A High Court judge has rejected a claim brought by a cyclist against a highways authority for personal injuries and loss suffered as a result of an accident on a bend in the road.
The accident occurred in March 2016. The claimant, then aged 50, suffered personal injury when he was riding his bike north along Mangrove Lane, Hertford, Hertfordshire.
As he rounded to his left a 90 degree bend bounded by hedges he collided with a Ford Transit van driven in the opposite direction. There were three passengers in the van. No fault was suggested on the part of the driver of the van.
In Nash v Hertfordshire County Council  EWHC 3247 (QB) the claimant contended that the collision was caused by the condition of the road surface. He said he did not hit or make contact with a pothole but had to take avoiding action and swerved to avoid potholes on the inside of the bend (to his left as he approached) thus forcing him into the path of the oncoming van.
There was no dispute that the impact point was to the claimant's offside and beyond the centre of the road. The precise point was however not agreed by the expert witnesses.
The claimant said the defendant, Hertfordshire County Council, failed to ensure the highway was in a reasonable state of repair so that the potholes represented a real source of danger. The claimant contended that the accident was caused by the council’s negligence and /or breach of statutory duty to maintain the highway pursuant to S.41 Highways Act 1980.
He asserted as factual issues;
(i) At the time of the accident there were defects in the road surface that represented a danger to road users and in particular cyclists. As a consequence, there is a breach of the duty imposed by S.41.
(ii) Those defects were the cause of the accident.
(iii) The last inspection of Mangrove Lane carried out on the 20 August 2015 was defective and not performed correctly. There were defects at the scene that should have been noted and recorded as category 2 defects and repaired.
(iv) The defendant's highways maintenance policies were deficient because category 2 defects were not considered and repaired appropriately and therefore the S. 58 Highways Act 1980 defence available to the defendant was not proved.
(v) In addition, he asserted that Mangrove Lane was incorrectly classified and due to the traffic use, location and nature of the road it should have been designated as a class 4a Link Road in accordance with the Code [Well Maintained Highways – Code of practice for highways maintenance Management 2013]. If so a quarterly inspection regime would have been adopted for Mangrove Lane and not annually as had taken place. Thus, it was said defects in the carriageway would have been found and repaired before the accident. As a result, the statutory defence was not made out.
The defendant highway authority submitted that the sole cause of the accident was not the surface of the road but the riding of the bike by the claimant. The council said he rode too fast and too wide around the corner.
The council said this was what the claimant told a police officer on two occasions shortly after arriving at hospital. It argued that despite being seriously injured he was lucid and gave a clear account of what had happened. Unfortunately, the claimant's condition deteriorated after this time when he suffered a stroke. Hertfordshire said whatever defects were present, and they accepted some were, they played no part in the accident.
In addition, the council said:
(i) The potholes at the scene were not dangerous given their size and location accordingly there was no breach of S.41.
(ii) Even if there was a breach of S.41 the potholes were not the cause of the accident
(iii) Mangrove Lane was correctly designated as a 4a rural access road and that the annual inspection on the 20 August 2015 was carried out correctly. The council said the defects that were at the scene at the time of the accident had developed over the intervening seven month period from August 2015 to March 2016.
(iv) If they were wrong about (ii) above and there were potholes located on the nearside of the bend that may have been of such depth that they were in a state of actionable disrepair and therefore dangerous the defendant had taken such care in all the circumstances as was reasonably required of them to ensure that the lane was not dangerous to traffic and therefore could rely upon the statutory defence of S.58 Highways Act 1980.
HHJ Lickley QC, sitting as a judge of the High Court, found for the defendant highway authority.
The judge said he found himself in a similar position to the judge at first instance in Walsh v Kirklees  EWCH 492 who stated that 'there is in my judgement simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say it is more likely than not that it presented a real source of danger in the sense identified in Mills v. Barnsley MBC (1992) PIQR P289. ..'
HHJ Lickley QC found that:
- There were no recordable defects at the scene on the 20 August 2015. On balance the defects that were present on the day of the accident emerged over the seven months between the inspection and the incident as described. There was no defect present in the carriageway on the 20 August 2015 that would have been categorised as a category 1 or 2 defect.
- The evidence led him to conclude the depth of the three larger potholes was less than 40mm but on balance more than 30mm.
- In assessing the danger he took the following into account. “Mangrove Lane is a country lane where vehicles would struggle to pass each other. I accept that some defects in the carriageway were to be expected. The defects were to the side of the road and allowed approximately two thirds of the road width to pass without the need to make contact with the defects. Although the section of road had defects as described I assess the level of risk as low. Balancing the private and public interests and bearing in mind all of the circumstances I do not conclude on the balance of probabilities that these defects represented the sort of dangers which an authority may reasonably be expected to guard against. The road was not in a condition which exposed to danger those using it in the ordinary way. The potholes and other defects individually or collectively did not present a real source of danger in the sense identified in Mills."
- Accordingly, he found there was no breach of S.41 Highways Act 1980.
Even if there had been a danger to persons using the road as described in Mills and a breach of S.41 the judge found he was not satisfied on the balance of probabilities that the claimant's account was correct.
"The accounts he gave to PC Jacob reflect what happened. The claimant was unfortunately riding his bike too fast and too wide as he came around the bend thus preventing him from stopping in time and he collided with the van,” HHJ Lickley QC said.
“Despite his injuries, undoubted pain and that he had been given medication he did not mention the potholes in the time when was with the officer as playing any part in his accident. I conclude that if the potholes had played any part in his unfortunate accident he would have mentioned that fact in the time he spent with PC Jacob which covered time at the scene, the journey from the scene to hospital in London and then for a time within the hospital.
“For some reason that morning he chose to cut his journey short and to go home having cycled past the scene of this accident a few minutes before albeit in the opposite direction. The potholes played no or no material part in the cause of the accident I conclude. I therefore reject the Claimant's account. He was not travelling at around 10mph as he stated but considerably faster.”
The judge said that, accordingly, it was not necessary for him to consider the S.58 defence.
He added "for completeness" that in his judgement Mangrove Lane was correctly classified as a 4a rural access road within the roads hierarchy at the time.