Over the bars - bicycle accidents caused by potholes

I was on bikeradar.com today and made a response to this thread and

thought I would share with you the information I was able to give the

poster.

After explaning that I am a cyclist but also a solicitor spcialising in

cycling claims I advised that I have came across this type of situation

many times before.

The short answer to the poster's question is, yes, potentially he may have

a valid claim.

There are a number of factors to consider in whether any claim such as

this would succeed.  Firstly, it muct be establish that a pothole was

"dangerous" in a legal sense and as such is a pothole that a local

authority should repair.  Typically the "intervention level" on public

highways is considered to be in the region of about 40 millimetres.

Therefore a pothole one metre wide and five inches deep would, in my

experience, be considered "dangerous".

A local authority can have a defence to a claim however if they can

establish that they had in place a "reasonable system of inspection and

repair".  The reasoning behind this is that no local authority can inspect

all of their roads constantly.  If they can prove that they are

periodically inspecting the roads and repairing "dangerous" defects as and

when required then they may have a full defence to any claim.

Another user correctly highlights that the frequency of inspections is

dependent upon how busy a road is deemed to be.  As the poster described

the road as a quiet country road I would say it is likely that the period

of inspection would typically be every 6 to 12 months (although this is of

course a guess based upon the information given and would need to be

investigated further).  Also, although a pothole may have been present at

a previous inspection, if it was not "dangerous" at that time then

technically a local authority would not be responsible for repairing it.

The poster mentioned dropping off their bike at a house close to the

accident scene.  It may be worth, when the poster collects the bike,

speaking with the house owner to see if they know how long the pothole has

been present and if they would be prepared to give a statement to any

solicitor who they may appoint confirming this.

The truth is that these types of claims can be very difficult.  Personally

I am finding that in the current economic climate Judges are even more

reluctant to award compensation to victims of accidents such as this when

most local authorities in the country are themselves struggling.  I do not

necessarily agree that this is correct, however, this is the situation I

am personally finding as a solicitor.

I think it is probably worth the poster speaking with a solicitor to

consider this further.  It would be helpful if, before speaking with any

solicitor, the poster has full photographs showing the measurements of the

pothole.

As to whether the poster should continue making investigations with the

council directly, I would was of the opinion that they should withhold

from doing this until they have spoken with a solicitor so as to prevent

putting anything to the local authority which may prejudice a potential

future claim.

Hit and run - how to claim from the MIB

I was on cyclechat.net today and made a response to this thread and

thought I would share with you the information I was able to give the

poster.

After offering my sympathy and expressing my low opinion of hit-and-run

drivers I explained that I am a cyclist but also a solicitor specialising

in cycling claims.

I could see that the poster had already spoken to a legal representative

which is the sensible thing to do, and I am sure that they will have

already provided the poster with some very sensible advice.

In a situation such as this where a hit-and-run driver is responsible it

is vital that the victim reports the accident to the police as soon as

possible, which I could see the poster had already done. If involved in a

hit-and-run a person should try to make sure that they get the name of

whichever police officer or representative they have spoken to, together

with full incident reference numbers so that reports can be traced later

if needs be.

The police will try to trace hit-and-run drivers and, if they are able to

do this, then any personal injury claim and claim for any damage to

property (for example the cycling trousers) can be pursued by a solicitor

directly against that individual.

In reality however, it is often impossible for the police to trace the

driver responsible in a hit-and-run if the accident was not caught on CCTV

or if there were no witnesses. If that were the case then the poster may

be in a position to pursue a personal injury claim against the Motor

Insurers' Bureau (MIB).

The MIB are a central organisation funded by all of the motor insurance

companies. It is their role to compensate the victims of uninsured and

untraced drivers.

In the poster's situation, if the police are unable to trace the

responsible driver, it is likely that the MIB may agree to compensate

them. Certain solicitors may be able to help in submitting a claim to the

MIB however, as the costs which the MIB pay are very limited, not all

solicitors are prepared to do this.

There are a number of criteria which need to be met for a claim to the MIB

following a "hit-and-run" accident to succeed. Importantly, a claim for

personal injury must be reported to the police within fourteen days of an

accident and if there is a claim for property damage (i.e. the damage to

the cycling trousers) it must be reported to the police within five days

of an accident.

It is therefore best practice to report to the police, and to get

reference numbers, as soon as possible following an accident. If a

hit-and-run has not been reported to the police within these time scales

then, potentially, the MIB may reject to deal with a claim outright.

The MIB will investigate the circumstances, make enquiries with the

police, try to contact any witnesses et cetera. If the MIB are able to

track down the responsible driver then they will say the claim must be

re-directed, otherwise the MIB may agree to compensate for injuries and

will obtain a medical report to assess the appropriate amount of

compensation.

The important thing to remember following any hit-and-run incident is to

report it to the police as soon as possible and thereafter seek legal

advice urgently. It is possible to submit an MIB claim to the MIB directly

without using a solicitor, however, a solicitor will be able to provide

advice upon any technical arguments raised by the MIB and upon any offers

put forward by the MIB.

Small claims proceedings against the insurance company

I was on bikeradar.com yesterday and made a response to this thread and thought I would share with you the advice I was able to give the poster.

After explaining that I'm a keen cyclist but also a personal injury solicitor specialising in cycling claims, I was glad to see that he was not seriously injured. I understood from his post that he was not interested in claiming for personal injury but was simply seeking to recover the cost of repairing his bike and the damage to his property.

I could see that he had commenced small claims proceedings against the insurance company and that, as is usually the case, the insurance company had failed to acknowledge service of those proceedings within the initial period thus allowing him to obtain a judgement in default. As I understood it however, the insurance company had instructed their usual solicitors to seek to defend the claim.

The solicitors will be able to apply to set aside the judgement in default which he has obtained.  They will make their application to the Court in writing and this will be considered by a Judge. In order for their application to succeed they will need to prove that they have "a real prospect of successfully defending the claim" or that there is some other good reason why they should be allowed to defend the claim.  They will also need to show that they have made their application to set aside judgement promptly.

Thankfully, he had listed his various letters to the insurance company in a letter to the Court and sensibly included copies of the same.  He will need to await the Court's response which will probably not be until the New Year.  Unfortunately however, in my experience, default judgements are often set aside quite easily.  If this happens it is likely that a Judge will also make an order that the insurance company's solicitors file their defence within a set period of time.  The Judge will also either at that stage, or after the solicitors have filed their defence, make a list of "directions" which all parties must comply with up to a final hearing.

Directions usually include an order that parties exchange statements and it would then be a case of parties attending a small claims hearing.  Unfortunately, as he is claiming against an insurance company it is likley that the driver of the car that hit him would be present with a solicitor as the solicitor would be paid for by the insurance company.  However, in my experience of small claims matters, Judges are often particularily helpful to unrepresented parties such as this gentleman and will usually guide them through the process (it is not expected that individuals will have legal representation in the small claims court).

In theory it is possible that, if the default judgement is set aside, when the insurance company file their defence it may include a counter claim against the gentleman.  If this is the case then he should speak with his own household insurer urgently, however, in my experience, it is unlikely for a counter claim to be made in circumstances such as these.

Also, if this claim were to go to a small claims hearing, as another forum member has mentioned, there is a possibility that fault could be apportioned between the cyclist and the driver.  Accidents which occur on roundabouts are notoriously difficult but he will need to be clear in his descritption of the accident and hopefully the Judge will find in his favour.  Unfortunately however, if the Judge is simply unable to decide that one party was more at fault than the other then it is quite possible that the claim may be settled on a "50/50" basis which would effectively see him recover 50% of the full value of his claim.