LawTalk Blog

Bike riders v pot holes

bike accident compensation

We are frequently asked questions from cyclists who have suffered damage either to their bike or themselves after coming to grief on a pot hole in the road or on some other defect on a footpath or road surface.

Generally speaking there is no claim in such a circumstance.  The old Common Law in this area drew a distinction between misfeasance and nonfeasance.  That is traditionally a Council (the body in charge of maintaining and repairing roads and footpaths) had no duty to repair a defect but could be held liable if it did repair a defect but did so negligently and that negligence caused an accident (misfeasance).

That old Common Law position has now been enshrined in the Civil Liability Act (the"Act") and in particular Section 42 of that Act which confirms that a Road Authority is not liable for a failure to maintain, repair or renew a road (which includes a car park, a footpath or a structure associated with a road).  We have found that there may still be two areas where it is possible to bring a claim for compensation but the circumstances must assist the injured party.  These circumstances are:

  1. Where the Council has repaired a defect but done so badly and the poor state of repair has lead to an accident.  An example here would be where a Council had repaired a pot hole but has left an uneven road surface as a result.
  2. Where a person could establish that not only is there a defect in the road or footpath which has lead to an accident but that the Council has been made aware of that defect over the past several months by a number of people contacting them about it.  In that circumstance one could argue that the Council has been negligent in not taking steps to avoid a known risk.

There are traditional policy reasons why Councils are protected generally from claims and any injured cyclist who is proposing to tackle his or her Local Council in this regard would be well advised to seek appropriate and experienced legal advice before going too far. 

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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