Vulnerable road users such as cyclists are at risk of injury or damage to their bikes by potholes, but the system is stacked against them to ensure that claiming is difficult and financially unrewarding.
Potholes are more than just an annoyance to cycle around – highway defects can damage bikes and riders, often seriously because the mechanics of impact cause wheels to crack and forks to break. A broken set of wheels and frameset can run you into the thousands, while physical injuries and their consequences can run into tens or hundreds of thousands, especially if it stops the victim from working. To put it simply, potholes and their consequences are no joke.
As bike riders, we are the users most vulnerable to highway defects, but what you may not know is that the whole process of achieving redress is stacked against the victim. If you have an incident involving a highway defect, the responsible body is usually the Highways Dept – a division of the County Council. The Highways Authority may self-insure up to a set level. They’ll either have an in-house claims rejection department or will farm it out to a loss adjuster. If you are making a claim, they are ready for you.
Whilst we know the real damage and cost of a pothole, the Highways Authority prefers to believe that cyclists are exaggerating for their own gains. Here is a verbatim quote from the current Well-Maintained Highways Code of Practice, which is the Highway Authorities’ bible:
“Surveys suggest that 1 in 7 individuals have no qualms about making fraudulent insurance claims, and that 55% of claims are opportunistic and exaggerated. Authorities owe a duty to the community to protect public funds from fraudulent claimants and should establish systems that can identify and resist fraudulent claims.”
Clearly, these are people who do not understand or support cycling and have never heard the sickening crunch of their prized and loved ‘best bike’ hitting the deck, or dealt with the misery of road rash or injury. Whilst local authorities proudly support cycling, the default setting of claim rejection belies those statements.
Damage to your bike
So what happens if you are injured or damage your bike due to a highway defect, such as a pothole? Let’s deal with professional assistance first. The Ministry of Justice defines any non-injury claim worth less than £10,000 a ‘small claim’. Yes, that’s right – £10,000 is a small claim! The rules for small claims prevent a claimant, even if successful, from recovering any reimbursement in respect of a lawyer’s fees.
So suppose with some professional assistance you claim for £5k for shattered wheels, broken forks and a cracked frame… A realistic price for many of our bikes. A lawyer who is sufficiently experienced to prepare the case and present it at court will be running on £175 to £200 per hour. By the time the inspection and repair regime documents have been beaten out of the Highway Authority and analysed (because they are not straightforward); the claim papers prepared; the witness statements drafted; the opponent’s statements analysed; the document bundles collated; paginated; indexed (because that’s what is needed to submit the case) and filed; the case prepared for hearing involving cross examination of witnesses and a day in court at a minimum of 25 hours will be on the clock… 25hrs x £200 = £5,000 payable out of the winnings. Remember how much you are claiming for? You’ve won, but have nothing in your pocket to replace your bike.
So that’s how the local authorities, adjusters and insurers play the system. They exploit the small claims rules to their advantage because the cost and hassle for the victim of the Highway Agency’s failure is disproportionate to the anticipated result. Most people prefer to save the hassle and use their own cash to repair the bike as there is little chance of them seeing anything back from the Highway Agency, even if their claim is successful.
Injury to your body
Now let’s take a look at what happens if you were injured – maybe fractured a collar bone and some road rash to your face and upper body.
It’s impossible to underestimate the inconvenience of any of this. Life temporarily stops. There will be a trip to A&E, a follow up in a fracture clinic, a visit to the GP for a sick note, and to a bike shop for a repair quote… You will need assistance with personal hygiene, dressing and food prep. You’ll also most likely need time off work. Whilst injured, your domestic routine, DIY, recreation, family time and, of course, cycling are all screwed for the duration.
The insurance industry apologists in parliament ought to try strapping up an upper limb for a couple of weeks and then see how they manage to calculate their expenses one-handed!
Currently, an injury claim with an injury value of £1,000 or more is NOT considered a small claim, so if successful, a contribution to the costs of professional representation can be recovered. But the Ministry of Justice is intending to increase that limit to £5,000 in 2019, so injuries of the sort described above will fall below the small claims limit. This is where it becomes really unjust, because people who have been hurt enough to merit hospital attention will not be able to pursue their claims, purely on financial grounds.
That means that in addition to the lack of actual injury compensation, there will be nothing for say three-weeks loss of earnings, which could wipe the chance of taking a family holiday this year, for example.
Hunt for evidence
OK, so how does one even up the odds of success? Evidence! This requires you to be clear witted and act fast (or get others to do it for you) immediately after your incident.
First, get a photo of the defect. Get a landmark, as otherwise the insurer will deny that the defect is the actual responsible defect. Then measure the length, breadth and depth and photograph the ruler or tape. Place a flat or straight edge across the defect and measure down to the base. It’s called pothole profiling. If dealing with a protuberance, for example a raised grid or tree root, reverse the process.
Then go knock on some doors nearby and try to establish for how long the defect has been present. Ask anyone living or working nearby how long they remember it being there for – even consider accosting local dog walkers or cyclists. Take names and contact details.
The next stage requires patience. Whatever you do, don’t report it immediately as then your evidence will be filled in and you’ll be told: “Well, it wasn’t there when we last inspected, so we are not liable.” Instead, just watch and wait. Go back every week, check it’s still there and take another photograph. Take advice from our Helpline as to what the likely inspection period ought to be for that particular location. The idea is to prove that the defect has lain happily undisturbed and unrepaired for far longer than the permissible period. When the claim is presented, you may find that the council say that they have inspected in the intervening period. That’s always amusing if you can prove that the defect must have been ignored.
Then comes the process of dragging the records out of the council. It will take several attempts to extract what you want, as opposed to what the council want to provide. A claimant is entitled to see records of complaints, the council’s written policy for highway maintenance, the basis upon which the road is categorized for inspection frequency, the inspection records and the works records, meaning when the instruction for repair was given, what exactly was done and when. The records will be highly technical and presented in a way so as to be as obscure as possible. If the council is really obstructive, an application may be made to a local court for what’s called pre-action disclosure.
Sorting all this is pretty time consuming. Some councils are now using GPS to identify location, but it tends to be a bit hit and miss. If you can confidently take a GPS position, that can be a benefit, too – and don’t forget good old Google Earth. If the defect is apparent when the survey was done, say a couple of years ago, the inspection records will be seen for the creation which they are. Use every resource you can.
If you can gather together your own images from the crash date and over at least the next three months (depending on location), plus GPS position and a statement or two from locals, then things are beginning to look hopeful.
However, even when confronted with evidence, it’s unusual for a council to concede. A court process and hearing is the norm. Here’s where it’s really stacked against you. Unless your lawyer has managed to persuade a court during the preparation stages that independent expert evidence from a Highway engineer and safety consultant ought to be allowed, the hearing will be very one sided, because the only technical evidence will be given by the council’s employees. So, even with all your investment of time and hard work gathering data, there is still no guarantee that your evidence will be enough to sway things.
Change is needed
That we’ve had to write this piece in all seriousness is a crashing indictment of the ludicrous system in which the most vulnerable, healthy, ecologically aware are treated by the council as latter-day pickpockets. That an injured person who has suffered damage to their body, their property and their financial situation might be ‘exaggerating’ or making a fraudulent claim is insulting.
At Cycle SOS, we are campaigning for a change in the burden of proof in cycle highway claims: we believe it should start with an assumption that the defect was a breach of the Highways Act and place the burden on the council to prove that it has acted in accordance with Act and Policy. Only this way can ordinary vulnerable road users, such as cyclists, expect a fair outcome.