Potholes and Cyclists
A pothole is a type of defect in the road caused by a combination of two factors: water and traffic. The presence of water in the underlying soil structure results in the surface weakening and expanding. The thawing process after freezing weather conditions such as frost can also lead to the surface weakening. Frequent traffic passing over the affected surface then causes it to break down and create a hole in the pavement or road. In very cold weather and on busy roads potholes can develop quickly. With road maintenance in England and Wales underfunded by around 55% or £1 billion every year and the average frequency of roads being resurfaced in England as once every 54 years there is significant opportunity for potholes to develop into major hazards for cyclists. In fact it is estimated that there is one pothole for every 110 metres of road, causing a very real danger. Cyclists manoeuvring in tight spaces alongside heavy flows of traffic can be faced with an impending pothole and as a result, have to swerve, suddenly brake and unfortunately may lose control. Such an obstacle may in extreme circumstances cause a collision with vehicles and injuries can be very serious. The significant difference between surface area on a bike tyre and on a car tyre means that a cyclist cannot with confidence proceed over a pothole without causing damage to the tyre. Cycling conditions such as riding in the dark adds to the danger for cyclists as even with adequate lighting on the bicycle, they are unlikely to see potholes on the road surface as clearly as a car driver with the use of headlights. Local councils have a duty to maintain and repair roads and paths which are maintainable at the public expense. This will include most roads and some cycle paths depending on the locality. The road or cycle path should be in such condition to render it reasonably passable for ordinary traffic without causing danger. Therefore, local councils are under a duty to repair potholes which amount to a danger to road users, including cyclists. However, councils do not have a duty to know and fix every defect in the road or cycle path and so, if there is no prior knowledge of a pothole which has caused an accident, this can prevent a successful claim against the local council. Section 58 Highways Authority 1980 provides a defence to councils if it can be shown that they have taken necessary measures to ensure the highway was not dangerous for traffic. Most importantly, s.58(d) states that a council will only be liable where the authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway. The defence available for local councils highlights the importance of individuals reporting to councils and making them aware of any dangerous pothole appearing on roads. In Wilkinson v York City Council  EWCA Civ 207 the Court of Appeal allowed an appeal from a cyclist who had suffered injuries including a fractured chin having fallen off her bicycle after her front wheel hit a pothole. The Court of Appeal recognised that there will be no defence for a highways authority when they deviate from the national code of practice for maintaining highways because of budget considerations. Recently, a Team Sky cycling boss was successful in receiving undisclosed damages from Oldham Council for an accident in May 2010. Fran Millar suffered fractures to her cheek, jaw, fingers and had several teeth knocked out when she swerved to avoid one pothole, then injuring herself on another. The poor resurfacing to the roads had caused potholes to appear and this resulted in the accident. In Beechey v Milton Keynes Council  C.Y.L 2472, Mr Beechey was successfully awarded £17,500 having sustained several fractures, and severe bruising to his body, after being thrown from his bicycle after striking a large pothole in the road. Mr Beechey required surgery for his injuries and only made a reasonable recovery a year after the accident. The Judge found that he would never be able to regain his pre-accident cycling ability and that his day to day mobility would always be hindered as a result of the accident. Despite councils in England and Wales compensating road users to the tune of £20million for damage caused by potholes, it doesn’t appear to be a priority for councils to implement preventative measures. Rather, it is only once the pothole has appeared, and the risk of injury created that the council become involved. It is important that every accident is reported and, if appropriate, a claim pursued through a specialist lawyer who can provide expert advice.