Ask the lawyer
Do you have a claim if you hit an unmarked road cone?
I PURCHASED MY motorbike as a direct result of Covid. I am a new rider and I bought the bike to avoid crowded trains. On one of the first journeys I did after dark, I ran into a road cone. I fell off, luckily with nothing worse than some bumps and bruises but with expensive repairs to my bike which I do not want to run through my insurers. It is rideable, just not pretty.
The road cone was the first one leading towards maintenance work being carried out by a water company. The cone had no reflective strips; no battery lights; and was filthy. I contacted the water company which had a sign up saying the roadworks were theirs. It put me in touch with a highway signs company which basically told me to do one.
Do I have a claim?
Q
YES YOU DO. The law is straightforward. There are two tracks you can go along and I’m going to suggest you take one, namely negligence. If you put a dirty, nonreflective cone on an unlit highway, the chances are someone is going to hit it. The greater likelihood is it will be hit by a car, van or truck and no harm will be done but you sustained an expensive repair and a modest injury.
There is a simple three-stage legal test. The first is; does the signage company owe a duty of care to road users? Of course it does. It makes its living by putting lawful obstructions in the road. It is a natural and foreseeable consequence that if it does this carelessly, then there is a
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real risk of harm to — amongst others — motorcyclists and cyclists, as well as car drivers.
The next question is; did it breach that duty of care? In placing a dirty, approximately khaki-coloured cone on an unlit highway without any flashing beacons, it fell below the standards expected of a company placing obstructions on the highway. It can do this and the courts will look to what is ordinary industry procedure, set out in semi-statutory guidance. For unlit carriageways and dependent upon the speed limits, flashing beacons for a percentage of the cones are expected, and in order to achieve the BS marking for a road cone, a reflective surface is required. Common sense says that an orange cone covered in road filth is not very visible. I do not think you will have any problem with breach of duty.
The third element is; did you suffer loss? The damage to your motorcycle and the repair estimate for it is sufficient proof of your loss. You have an absolutely solid case and if you take it to the small-claims court, I have no doubt you will win.
You have really helped yourself by taking photographs. The majority of the cones were filthy. Only some had reflective sleeves and there was not a single beacon on any of them. The cone you hit has a tyre scuff mark which polished off some of the dirt revealing a tired-looking and still dirty orange plastic cone, and the mark shows the absence of a reflective sleeve. You did everything right.
You now need to make a decision — either be prepared to go to smallclaims court or give up. We know that until court proceedings are issued, most of these companies will simply ignore your perfectly-proper request, in the knowledge most people give up. It is taking about a year for smallclaims cases to come to trial, so it won’t be quick but it won’t be especially demanding either.
I expect a few weeks before the trial goes ahead, you will be made an offer to pay you for the damage to your bike. Your injuries are modest but if you wish to bring a claim for them, it is customary to have at least some medical evidence proving them.
You should name both the water company as the first defendant and the signage company as its agent and/ or the second defendant. It is not absolutely legally correct but it is the small claims court we’re talking about — the judges will not worry about that with a litigant in person.