advice on fighting a Council - Gertrude

[Gertrude]

Hi

I am trying to help my brother in law who is an advanced motorcyclist of many years. He also teaches people to ride bikes.

22/4/06 He struck a large hole alongside a manhole cover. He nearly came off and bike wheel rim was buckled. Took this up with Merthyr Tydfil CBC who sent claim forms. Estimates were sent to their legal reps who are B4. B4 advised him that the manhole cover had been replaced and surrounding area temporarily reinstated on 1st August 2003 by their client Welsh Water. As of the date of his incident (22/4/06) a permanent repair had not been completed. He has taken excellent pictures of the damaged wheel and pot hole.

He contacted Welsh Water who has said they have checked their work planning records for the last 5 years and confirms no report of this defect has been received. This cover is not a fresh water cover.

He wrote back to B4 on 19/11/06 stating that the ball has been put back in their court etc and was going to take them to small claims court.

Letter back from B4 stating that the Council have in place a reasonable system of inspection for the location concerned they will be said to have a defence to the claim. As we have previously advised the law relating to this is contained within the Highways Act 1980.

 

Please could anyone give me advice if this is worth persuing (if my brother in law has not left it too late), I feel it is, but dont know enough about the law. Going by the pictures of the pothole I would think he has every right to claim back money for repairs.

thanks

Gertrude

[buzby]

As a motorcyclist too - I'd love to say go and get them, but the reality is very different. Only if the council received a valid complaint about the pothole PRIOR to the accident, and did nothing about it, would there be a valid claim.

 

They are legally obliged to to inspect their roads on a regular basis, so under FoI could try to force the point by requesting any records pertinent to the surveying of the roadway and any complaints within a specified time-frame, but if this didn't turn up anything unusual, then you are no further forward.

 

You also have the possibility that, even IF the council was found in error, any award could be reduced by up to 50% due to the fact the victim should have noticed the approaching pothole and acted accordingly to avoid it. (Yes, I know, what a car can avoid and a bike are completely different but this often is trotted out and accepted.

 

If not challenged in this way, we'd have an army of professional potholing bikers driving into them on purpose and suing the council.....

[Guest ArthurP]

Always check in the first instance that the particular road is indeed the responsibility of the council to maintain.

 

Very often a council will maintain a road but it is not actually theirs to do-which was the case for a road near me in south Wales with a similar scenario to yours.

[Gertrude]

Thank you Arthur P and Buzby for your relplies, I knew there would be a biker out there somwhere. The pothole is around the edge of a manhole cover which was replaced by Welsh water and it was only a temporary reinstatement (on 1st Aug 2003 and the accident happened in APril 2006)). Council said they have taken reasonable measures to maintain the road by having a system of inspection and repair. The pothole was 75mm deep and 300mm long and 150mm wide. I can't believe they are allowed to get away with this. I dread to think what whould have happened if a cyclist had hit this. I am going to investigate further.

thanks Gertrude

[Rob S]

Gertrude, it might be worthwhile contacting either the BMF (British Motorcyclists Federation) or MAG (Motorcycle Action Group) on this one. They are both lobby groups who represent riders rights and they will have some expertise in this matter.

 

www.bmf.co.uk

 

 

MAG UK

[Gertrude]

Thanks Rob S

I will do just that

Gertrude