POTHOLES: Know what to do

Let’s face it, some roads in the UK are still looking more like the surface of the moon than anything remotely related to a safe riding surface. Be careful out there this summer. And if something does happen, here’s what you need to bear in mind.

If you’re unfortunate enough to fall off after hitting a pothole, you’re going to have to prove the local authority responsible for that particular road breached their legal duty to maintain it as set down in law (S41 of the Highways Act 1980) and that this caused you to fall off. So, practically, how can you increase your chances of being successful?

1: Photographs

It’s true that a picture speaks a thousand words. While you could stand up in court and describe to the judge in great detail about the crater you fell into, some photographs will be much more effective way of communicating what happened. Get photos of the offending pothole as soon as you can (so, don’t leave it months after the fall before heading back to the offending road defect in case it gets filled-in). Make sure the photos are in context – so take some photos on the approach to the offending pothole, perhaps at 100m, 75m, 50m etc. Don’t just have loads zoomed-in on the pothole itself, not showing where it is. If you can, measure the width and depth with the tape measure in shot. Lastly, be safe; don’t take any risks to get the photos (so wear a Hi-Viz vest; don’t go on your own; don’t do it during rush hour. Be safe).

2: Witnesses

Often when someone falls off their motorbike, their instinct is to get up, say they’re fine and try not to hold anyone else up. However, try and take a few minutes to gather your thoughts and if someone did witness the accident, get their details. You will likely need a statement off them later.

3: Police

If you’ve taken a tumble and the police do turn up, get a reference number from them and details of where they are based. The country has different police forces, but if you know which force the officer is from, know the accident location and have a reference number then you can apply to the correct force for a police report should you need it. While there is a fee for a police report, it may be money well spent if it has valuable evidence to help you win your case.

4: Disclosure

Just about every applicable local authority denies liability (at least initially) following a pothole accident. They will almost certainly say they had a suitable inspection and repair system in place and “... had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.” (S.58 of the Highways Act 1980). Whether this is true or not will depend on where the offending pothole was located.

If for example it is on a busy ring road, they should have been inspecting the road regularly (say monthly) and fixing repairs where needed. If they can prove that, they will likely have a “Special Defence.” If they can’t, you will likely win. Therefore, you need to write and ask for a copy of their records. Once you have them, you can make a decision as to whether they have a “Special Defence” or not.