Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Hazard on the highway – road surface is not in great shape!

I put pen to paper after having weaved around a number of potholes and noted that they are increasing in frequency.

As responsible road users we do our best to plan ahead to avoid hazards on the road but what is the legal position if your vehicle or cycle sustains damage and/or you suffer injury due to a defect or hazard on the road surface?

As a qualified solicitor acting on behalf of those who have sustained serious injury and/or have been bereaved, claim compensation, I thought I might share with you some of the scenarios I have come across and the legal solutions that might be available. I offer the below as guidance and not formal advice. If you have a specific enquiry then you should approach a solicitor for advice tailored to your particular need.

Potholes

The Highway Authority has a Statutory Duty under the Highways Act 1980 to inspect and maintain the highway. As such if you are driving your car along the highway but are unfortunate enough to strike a pothole that causes damage and/or injury to you then you have a potential claim against the Highway Authority.

The first question is whether the pothole will be deemed to be a “defect”. This is by no means clear cut. The conventional assessment is that the pothole should be more than one inch in depth or be of such a nature to be an obvious hazard.

Having established the pothole is a defect then the second question is whether the Highway Authority has discharged its duty to inspect and maintain the highway. If the Highway Authority is deemed to have discharged that duty then section 58 of the Act will avail them of an absolute defence and you have no claim. The onus is on the Highway Authority to confirm to you when the highway was last inspected, observations made as to the condition of the highway at that time, and what, if any, remedial action was taken. In many cases I have found the Highway Authority will rely upon their own inspection as having been adequate and leave it to the person who has suffered the loss/injury to challenge the adequacy of the inspection as well as any remedial action.

In order to challenge the Highway Authority a detailed analysis of the documents disclosed by the Authority is required to determine if the inspection was adequately undertaken and any remedial work appropriately completed. By way of an example, if an urgent pothole repair was identified then how quickly was it repaired because if left too long then the Authority may be in breach of it’s duty. Also, if the pothole is in a residential or commercial area an approach could be made to nearby homes/premises to see if anyone can shed some light on how long the pothole had been in place.

I acted recently for a client who had sustained a head injury due to a defect on the road surface. The Highway Authority denied responsibility. However, after witness statements were produced from local business owners confirming that the defect had been in place significantly longer than the stated inspection period the Authority then admitted a breach of duty and dealt with the claim.

The position is slightly different if you suffer damage to your vehicle or injury due to a pothole on private land because the land owner, not the Highway Authority, will owe you a duty of care under the Occupier’s Liability Act 1957 or 1984. If it is proven that the pothole posed a risk to visitors to the premises then it will be difficult for the occupier to evade responsibility.

Ice/Snow and flooding

The Highway Authority has a duty to ensure so far as is reasonably practicable that safe passage along a highway is not endangered by snow or ice. This is not an absolute duty. If you have an accident in the snow then you have a potential claim against the Highway Authority. However, if the Highway Authority can prove that they had an adequate policy for dealing with snow in place, that was followed, and subject to that policy being reasonable then the claim may not succeed.

Another issue is flooding on the road. The duty to maintain a highway includes providing an adequate drainage system. If the flooding is due to rain water then if you have suffered damage to your car and/or injury then you may have a potential claim. The Highway Authority will again be able to rely upon the Highways Act to defeat the claim if it can be shown that the Authority inspected and maintained the road drainage system against flooding. If the road is prone to flooding then often a closer look as to what action the Authority has taken is required. I am aware of at least two Highway Authorities who built soakaways from the road to prevent repeated flooding.

Should the water not have been caused by rain but instead from an escape of water from a pipe then it could be argued strict liability will apply against the pipe owner under section 209 of the Water Industry Act.

Gravel

There have been a number of cases where road crash, often involving motorcycles, is caused by recently laid gravel on the road which may give rise to a claim against the Highways Authority in negligence if the gravel was laid down negligently by them or their sub contractors. A claim may also arise under the Highways Act if it can be shown the gravel should have been much sooner detected and made safe.

Other Hazards on the road

If road crash is caused by an item or substance that may have originated from a motor vehicle then a potential claim may arise against the driver or, where the driver is not identified, the Motor Insurer’s Bureau.

The most common scenario is where a motorcyclist is travelling on the highway but a diesel spillage causes him to crash. If it is accepted on the balance of probability that the diesel spillage came from a motor vehicle, for example an HGV, then a claim may be pursued. As it is likely the HGV had already left the scene before the motorcyclist came upon the diesel then the driver may not be identified and a claim is made to the Motor Insurer’s Bureau who operate an “Untraced Drivers’ Agreement”.

The Untraced Driver’s Agreement is to compensate those injured through motor accidents where the driver proven to be at fault cannot be identified. If the Application succeeds then the Motor Insurers’ Bureau will compensate the injured person in very much the same way as an insurance company.

In all cases I would recommend that you contact a specialist Solicitor who can provide you with advice tailored to your particular enquiry.

Matthew Claxson is a Solicitor and Partner at Moore Blatch Solicitors specialising in serious injury and fatal incidents. Call Matthew on Freephone 0800 157 7611 E-mail: matthew.claxson@mooreblatch.com Profile available on LinkedIn. Twitter: @matthewclaxson


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