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Are Councils Required to Reduce Cyclist Accident Risk on Flooded Roads?

By Principal Lawyer, Personal Injury

Flooded roads are an accident risk to cyclists. After a significant period of rainfall, there can sometimes be a considerable flow of rainwater, leaves and other debris in roadside gutters which can lead cyclists to pedal further out from the kerb. 

On busy roads this puts cyclists in great danger of being hit by passing vehicles, especially where the road is also a bus route.

We get a lot of rain in the UK and our roads will be subject to floods now and again. What then do councils need to do to minimise the risk to cyclists?

Provision of Gullies

There is no legal requirement for councils to provide a specific number of gullies or drains on a road as this would depend on a number of factors such as rainfall and the gradient of the slope.

As time goes on, drainage gullies will collect detritus from the water run-off and become blocked. This creates standing water on the road surface which is a cycling accident hazard and also a risk to other road users.

I have dealt with many cases where serious and fatal injuries were caused by standing water on a road surface and have pursued claims against highway authorities alleging failure to maintain drains or gullies.

What the Law Says

The Highways Act 1980 imposes a statutory duty upon highway authorities to “maintain the highway”. The definition of “maintenance” under the Act includes “repair”.

In any action resulting from a “failure to maintain a highway maintainable at the public expense, authorities have a defence under the Act if they can prove they have taken all reasonable steps to “secure that the part of the highway to which the action relates was not dangerous to traffic.”

Coming back to the subject of flooded roads, does the statutory duty upon highway authorities extend to maintaining the drainage system?

The Court of Appeal considered this scenario in 1968 where a claim was brought against a highway authority for an alleged failure to maintain a drainage gully that had caused standing water on a road where a fatal accident occurred.

Evidence suggested that part of the road was frequently flooded in wet weather. No drain existed at the lowest part of the road (there was a dip in the road at the place of collision) and drains along the road weren’t often cleaned by the highway authority.

Lord Denning, the then Master of the Rolls held that where there is a permanent danger in the highway by reason of non-repair, failure to maintain may be inferred. He also ruled though that where there is a temporary danger due to bad weather, the existence of danger for a short time is no evidence of a failure to maintain.

Many highway authorities have since argued that Lord Denning`s case is no longer good law but a 2006 Court of Appeal case held that a duty to maintain the highway does, in fact, extend to drains and gullies, not just the road surface.

This latest common law ruling means that it remains possible to pursue a personal injury claim if the accident was caused by a failure to maintain the highway. Local councils, therefore, need to inspect their drainage systems regularly and ensure they are cleared of debris and vegetation so as not to pose a risk to cyclists and other road users in times of heavy rain.

For more advice on cycling in wet conditions, read the CTC’s Cycling Through the Floods article.

Paul Kitson is a keen cyclist and Slater and Gordon’s Principal Lawyer for the CTC, the UK’s national cycling charity.

Call us for a free consultation on 0800 916 9046 or contact us online and we’ll be happy to help you.

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