My motorcycle hit a pothole – can I claim compensation?

Potholes – the scourge of motorists throughout the country.

It’s annoying enough when we hit them in a car, but when we hit them on a motorbike, the consequences can be far worse. For one, the likelihood of losing control and coming off your bike is often a near-certainty, so the injuries and damages are often far worse.

So, if you have hit a pothole as a motorcyclist and been injured as a result, what can you do?

It’s that time of year when the wet and cold can cause potholes to pop up out of nowhere. They are typically formed when water seeps in to gaps in the road surface and then expands when it freezes (usually overnight), and cracks open the concrete to form holes in the road.

They can literally appear overnight.

Unfortunately, the law in terms of making a claim for compensation if you hit a pothole as a motorcyclist is not on your side. In fact, it’s likely you will not be successful in making a claim.

As much as we don’t like to be the bearer of bad news, we’re all about being honest with our clients and with people who seek our help, which is why it’s important for you to know this, and why we would rather be upfront with you.

The law

Under The Highways Act 1980, local highways authorities have a duty to take reasonable steps to prevent users of the highway being injured. Reasonable steps are seen as having systems of regular inspection and maintenance, and making sure that reported potholes are dealt with in a timely fashion.

How often highways are inspected is usually down to how busy the area is. For example, a city centre highway may be inspected every one to three months, whereas a country road may only be inspected every 9-12 months.

As portholes can develop in hours, one could develop within days or weeks of an inspection, meaning it won’t get picked up until the next inspection, which could be as long as almost a year on.

And therein lies the problem.

Special Defence

The highways authority can deploy a special defence to claims where they can demonstrate that they have a system of inspection that is deemed as reasonable, and where they can show that it has been adhered to. So, if you hit a pothole on November 1^st, and the road it happened on has a six monthly inspection regime, and the last inspection was July, you’re probably going to find it hard to win the claim since the last inspection was around four months ago.

If that system of inspection has been adhered to, and that pothole wasn’t there in July, meaning it must have assumedly appeared between inspection periods, the council have a defence which is nigh impossible to overcome.

What about a failure to respond?

If a pothole is reported, the responsible highways authority must make good the area as soon as they reasonably can.

In law, there is no real determination of what “reasonable” can actually be defined as, but we often see it as between 6-8 weeks at most. Even that isn’t fast, but it could be accepted as reasonable by a court, and that’s the way we have to judge these things.

How do I best prove my case?

You have to be very clever and considered in your approach if you want to give yourself the best chance of winning a highways act claim.

Take very detailed photographs of the pothole showing clear measurements in terms of depth, width, and length. Make sure the photos clearly show the size of the pothole, and make sure you do this safely. We do not recommend you stand in the middle of a busy road taking photos and measurements, and we do not recommend you take any action that can put yourself in danger.

Use Google street view to see if the pothole has been there a long time. Believe it or not, we have won cases using this as evidence when a highways authority has claimed to have adhered to their system of inspection, but Google street view proved otherwise.

On an additional side note, if the pothole is less than an inch deep, the council could defend the claim on the basis that the pothole is below what is reasonably expected to be repaired. The “one inch rule” is not a hard and fast rule in law, but it’s the generally accepted guideline principle.

What to do

Once you have the photos, contact us, and we will assess the prospects of the case. We normally can’t assess a case without detailed photos.

We do have ways we can try and tell whether you have better prospects based on system of inspection before you make the claim. Once you claim, that pothole will probably be repaired as quickly as possible.