For the sake of a £10 pothole repair

Alan was cycling on an unnamed lane near Drumoak, Aberdeenshire on 1 October 2020.

His last memory was moving towards the middle of the road to avoid a puddle and, in doing so, he hit a pothole large enough to cause him to fall over his handlebars and sustain serious injury. The pothole was submerged in water at the time, and could not be seen. Photographs taken 4 days later show the sheer depth of the crater which was a significant hazard.

He was found unconscious on the road by members of the local SSPCA rehoming centre who called an ambulance.

Alan had knocked out his front teeth, sustained a broken wrist but also suffered permanent tinnitus and a psychological reaction. He spent months off his bike, and required teeth extracted and a denture fitted. He will need dental implants in the future.

Often when clients contact us regarding incidents involving potholes, they ask, “Do I have a case?” At the outset, our answer is normally, “I can’t tell you yet”. In order to prove a claim for damages against the roads authority, Aberdeenshire Council in this case, we have to be able to show that the Council knew or ought to have known about the pothole prior to the incident, and ought to have done something about it which would have prevented the crash from happening. The difficulty in cases involving potholes is often proving how long the pothole has been in a dangerous condition prior to the incident.

When Alan contacted Roz Boynton, Associate Solicitor based in Aberdeen, she agreed to take on the case and see what we could find out.

We started by submitting a Freedom of Information Request to Aberdeenshire Council and this showed that the Council had been aware of the pothole since at least February 2020.

Another cyclist had been involved in an incident caused by the same pothole and had sent a report, together with photographs of the pothole and photographs of the injuries he had suffered.

From there, the Council had inspected the pothole, taken photographs, estimated a repair cost at £10 and considered it to be a Category 4 ‘low risk’ pothole requiring ‘programmable repair’ – i.e. we will get round to it when we get round to it.

What was even more staggering was that Council employees had visited the pothole to update their records on four separate occasions prior to Alan’s incident and rather than simply effect a quick repair, they had simply recorded the same details – no urgent repair required!

Roz is a keen cyclist and often cycles in the area around Drumoak. She asked members of her cycling club, Aberdeen Wheelers, if anyone had been aware of the pothole prior to Alan’s accident. To her surprise, one of her club mates was able to refer her to a friend of a friend who had suffered a cycling incident at the same pothole back in August 2019 and was able to put Roz in touch. That cyclist had actually taken photographs of the pothole at that stage which proved that the pothole had been in a dangerous condition for nearly 14 months prior to Alan’s accident.

Next, we needed to identify and make contact with the cyclist who had suffered an accident in February 2020. With the personal details of the report redacted by the Council – Roz had little clues to go on other than a photograph of a pothole and reference to the cyclist being a member of a cycle club.

There are few cycle clubs in Aberdeen and Aberdeenshire, so Roz got to work by contacting the other clubs in the area to see if anyone recognised the report.

Having contacted Deeside Thistle Cycle Club, the largest cycling club in the area, they were able to put a note out to their members and through that, we were able to track down the cyclist. The cyclist was happy to give a statement but was surprised to hear that having reported his accident to the Council in February 2020, no action had been taken, allowing a further cyclist to have suffered a similar incident.

We instructed a Highways Maintenance Consultant who was highly critical of the Council categorising the pothole as being ‘low risk’, given that they already knew it had caused at least one cyclist to suffer injury. The Consultant considered that the pothole presented a hazard as far back as August 2019 and ought to have been noted at the last routine inspection of the road in December 2019 and repaired in early 2020.

Armed with all this evidence, we invited the Council to make a settlement to Alan for his injuries and losses. It seemed clear to us this was a case where there was a weight of evidence showing the Council had failed in their duties. However, there was no response from the Council, their insurers or their Solicitors and we were forced to raise Alan’s case at the All Scotland Personal Injury Court with a Proof date fixed for February 2022.

Despite the evidence very much pointing at the Council being legally responsible for Alan’s accident and injuries, we were astonished that the Council did not accept invitations to resolve the case at an early stage.

Indeed, the Council denied responsibility throughout stating that although they were aware of the pothole and aware of a previous incident involving injury to a cyclist, they were correct in their assessment that it presented a low risk to road users.

Only the day before the Proof date, when all the witnesses were ready to give their evidence to the Sheriff, was the case settled by the Council for the same sum proposed to them some four months prior.

In refusing to deal with this case at an early stage, just as they failed to repair a simple pothole at an early stage, this ended up costing the Council significantly more as they will be obliged to pay not only Alan for his injuries and losses together with interest, but also our legal expenses for the full case. All for the sake of saving £10!


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