Cycling and the law: How is a judge likely to assess a claim for compensation following an accident caused by a pothole during a sportive? An example from case law

As a personal injury solicitor who represents injured cyclists as well as being involved in sportives myself, a topic that often comes up is: ‘how might a participant’s claim for compensation be dealt with should a rider be injured during the event?’ The short answer is that it depends on the cause of the accident.

I don’t bring this up just out of personal interest, but also to challenge the perspective of those who believe we have a ‘compensation culture’ in this country; something I’m always keen to dispel by looking logically at real-world examples to show that having an accident doesn’t automatically lead to an award for compensation.

One such real-world example, involving the Prudential RideLondon 100-mile sportive, caught my attention as an ideal way to demonstrate how the legal test for accidents caused by defects in the road is applied.

The case involves an accident during a closed road sportive that could happen to any of us and, most importantly, the decision eventually reached by the courts stands as a good legal test which judges should apply in the future when analysing the duties of a highway authority to maintain our roads.

I found the case particularly interesting because it works through the legal test judges should apply when analysing the duties we, as participants, are owed by local authorities, and the weight that should be given to evidence from event organisers and, in this case, Thames Water as well.

The accident

So, what happened? On 4 August 2013, during what is perhaps the biggest closed road sportive in the country, with 16,000 riders in attendance, Mr Hilliard was injured when a depression of 30mm (more than an inch) in the centre of a lane and near to a water hydrant cover caused him to fall off his bike.

Subsequently Mr Hilliard brought a claim against the relevant highway authority, Surrey County Council, alleging they had failed in their duty to maintain the highway. The following precautions had been taken before the event:

• RideLondon organisers had carried out inspections of the road and reported defects to the Council. Surrey County Council’s policy was that anything over 40mm in depth was repaired. Other defects were to be monitored for deterioration;
• Thames Water had commissioned an inspection of the road on receipt of notice from the Council. They looked at the road surface from the perspective of a pedestrian, and logged the defect which caused Mr Hilliard’s accident as a ‘trip hazard’; and
• RideLondon organisers then carried out a further inspection of the course before the event and the defect which caused the accident was not mentioned.

What was the decision?

The lower court found the Council had failed to maintain the road, and as a result Mr Hilliard was awarded £38,500 in damages. However, this decision was then appealed by the Council and the decision as to whether the Council had breached the duty to maintain the highway was reconsidered.

The Council’s appeal was successful, and Mr Hilliard did not receive any compensation for his injuries or financial losses. Why the change?

First of all, the judge hearing the appeal set out the correct test as to whether or not the Council had failed to maintain the highway. It required an assessment of whether it was more likely than not that the highway authority had failed to maintain the road in such a state of repair so that it was reasonably passable for the ordinary traffic of the neighbourhood without its physical condition causing a potential danger.  This test has been explored in other cycling cases that I have written about elsewhere.

Next, the judge dealt with the reference in the Thames Water report to the defect constituting a ‘trip hazard’. The judge hearing the Council’s appeal felt that undue weight had been given to this by the first judge, given that the report made mention of this in the context of pedestrians using the road, and was not the test to be applied when considering whether the road was dangerous for ordinary traffic.

Finally, the judge referenced that, before Mr Hilliard had his accident, 12,400 riders had passed the defect without any issue – another piece of important evidence as to whether the road was ‘reasonably passable for ordinary traffic’ and the inspection by the RideLondon organisers shortly before the event did not identify the defect.

The decision in context

Mr Hilliard’s case can be contrasted with the case arising out of the tragic death of mother of three, Mrs Kate Vanloo, in January 2016.  Mrs Vanloo was cycling home from a training ride with her triathlon club when she struck a pothole which caused her to fall from her bicycle into a collision with an oncoming vehicle.

The pothole Mrs Vanloo struck was 4 inches deep, extended the width of the road and was concealed by a puddle. In other words, she didn’t stand a chance.

Inspection and maintenance of the highway was the responsibility of Warwickshire County Council, and the pothole had been identified as requiring repair prior to this incident. Inexplicably, the Council did not repair it within the proper timeframe and, when the repair was eventually ordered, the subcontractors went on to repair a different pothole.

The most depressing part of all this is that Mrs Vanloo’s death was entirely avoidable. The Council has been ordered to pay £388,000 – to her dependants, relatives and the estate. I don’t know those precise details about the award and Mrs Vanloo’s circumstances.

The distinction to be drawn between these cases is that the pothole in Mrs Vanloo’s case rendered the highway dangerous for ordinary traffic, and on analysis of the Council’s own records, should have been repaired before any of this happened.

As a cycling accident solicitor, I feel very sorry for Mr Hilliard. He was very unlucky in that he was injured through no fault of his own as a result of encountering a defect in the road during the sportive. Unfortunately it was too small a defect for him to be successful in his claim for compensation.

However, I tend to agree with the judgment in this case, especially because over 12,000 riders had passed this point in the road with no issue. If Mr Hilliard had been successful it would likely have imposed too high a standard of repair for local authorities to meet.

Perhaps this case demonstrates that we don’t really have a ‘compensation culture’, despite what some newspapers might have us believe, and that there are many injured cyclists like Mr Hilliard who have been extremely unlucky but ultimately lose out on compensation for their injuries and consequential losses if they are unable to satisfy the judge that liability is proved.