Thursday 26 November 2020

A Sport England Active Lives Survey in October 2019 reported that approximately 100,000 more people were cycling for leisure and sport than in 2018, taking the total to 6.3 million people.

When lockdown began, gyms were closed and use of public transport was actively discouraged – many turned to cycling. This is demonstrated by Halfords reporting that bike sales rose by 57.1% in 13 weeks.

These numbers look set to increase further. The Government is encouraging people to ‘get on their bikes’ to get around and get fitter. The public, through a raft of measures, will be encouraged out of their cars, off the buses and onto two wheels via a multi-billion-pound investment.

Well Maintained Highways Code of Practice

We are also now nearly two years on from the deadline for implementation of the Well Maintained Highways Code of Practice, that essentially required highway authorities to adopt a risk-based approach with regards to highway inspection and maintenance. While it’s always worth restating that there has been no change to the wording of Section 41 or Section 58 of the Highways Act 1980 and case law such as Mills v Barnsley MBC remain good law, the courts will look at post-October 2018 cases somewhat differently.

Under the old regime, it was not uncommon for judges to broadly view claims involving cyclists more sympathetically but rarely to the extent that it ultimately made much of an impact on the outcome.

The combination of an increased number of cyclists on the roads and the new Code’s focus on the need for a risk-based approach to highways maintenance may well result in additional expectations on highway authorities to show they are meeting the burden imposed with regards to this class of highway user.

It seems likely that there will be situations where judges will now be emboldened to find in favour of claimants in circumstances that would previously has seen highway authorities consider themselves to be on reasonably solid ground. It is likely that it will be argued that a higher risk assessment score should have been applied on the basis that the potential consequence of a cyclist coming into contact with a pothole is likely to be greater than for a pedestrian or a driver of a vehicle.

Lower investigatory levels on recognised and defined cycle routes (in the same way that reduced intervention levels have traditionally been applied to crossing points) would be an obvious first step but insufficient to properly manage this risk.

Some additional steps could include:

  • Ensure cyclist traffic (as well as pedestrian and vehicular traffic) is monitored when considering the level of road usage. Some routes are particularly popular with individual cyclists and cycling clubs.
  • When carrying out risk assessments of potholes, highways inspectors should think about all highways users, including cyclists, with written inspection guidance reflecting this.
  • They should consider where cyclists are likely to position themselves in the road and consider defects in this context.
  • Think about the potential consequences of a cyclist having an accident at a particular location, for example, risk of falling into traffic, sharp turns in the road meaning a cyclist could fall down a steep drop, coming into contact with a wall.

There is no need to reinvent the wheel to reduce the risk, just ensure highways authorities ‘think bike’.

Philip Harding, Principal Associate, Weightmans LLP (philip.harding@weightmans.com)

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