I wrote this a year ago
As motorcyclists we are constantly having to look out for poorly maintained road surfaces, loose gravel, diesel spillage, pot holes in fact a whole manner of potential problems that can affect the balance, grip and stability of the bike, and therefore our own safety.
Where the roads have been poorly maintained, or there is poor signage, or inadequate advanced warning of visibility or debris, there are many that will advise you to sue the local authority. In some cases this course of action may well be justified, however, before everyone jumps on the bandwagon, remember that any potential legal action against the local authority will be drawn out with no guarantee of success.
Section 41 of the Highways Act 1980 imposes a duty on the local authority to maintain a road. Section 58 of the Highways Act 1980 goes on to say that there will be a statutory defence if the Highways Authority has taken ?such care as is in all the circumstances reasonably required?.
The issue of liability against the Highways Authority has recently been highlighted in the case of Gorringe v Calderdale Metropolitan Borough Council (2002).
In Gorringe, the Claimant was involved in a head-on collision with a bus on the crest of a hill in West Yorkshire. On the approach to the crest there was a point at which the road dipped gently and turned to the right before rising uphill to the crest. Before the dip the course of the road was clearly visible. However, once in the dip a driver could not see the road beyond the crest until virtually at the crest, and in particular drivers would not be able to see the sharp left hand bend at the crest and a sudden change in gradient and the adverse camber.
Although a sign informing drivers of an uneven road surface stood between the dip and the crest, there had also once been a ?SLOW? road marking which was found to be no longer visible as a result of wear and tear and/or resurfacing.
At first it was held that the Council had breached its duty to maintain the highway and the fact that it had failed to repaint the road markings were sufficient to find in favour of the Claimant. However the Court of Appeal decided that a road marking was not part of the physical or structural condition of the roadway and therefore lay outside the Council?s duty of care. The appeal was allowed.
This case suggests that the odds may be somewhat stacked against us, as you would think that advance warning signs are an important part of our decision making process - but all is not lost. Section 39 of the Road traffic Act 1988 makes it a requirement for every local authority to carry out a programme of measures designed to promote road safety. They must carry out studies into accidents arising from the use of vehicles on any road other than trunk roads within their area and, in light of those studies, take such measures as appear appropriate to the authority to prevent such accidents. This will include the construction, improvement, maintenance or repair of roads for which they are the highway authority.
In the case of Lavis v Kent County Council (1992) a motorcyclist suffered severe injuries when he collided with a kerbstone on a sharp bend. The rider claimed negligence against the Council for failure to erect various signs warning motorists of the bend. The Council succeeded initially in having the case dismissed, but the rider appealed. The appeal was successful as the Court of Appeal concluded that the Road Traffic Regulations Act 1984 imposed a duty on the authority to take reasonable care in implementing the requirements of the Act. They had taken no appropriate steps at all.
However, in 1994 the Council faced a similar claim! It was alleged that the authority was responsible for the Claimant?s accident in that it failed to erect a road sign in addition to the double broken white lines already in existence thereby providing warning of an approaching T junction. In the absence of evidence from a competent road engineer, the Claimant (Mr Lavis) failed to establish that any additional warning was necessary. The claimant was found wholly responsible for his accident.
The local authority does have a duty of care to keep our roads in a serviceable and safe condition but it is not always a cut and dried issue. In the majority of cases liability will be strongly, and quite possibly successfully, contested.
If you feel that there is a case to answer and you want to start the ball rolling, make sure you are properly advised ? and be prepared for a long drawn out fight. More importantly don?t be surprised if the end result is rather different to what you expected!
