E-scooters and Potholes

John Bennett
John Bennett

Published: December 2nd, 2022

7 min read

The Times has recently published an article about an e-scooter rider making a claim against Barnet Council when the rider fell off as a result of a pothole in the road.

There are some interesting arguments raised about the fact the rider was using it illegally. There are a number of cities where their use is legal, however they have to be hired from registered organisations who provide insurance.

Using a vehicle illegally shouldn't, in itself prevent a claim, after all, it is not the illegality that has caused the injury, it is the pot hole. There are exceptions to this. Something known as ex turpi causa (no action can result from an illegal act) can apply. As a general rule that applies to using a vehicle in the furtherance of a crime, for example, a getaway vehicle.

Interestingly there is no refence to the defect and how long it has been there. Section 41(1) of the Highways Act, 1980 requires "The authority to maintain the highway."

Section 58(1) gives them a defence if they can prove they have "taken such care as in all the circumstances is reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic."

This translates into inspections to check for dangerous defects. A defect has often been considered as being dangerous if it is more than an inch deep or protruding above the surrounding surface by more then an inch. This is not a hard and fast rule. Each one is different. It must be considered dangerous to the ordinary person.

A local authority should have a guide as to how often they inspect the highways in their area. It varies, but in the town centre or on a busy A road, at least once a month, other roads can be every 6 or 12 months. The further away from the town centre the less frequent.

Sometimes these inspections are done by car and sometimes on foot. If a defect is located, steps will be taken to repair it. Depending on how bad it is, it may not be repaired straight away but it should be repaired in a reasonable time, fenced or marked to warn of its existence.

There is an exception to this. If between inspections the defect has been reported and is considered dangerous, there is duty to repair. If it takes too long to repair, the Highway authority could be liable if any one is injured as a result of tripping over it.

It may well be that in this particular case Barnett council did not have a system of inspection and accept there was an actional defect.

If you have suffered an injury as a result of a defect, you may be able to pursue a claim. Good photographs of the defect showing its depth will be vital in proving it was dangerous. Evidence to prove how long it has been there will help. If it has already been reported, evidence of when and to whom it was reported would be vital.

If you, a friend or family member have suffered an injury as a result of a trip or fall caused by a defect, you may be entitled to claim compensation. Here at Forbes we offer no win no fee advice. Please call one of the team if you have suffered injuries.

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