Defending cycling pothole claims

A recent High Court ruling could help with the defence of cycling pothole claims, writes John Goodman.

How can the High Court appeal case of Robertson v Cornwall Council [2024] EWHC 2830 (KB) (06 November 2024), which has nothing to do with potholes, possibly help in the defence of the many cases we are seeing involving cyclists losing control due to a pothole, often with serious and even catastrophic injuries? 

Mr Robertson was cycling with his wife along a busy A road on 20 May 2018 on the outskirts of Redruth, when they turned into a cycleway ahead of a roundabout. The join between the carriageway and the cycleway was originally built flush with a line of kerbstones but, due to resurfacing works, the kerbstones were standing proud of the road surface, creating a lip of various heights along the join, more at the edges than in the middle. 

It was accepted before the accident that the transition from road to cycleway was unsatisfactory and even hazardous, and it had been agreed that works would be undertaken but they had not been carried out by the time of the accident. 

The claimant’s wife turned into the cycleway first and wobbled, but managed to right herself. The claimant, however, lost control and suffered nasty injuries, including a head injury. The height differential, which differed along the length of the joint, had never been properly measured so the court only had photographs to assess the issue of dangerousness.

Case at first instance

The claimant brought his claim in common law negligence alleging that the lip was a hazard and the setup, inviting cyclists to turn into the cycle lane, consisted of a trap. Furthermore, the council knew of the hazardous setup and had agreed to rectify it.

How could the claimant possibly lose such a case? He lost at trial on two grounds:

• The trial judge found that the gap was nowhere near as severe towards the middle of the crossover between road and cycleway as it was at either end, and it was, in fact, fairly close to flush towards the middle of the junction; and
• the claimant had not proved causation in that he failed to prove that he lost control due to a raised kerbstone. There was no direct witness and he himself suffered from amnesia. There were many reasons why he may have fallen. 

Appeal

The claimant appealed on the basis that both of the above grounds for dismissing the claim were plainly wrong. The High Court dismissed the claimant’s appeal and its reasoning is, in my view, potentially useful when defending not just crossover cases like this, but pothole cases too. I shall explain why. 

On the causation point, the High Court agreed with the claimant - there really was no other explanation offered for the loss of control and, on the balance of probability and as a matter of common sense, it accepted that the claimant lost control due to this lip. If causation had been the only reason for the trial judge dismissing the claim, the appeal court may well have overturned the finding.

But what is really interesting to those of us who defend cycling claims is the High Court’s finding on the first issue of dangerousness. The claimant argued that it didn't matter in the slightest that he couldn’t show which kerbstone he crossed as the whole line was hazardous, so the join overall was a danger and indeed had been accepted as such by the defendant council before the accident.

The High Court dismissed the claimant’s argument. It held that the trial judge was entitled to reject the claimant’s argument that the whole length of kerb was a hazard. To say that anything other than flush was a hazard was a “gold standard” which the judge had been entitled to reject. The fact of the fall also did not necessarily prove that he had crossed at a hazardous point in the kerb. Accordingly the judge was entitled to find that the claimant had not proved that his accident was caused by a part of the kerb which amounted to a hazard or danger. 

Using Robertson to defend pothole claims 

This case does not make dramatically new law, but it is a timely restatement of an important principle. But how does it help in the defence of pothole claims when a cyclist loses control in them? We had here a long straight lip with varying height differentials along its length, rather than a pothole. But imagine you took that straight lip and curled it inwards much like – to use a seasonal analogy – the paper Christmas hat you may shortly be wearing. You now have a circle of varying height differences and if you put a hole in the middle, you would have a pothole. The point is that potholes are often classed as hazardous at say 70mm, when the actual height differential faced by a cycle wheel exiting the pothole is nowhere near 70mm, but really quite minor.

So it seems to me that this case assists defendants in making out an argument that a claimant has to show which exact part of a pothole he lost control on and that part has to be hazardous. Quite often a pothole which is apparently 70mm deep has actually only been classed as that measurement because of a height differential at its side, which has nothing to do with the route of the cycle wheel going through the pothole and coming out of it. A highway inspector should be entitled to assess a pothole on the basis of where the height differentials are compared to the likely line of travel and whether it is really a danger to cyclists and other highway users. This case provides support to defend such risk based decision-making by inspectors. A case to remember as you remove the Christmas hat from your Xmas cracker!

John Goodman is a partner at DAC Beachcroft.