In common with almost every local authority Cheshire County Council appears to encourage the uptake of cycling.  The strategy is set out at www.cheshire.gov.uk/roads/policies/cycling.htm

The stated aim is “promoting and developing cycling in Cheshire as a safer, convenient, low cost and environmentally friendly mode of transport for commuter, shopping, social, leisure and other short trips, increasing opportunity for more people to chose to cycle thus helping to also increase the overall proportion of journeys made by cycle”. 

So, a Cheshire resident might reasonably expect that this policy would extend to generally sympathetic treatment of a cyclist who had suffered injury and loss due to a dangerous defect on a Cheshire highway.  Maybe the department responsible, on hearing of such an incident, would check out the location and satisfy itself as to the nature and extent of the defect and hasten to make some form of financial amends to the injured cyclist who was clearly practising what the council preaches? 

If only. 

Here is the legal bit.  The Code of Practice for Highway Maintenance Management identifies a dangerous defect as one that exceeds 40mm in depth and extends more than 300mm in any particular direction.  To qualify as dangerous it will also have a sharp lip.

In other words, the sort of defect which any thinking cyclist would do their best to avoid for obvious reasons.

The sort of defect seen in the images. It was just outside Moseley Hall, Chelford.

The same Code sets out a protocol by which highway authorities can categorize roads and allocate resources to inspection and maintenance.  The criteria include the speed limit and the volume of traffic.  According to the Code, the A537 which runs between Knutsford and Macclesfield ought to be subject to a monthly inspection regime.

The last time Cheshire carried out a traffic count was 4 years earlier when the road was used daily by over 5,000 vehicles.

As local authorities are perfectly entitled to do, Cheshire set its own policy.  That dictated that the road would be inspected at 2 monthly intervals.  And so it was, on the 15^th June 2007 by two individuals driving along in a small van.

20 days after the inspection our client cyclist sustained serious personal injuries when she was dismounted as a direct result of this pothole.  The pictures were taken on various dates between the 5^th July and the 9^th August 2007.   News that our team was inspecting the pothole quickly reached the Highways department which then rushed out and repaired it within 24 hours.

Unfortunately that was where the County’s benevolence ceased. It then defended the obligation to compensate the victim right up to a contested hearing in the Manchester County Court on the 25^th March 2009.

The Judge found 100% in favour of the victim, his opening assessment liberally scattered with remarks enquiring how and why the case had come to trial, that the intellect of a brain surgeon was not required to identify a dangerous defect when one saw one. In his concluding judgment it was made abundantly clear that if the local authority was intending to rely upon a Section 58 Defence (more later) in future then they (the authority) needed to think about their actions very carefully. 

In order to bring a successful claim for injury and loss resulting from a highway defect the victim has to overcome a number of hurdles:-

1.      Was the defect dangerous?

2.      Did the defect cause the accident? 

3.      Were the injuries and loss attributable to the accident?

Even if the victim succeeds on these points the Highways Act, Section 58, provides the highway authority with a trump card.  If the authority can show that it had a reasonable inspection and maintenance regime in place it will escape liability. 

Cheshire argued that as it had inspected the road 20 days before the accident (and a couple of months again before that) it had discharged its duty and was able to rely on Section 58 .

Not so said the Judge.  He formed the view that the pothole was of such depth and extent that it was more likely than not that there was something there to be seen on the 15^th July when the two inspectors trundled past in their van.

So, the Council Tax payers of Cheshire ended up footing a bill of in excess of £25,000 including the victim’s damages, court costs, medical reports and lawyer’s fees.  And in addition the cost of the three members of the highway maintenance team who came along to give evidence on behalf of their employer.

 All that might be worrying enough.  However, there are two particular twists to this tale.  First, in the course of the case coming on to trial the papers had been before another Judge for the purpose of review and identifying necessary witnesses.  He had taken it upon himself to give the Council the benefit of his opinion in fairly plain terms on the basis that any road user could recognize a long standing defect when they saw one and that he was looking at one right then. 

These wise words clearly washed right over the defendant. 

Second, the Council then decided to deny that it was in fact the pothole which had caused the victim to fall from her cycle.  More inconvenience; the good Samaritan who stopped at the scene to assist found himself in receipt of a witness summons and pulled out of his employment for a day so that he could come and tell the Judge that yes, he saw the bike stop and the rider thrown over the handlebars.

So, what conclusions can we draw?

First, all credit to the cyclist who showed the courage of her convictions by sticking with the claim throughout and coming to court to give evidence.

Second, while Section 58 may appear to grant the highway authority an unanswerable defence, if it can be shown that it was likely that a defect was there to be seen at the time of the inspection, but was missed, the Section 58 defence will not succeed.

Three, if all the benefits of cycling are to be proclaimed, then those who are its advocates must also accept the burden, especially when fault falls upon them.  Highway Authorities ought to assess the claims which are presented to them and discharge their obligations promptly and fairly.  By so doing they would fulfill the duty which they owe not only to those whom they encourage to cycle but also to the Council Tax payers. 

© Paul Darlington,  Cycle-Aid, 27.iii.09.