1980 Highway Act

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olivermleach
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1980 Highway Act

Postby olivermleach » 4 Jun 2013, 10:47am

Dear all,

I would appreciate a bit of advice about a crash that happened in the Autumn of last year. I was cycling along about to turn left when my front wheel ran into a sizeable pothole, locking the front wheel and throwing me over the handlebars. The front wheel needed truing and the shifters and bar ends were damaged. I was cycling carefully at around 15mph but did not see the hole as I was about to make the manoeuvre! To be clear, the hole was in the tarmac as well as the adjacent utility cover.

I contacted the London council responsible for maintenance of the road and they referred the case to a claims handler. A long-winded process was then carried out during which time I had to chase up the claims handler then contact the council to request additional information that the council was not supplying. My claim was then rejected on a number of grounds, and although I was not originally intending on pursuing this very far I have become more and more unhappy with the reasons on which my claim was denied. It is a little fishy to say the least.

First they rejected on the basis that on a site visit in February 2013 the defect was measured to be 25mm. I pointed out that this was many months after the incident had occured, and the defect had since been repaired (the repair job was 'raised' due to my claim). They then said that 25mm was not an 'actionable' size of defect and that my picture (taken at the time) clearly showed it was smaller than this. I had to point out that you could not determine the depth of the hole from my picture because I had put a coin in the hole as requested but not at the correct angle. However the pictures taken by the council using a fluid measure clearly showed the hole was 25mm. I then saught legal advice from the CTC who recommended pursuing the case further and that I could take it to the small claims court if necessary, although this seems over the top in this case. I pressed the claims handler and they obtained a copy of the council's policy which clearly states that defects over 20mm must be repaired(!), undermining one of their key assertions.

So, their one remaining defense is section 58 of the 1980 Highway Act:

"We are able to show that our client have undertaken regular routine inspections of the highway and any actionable defects were recorded at that time. No complaints or accidents of a similar nature were reported to our client at this specific location prior to your accident. Our client was not put on notice of any such defect and therefore could not have foreseen this incident from occurring."

So regardless of how rigorous these insepctions might or might not be, presumably this could form a defense in EVERY case brought like this. Is this really acceptable, to simply say: 'yes there was a massive hole, but we check for massive holes once a month'?

Is there any way to prove liability? I think it is quite shocking that two out of three of their reasons for denial were based on false information and the third is in my opinion tenuous.

Many thanks!

Oli

thirdcrank
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Re: 1980 Highway Act

Postby thirdcrank » 4 Jun 2013, 10:55am

I'm not clear whether you suffered injury. If so, I'd recommend consulting a solicitor specialising in cycling personal injury cases. If you are a CTC member, then the CTC helpline is probably the obvious route, otherwise the same firm is available on a no win no fee basis, as are others.

Be aware that there is a three year limit for starting a personal injury claim - tempus fugit.

Here's one I prepared earlier:

viewtopic.php?f=1&t=49627

olivermleach
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Re: 1980 Highway Act

Postby olivermleach » 4 Jun 2013, 10:59am

Hi thanks for the reply.

I had some bloody gashes to my arms and a dead arm for 3-4 days but didn't need to see a doctor as it got better on its own. I didn't call an ambulance at the time. The bike came off worse.

Oli

thirdcrank
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Re: 1980 Highway Act

Postby thirdcrank » 4 Jun 2013, 1:53pm

The reason I mentioned injuries is that afaik, they are the key to the no win, no fee thing. In general, injuries rate more highly than damage. In a case like this, damage to a bike would be recovered as incidentals if the case were to be successful. If you are only looking for your bike being repaired, that's a small claims case which a solicitor can help with but not represent.

Overall, my advice would be that you are wasting your time doing a DIY job on something like this. Any injury claim is best dealt with by a lawyer, and that applies in spades to pothole cases such as yours. It seems to be standard practice to reject all claims of that type from the outset and to continue to do so until an unanswerable case is presented. As a DIYer, I doubt if you have got beyond the person who opens the post.

The highway authorities' special defence means that in any case, it's a very difficult legal area. I'm surprised that you haven't had any replies from others who have been through this. I'm not suggesting success is impossible - it's often reported that they spend more on compo than mending the roads - but it's not DIY territory.

A decent lawyer would give you a free initial interview to see if you had a worthwhile case.

This is all AFAIK. I'm not a lawyer.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
edit to add:

Speaking as a layman, I suspect that the only realistic hope of overcoming the special defence is to prove that the highway authority was aware of the defect. In this context, note that there is a fairly recent decided case which held that the special defence only covered cases where the HA had a reasonable inspection regime which had not recorded the defect because it had occurred between inspections. It does not cover circumstance where the HA was aware of the defect and decided it did not justify repairs eg because of priorities imposed by limited budgets. (That's my wording, not a law report.)

You could do some research of your own eg check reports on fillthathole and similar pothole sites.

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Mick F
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Re: 1980 Highway Act

Postby Mick F » 4 Jun 2013, 3:35pm

I fell foul of that act and my solicitors caved in. I was badly hurt after hitting a massive pothole, but basically "I should have looked where I was going". :oops:
Mick F. Cornwall

TonyR
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Re: 1980 Highway Act

Postby TonyR » 4 Jun 2013, 4:17pm

If you just want some damages to cover your bike go to the Small Claims Court which is specifically designed for DIY. Both sides bear their own costs which means the loss adjusters will work out whether its cheaper to pay up or defend. For small amounts its nearly always pay up.

