One morning in December 2014, David was making his way to work by bicycle. It was early morning, had been raining and it was dark. David was a keen and experienced cyclist. He was cycling on the A803 Polmont to Linlithgow road. A few metres before the junction with the B825 near to Linlithgow Bridge, David came across two large potholes. He managed to bunny hop over the first one but landed in the second as a result of which he fell from his bicycle sustaining significant orthopaedic injuries.
The pothole, measured the following day by his wife, was 45cm long by 30cm wide and in excess of 90mm deep.
David contacted Cycle Law Scotland and asked for our help.
The first thing we did was request information under Freedom of Information from Falkirk Council. The documentation revealed that the road had been inspected on 19th August, 25th September, 20th October, 18th November, 24th November and 17th December 2014 as well as 19th and 20th January 2015. The roads inspector had not picked up any defects until 19th January 2015.
Interestingly, Falkirk Council, similar to many Roads Authorities adopted a system of regular inspection, maintenance and repair of their carriageways. The principles adopted are set out in “The Code of Practice, Well Maintained Highways”. The Roads Authority said that the road was inspected once a month and, if defects were noted in excess of 40mm, they would have been identified and repaired.
Undeterred, we went to talk to local residents and asked them about the state of the roads and their recollection as to when the potholes had first appeared. Witness statements confirmed that the potholes had been in existence for at least 9 weeks prior to the accident.
Following submission of this information, Falkirk Council’s Loss Adjusters agreed to deal with David’s claim and effectively admitted liability. On that basis, their inspections had to have been careless or perhaps the roads inspector should have gone to Specsavers.
We submitted a proposed settlement figure but the Loss Adjusters would not agree it.
We were therefore forced to raise proceedings on David’s behalf in the All-Scotland Personal Injury Court but were immediately faced with a defence. The solicitors acting on behalf of Falkirk Council maintained that they had an inspection regime where inspections were carried out under terms that were reasonable and that the pothole must have arisen between the date of the last inspection on the 20th November 2014 and David’s accident.
Having been around this loop once already, we explained that we had submitted witness statements and that liability had been admitted. We were forced to instruct a specialist road surface engineer as our expert to produce a further report at significant cost.
Following submission of the report and out of the blue, an acceptable offer was made in settlement which was accepted by David.
The case was raised in court in June 2016 and settled four months later.
What is astonishing about this case is the roller coaster experience of “no”, “yes”, “no” and then finally a “yes” for David.
David had this to say:-
“My sincere thanks to you and your team for your diligence and perseverance. It’s been a long haul. I was under no illusions from the outset how difficult it would be to prove negligence and it’s to your credit you achieved a positive outcome. I enthusiastically endorse the service you provide to fellow cyclists and offer my best wishes with the presumed liability campaign. Kind regards.”