Chances are if you’ve ever tried to make a claim for injury or damage to self, bike or car against the highway authority (HA) you will have received the standard fob-off to the effect that the defect was not present when the HA last inspected, so it cannot be responsible. Thanks anyway for telling us, we’ll flag it up for repair.
End of. You’re on your own. Nice saving for the HA and their insurers.
The root of this pothole repair get out of jail free card lies in the Highways Act, s 58, which says that so long as the HA applies a reasonable policy for inspection and repair it cannot be held liable.
A reasonable inspection policy depends on the category of the road: it’s between 1 month for busy main roads, 3 months for distributor roads and 6 months for lesser used link or access roads. Some HA will try to reduce rural lanes to 12 months.
What’s reportable by the HA inspectors is generally not less than 4cm deep, sharp lipped and 30cm broad or long. But there are many variations and interpretations. Assessment of what is reportable at inspection is a matter for experience [send us a pic].
So, unless you have access to a convenient Tardis, who is to say whether the defect was present or not when the road was last inspected?
The only way to discover if the HA is doing its job properly is to wait and see. It’s not difficult to assess the likely frequency of inspections for a given road, although HA’s do tend to understate them in order to reduce the inspection cycle.
If not repaired within the likely inspection cycle, someone’s not doing their job, so the defence of having a reasonable inspection regime is that much harder for the HA to argue. And hopefully no-one else has crashed in the interim.
But for sure, if you crash today on a road with a 3 or even 1-month inspection cycle, the defect won’t have been there (they’ll say) when it was last inspected, even if that was as recently as a week to 10 days ago. Potholes can develop very quickly, we’re told, although the presence of fag ends, weeds and bottle tops in the hole can be a give-away. The sign of a new-ish pothole is a spread of the gravel around which until recently was the road surface.
But with this defence available, what pressure is there on a HA to do anything until someone reports a crash?
Imagine you’re the unfortunate cyclist that hits a pothole at speed. You have broken your collar bone, got lots of road rash and your bike needs serious attention (not to mention the rest of your ruined kit). Would you report a pothole or other highway defect which has caused a crash to Highways straight away?
If you think you would, then reporting the defect immediately to the council could provide it with a defence, meaning you would be unable to claim compensation for your injuries or recover the cost of repairing/replacing your bike and kit.
On the other hand, delaying reporting the defect might give you a better chance of a successful claim but could result in another cyclist ending up in the interim in the same or an even worse situation.
We don’t believe it’s a fair decision to put on the cyclist, but one which the current legislation creates.