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Good morning all
I've posted the following on other cycling sites, as i'm interested in any comments or experience you may have.

In late January 2010, i hit a pothole on the way home from work. 10 minutes later i awoke to find myself being loaded into an ambulance and taken to Walsgrave Hospital in Coventry, where i spent the next week, due to a bleed on the brain, plus other sundry injuries. If i hadn't been wearing a helmet, things would have been a lot, lot worse, of that i'm sure.

Anyway i made a claim for liability through a solicitor to the Highways authority.

I received their response last week; they are denying liability based on a Section 58 Defence. They provided copy documentation that they inspected this particular section of the road i had the accident on in November 2009 and that some work was done to tidy the road up (where the accident was). My solicitor has advised that if i can provide a witness to state that the pothole that caused the crash was there in November and July 2009 (when the Authority did their routine inspection) and that it was missed, then we may be able to proceed. As you can probably guess i'm not in a position to provide a witness.

Having thought about the Highways Authority decision on it liability, i have a number of questions i need to raise with my solicitor before i advise her how i want to proceed. Some of these are around the fact we've just had a particularly bad winter (when i didn't ride for about a month due to the roads being too dangerous), other are around the fact that i sustained what i consider to be reasonably serious injuries etc etc.

I'm wondering whether the Highways Authority has done this as a bluff and they do in fact realise they are liable but are trying it on, to see if i stop my action. As well as the Ambulance, the Police were also at the scene (as i was in the middle of the road) and they phoned Highways to advise of the extent of the pothole. It was then filled in, although not very well as it's already degraded somewhat

Sorry for the long post, but i would appreciate any advise, experience or comments you may have. If you have any cases that i could look at, then i would be very grateful. I have already found a couple to pass to my solicitor

thanks in advance
Simon Hume

3 comments

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dave atkinson [6330 posts] 7 years ago
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I'm not really sure how their defence works here. They're saying that they inspected the road in November and then you fell down a hole in January. This means that either:

a) they missed the hole, which is negligent; or
b) they patched the hole but didn't do it properly, which is negligent

assuming that the police incident report includes details of the pothole then that's grist to your mill, you can also sumbit FOI requests pertaining to the frequency and nature of the road inspections.

Section 58 is the standard response to claims such as this, so don't assume that they've even looked at the evidence for and against. there's a great step-by-step at http://www.potholes.co.uk/claims/step_by_step_guide

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DAG on a bike [81 posts] 7 years ago
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S58 is the typical defence of a highways authority. Sometimes it's good, other times it's not but insurers simply write out with a bog standard repudiation.

When a S58 defence is made, there should also be disclosure of relevant inspection records, or if not than disclosure should be sought. Close examination of the documents may assist in defeating such a defence.

If disclosure has taken place and there is a system of inspection in place then it is unusual for the courts to find in the claimant's favour.

Highways claims are fraught with difficulty and, in my experience, a significant number of claims will fail. But not all.

If your solicitor knows his stuff where highways claims are concerned, they should have already put the highways authority to task on their disclosure and advised you accordingly. From what you have said, there has been disclosure and the documents confirm the area was inspected and that no defects were found.

Be aware though, that if the area was inspected in November and no defects were found then your case is, unfortunately, likely to fail.

Because of the extremely hard winter we have just endured road surfaces broke up and potholes appeared in a very short time and the highways authority are not likely to be criticised for not repairing potholes before they became aware of them (i.e. at the time of an inspection or when a complaint is received).

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Barry Fry-up [188 posts] 7 years ago
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Quote:

If disclosure has taken place and there is a system of inspection in place then it is unusual for the courts to find in the claimant's favour.

sounds like that's true so long as the system of inspection meets the guidelines set out in the code of good practice. If it doesn't then that may help your case.

Quote:

From what you have said, there has been disclosure and the documents confirm the area was inspected and that no defects were found

it sounds to me like defects were found and remedial action was taken. DAG - what's the situation if defects were found but not properly fixed? sounds like you know your stuff  1