If a cyclist is injured as a result of a pothole or defect on the road they were travelling on at the time of their accident, they may be able to pursue a cycling accident claim.

It is important to establish who is responsible for the defect or pothole. This is often a county council or unitary authority. In London, it will be the common council in the City of London, or if outside the city, the relevant London Borough. A simple search by area and postcode can assist in identifying who is the relevant authority.

If an accident occurs on a trunk road, then the Defendant will be the Secretary of State.

Section 41(1) Highways Act 1980 provides that "The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty to maintain the highway".

This duty of care is owed to all members of the public who are using that highway. The duty is absolute but only concerns the fabric of a highway. Maintenance of materials or objects which are not to do with the "fabric" of the highway (such as street furniture) would be excluded. However, in contrast a duty to maintain drainage would trigger Section 41(1).

"The Test"

Firstly it has to be shown that the highway was sufficiently dangerous to traffic or pedestrians. Secondly that the dangerous condition was created as a result of the failure to maintain or repair a highway. Thirdly it must be shown that an individual sustained an injury as a result of this failure. All three of these criteria must be satisfied in order to meet the court's threshold test.

Dangerous or not?

When determining whether a defect or pothole is sufficiently dangerous, each case will be considered on the individual facts and circumstances. Whilst the courts have failed to give a binding decision as to the specified size of the defect, differences in level of once inch or more are likely to be regarded as dangerous and unsafe.

The Statutory Defence

The burden is on the Defendant to prove that they have a defence to a highways claim. If you have been injured as a result of a pothole, you do not have to show that the council failed to take the requisite care.

If a highway authority has taken such care as is reasonable, to secure that part of the highway where the accident happened then they will have a defence.

A number of factors have to be considered including the character of the highway including the age of the road, its surface and drainage capabilities as well as the traffic that was expected to use it.

The standard of maintenance must be appropriate to that highway and the state of repair. Finally consideration as to whether the highway authority knew about the defect or pothole or could reasonably been expected to know about it has to be borne in mind.

When deciding whether an authority "could reasonably have been expected to know" is a question that relates to the maintenance and inspection system that they have in place.

An authority has to adopt a system of maintenance and inspection, which includes checking that a complaint book and a system have been implemented, to have a defence to a claim.

If a highway authority can show that they inspected the highway within the last 1,3,6, or 12 months (depending on the type of road) and they did not identify or fail to repair the defect that caused your accident then they will escape liability and not be at fault, even though at the time the defect was dangerous.

What evidence do you need?

After an accident, take photographs of the defect itself, in terms of width, height and depth. It is helpful to have a point of reference such as a coin which you can place in the hole, or to return with a ruler and take a photograph showing the measurements.

Ensure that you have photographed the size and shape of a defect and remember key points of reference so you know the exact location of the defect. If possible a video is also helpful.

If you instruct a solicitor specialising in cycling accidents, they will request copies of inspection records from the highway authority for 5 years prior to an accident, as well as maintenance records from the highway authority for the same time period. Details of any previous complaints ought to be obtained, both in terms of the overall condition of the highway as well as the specific defect. Minutes of meetings from the highway authority and engineering reports relating to the site are also relevant. Copies of medical records will be obtained from both the Claimant's GP and hospital.

We will never know at the outset of a claim if we will succeed and we have to wait for the council's disclosure before advising a client on prospects of success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.