you, return to the scene of the accident as soon as you can to take photos.
3. Look for signs warning about the pothole or markings on the road (for example white chalk marks or red or yellow paint around the pothole) signifying that the local authority or other responsible body is aware of the existence of the pothole. Take photos of any markings.
4. Take down the details (name, address and phone number) of anyone who saw it happen.
5. Note any damage done to your bike, your clothing/helmet/possessions and yourself. See a doctor if you are in pain. Be aware the medical symptoms do not always present themselves immediately, so you should seek specialist advice even if you do not fee you have hurt yourself.
6. Contact a solicitor who specialises in crashes involving potholes. Whatever you do, do not report the crash to the authority until the above steps (especially step 2) have been taken. Once you report the crash to the responsible body, it will understandably be keen to repair the pothole and eliminate any evidence you might have.

Bringing a Claim

Being involved in a crash involving a pothole does not guarantee you can successfully pursue a claim for personal injury. As a matter of policy, the Courts have decided it would be unreasonable for local authorities to be responsible and therefore have to insure against every accident that occurs as a result of a pothole.

The relevant law is in Section 58(1) of the Highways Act 1980. This states that the authority (or other body responsible for maintenance and repair of the road) may defend any claim by showing it has taken “such care as in all the circumstances was reasonably required to secure that part of the highway … was not dangerous for traffic.”

In practice, this means an authority needs to prove it instituted and observed a reasonable system of inspection and repair. In assessing the reasonableness of such a system, the Courts will have regard for a number of factors. These include:

• the nature of the road and the traffic reasonably expected to use it
• the standard of maintenance appropriate for such a road
• the state of repair an ordinary person would expect it to be in
• whether the authority knew or could be expected to know, the road was likely to cause a danger to users

This is a wide-ranging defence and, as a result, claims resulting from potholes are notoriously tricky. It is not simply a case of claiming the pothole existed, was two inches deep and there is a valid claim.

How the authority may respond

Unlike road traffic collisions involving another vehicle, liability is therefore very rarely admitted as a matter of course. Instead, an authority, via its Insurers, will typically respond to a notification of a claim by stating it had a system of inspection in place, that it was reasonable, and that no matter how big the pothole was, it will not meet the claim.

In certain situations, the authority may have a valid Defence along these lines and there will be little prospect of succeeding with a claim. It is advisable to seek legal advice to assess whether the authority has satisfied the statutory Defence. If it has, there is little point in continuing litigation because, if the matter proceeds to Court, you are likely to be forced to pay the authority’s legal costs while recovering no damages – a potentially costly outcome.

A solicitor will look at the factors to be taken into account by the Court in assessing the authority’s system of inspection. S/he will advise whether the factors are likely to weigh in your favour or that of the authority and therefore whether it makes financial sense to pursue litigation. Remember – not every crash will result in a successful claim.

Mark Bowman specialises in cycle accident claims. For free initial advice, contact him on 0330 460 6794 or by email.