On their defence I would ask for their policy & procedures for inspections - it being well known that potholes do appear in roads - and their inspection schedule for that site demonstrating they followed policy. If they've tried reasonably then their defence has merit but often there is no policy or the inspection intervals are much too long or the policy was not followed all of which help your case.

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danfoto
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Re: 1980 Highway Act

Postby danfoto » 4 Jun 2013, 4:28pm

thirdcrank wrote:Speaking as a layman, I suspect that the only realistic hope of overcoming the special defence is to prove that the highway authority was aware of the defect. In this context, note that there is a fairly recent decided case which held that the special defence only covered cases where the HA had a reasonable inspection regime which had not recorded the defect because it had occurred between inspections. It does not cover circumstance where the HA was aware of the defect and decided it did not justify repairs eg because of priorities imposed by limited budgets. (That's my wording, not a law report.)


Any might I ask what your valued opinion might be in the case where a cyclist comes a cropper (if indeed that phrase is still current) and can prove that the pothole had previously been reported via the relevant council's pothole-reporting site? I wonder how long him with the wig on his head would say was a reasonable length of time for the council to effect a repair ...
A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort.

thirdcrank
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Re: 1980 Highway Act

Postby thirdcrank » 4 Jun 2013, 5:19pm

My understanding as a layman is that the Highways Act imposes certain duties on highways authorities and one of them is to maintain them. That brings with it a duty of care owed to users of highways. If they follow a reasonable regime of inspection, then they have a special defence if a road user comes a cropper and makes a claim for negligence. Beyond that, the officials of the highway authority are employed to use their expertise to manage the network. That involves taking decisions based on risk assessments, cost-effectiveness, the extent of budgets etc. That's all part of the responsibility that comes with the job - just the same as any other. The special defence only applies in respect of the inspection regime, not all the rest of the management decisions.

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danfoto
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Re: 1980 Highway Act

Postby danfoto » 4 Jun 2013, 6:11pm

Forgive me if I'm having a brainfart here, but ...

I understand the business of regular inspections and the special defence relating thereto. What I don't understand is what happens when a pothole appears (or worsens significantly) between those inspections and is promptly reported via the council's website. Does that scupper the special defence, as might reasonably be expected?

And if it does, do our learned friends then fall back on arguing the toss about whether or not enough time elapsed for a reasonably efficient council, having become aware of the problem, to get on the case with their steamroller?
A positive attitude may not solve all your problems, but it will annoy enough people to make it worth the effort.

thirdcrank
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Re: 1980 Highway Act

Postby thirdcrank » 4 Jun 2013, 6:55pm

danfoto wrote: .... What I don't understand is what happens when a pothole appears (or worsens significantly) between those inspections and is promptly reported via the council's website. Does that scupper the special defence, as might reasonably be expected?


My understanding and what I've been trying to say is that the special defence would not apply.

... do our learned friends then fall back on arguing the toss about whether or not enough time elapsed for a reasonably efficient council, having become aware of the problem, to get on the case with their steamroller?


My understanding is that the normal defences against any claim for negligence would be available. I suspect (but I don't really know) that acting reasonably in the circumstances of the case is one such defence.

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gaz
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Re: 1980 Highway Act

Postby gaz » 4 Jun 2013, 7:33pm

I was speaking with a highwayman about a year or so ago and added his comments to Mick F's pothole thread, in his experience 85% of all (motorists, cyclists, peds, etc) pothole related claims fail.

More here.
2020 : To redundancy ... and beyond!

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Mick F
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Re: 1980 Highway Act

Postby Mick F » 4 Jun 2013, 7:35pm

Thanks Gaz.
You remember my accident.
I have difficulty forgetting it!

My claim failed because the road was under "special measures" or words to that effect.

Councils cannot be expected to check their roads every single day. They rely on reports from the public and from the regular checks, and if the road is a regular and constant problem, they put it under a heightened regular/frequent checking regime.

Say they check a "normal" rural road every couple of months. With extra checking they'll check it bi-weekly or even weekly. They cannot be expected to do more on rural roads .............. sadly.

I fell foul of the "system".
Cornwall Council said that they had checked that stretch of road only the week before - and had paperwork to prove it. The hole appeared afterwards ................. and I fell into it.
Mick F. Cornwall

TonyR
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Re: 1980 Highway Act

Postby TonyR » 5 Jun 2013, 8:34am

I don't think you fell foul of the system. We have to expect there will be hazards on the roads and keep an eye open for them when riding. We cannot expect a council employee to cycle in front of us all the time to wave a red flag every time they spot a new pothole that has appeared. Provided they have a reasonable inspection schedule and follow it then they are doing the best they reasonably can and we have to take care of the rest ourselves by both looking where we are riding and by reporting new potholes when we find them.

The reporting though is a double edged sword because while it helps others, it makes it worse for the person reporting. Their legal defence will be that you obviously knew it was there because you reported it so why did you not avoid it?

Phil Fouracre
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Re: 1980 Highway Act

Postby Phil Fouracre » 5 Jun 2013, 8:49am

Every sympathy, but, got to say it, why not look where you are going? You say you didn't see it because you were 'carrying out the manoeuvre' surely looking is part of this proceedure!!!
Never attribute to malice that which is adequately explained by stupidity

thirdcrank
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Re: 1980 Highway Act

Postby thirdcrank » 5 Jun 2013, 9:22am

On the theme of "look where you are going" it does seem from the cases that are reported that there are often substantial reductions in the payout for contributory negligence for not keeping a good lookout. A reduction of 50% and more seems to be normal here.