Potholes can be a nuisance for anyone driving a vehicle, but for a cyclist, hitting one is downright hazardous, and can result in serious injury and time away from work. If you have been involved in a cycling accident and think a poorly maintained roadway is the cause, there are steps you can take to protect your rights.
Do you have a legal claim?
If you’re injured, you can sue for damages, but certain factors will impact whether you have a viable case, including:
Proof of negligent maintenance
In these types of cases, you have to prove the municipality was negligent in maintaining the road. In Ontario, municipalities must maintain all roadways in a reasonably safe condition for those using the roadway, including cyclists.
The key issue that judges assess is whether a municipality met the standard as outlined in Ontario’s Minimum Maintenance Standards for Municipal Highways, which set out the rules that municipalities must follow to maintain roadways. The Standards establish timelines for municipalities including:
The Standards establish the size and depth at which a pothole must be repaired. For example, a pothole must be at least eight centimetres deep and have a minimum surface area before a municipality is required to fix it. The Standards also classify roads and base the amount of time municipalities have to fix potholes on the depth of the pothole and the class of road: the busier the road, the quicker the municipality must repair the pothole.
Cyclists need to be aware that rural areas have longer to fix potholes, which means cyclists may see more of them outside urban areas. Municipalities sometimes give a warning of the pothole before they fix it using orange spray paint or a traffic cone.
Time limits for filing a lawsuit
If you are injured and intend to sue for damages, you are required to give the municipality notice of your fall and injury within 10 days of the incident. Many municipalities have an area on their website where you can file an emailed report about what happened.
If you miss the 10-day period, courts will consider extending it if you were hospitalized or injured to the extent that you were unable to provide that notice during that timeframe. The 10-day rule requires an injured person to act quickly, and that’s quite onerous for someone who has just injured themselves. If you are unsure about how to provide notice to a municipality, contact a lawyer immediately who may be able to assist.
If your injuries are serious, call a lawyer immediately. Your counsel will start gathering information, including:
Determining the size of a pothole can be difficult and may present a hurdle for your matter so photos are vital.
After your lawyer files a claim, the municipality will file a statement of defence. The defence is most often related to the Minimum Maintenance Standards. Sometimes, the defence is the pothole was smaller than eight centimetres in depth or didn’t meet the minimum surface requirements for that classification of roadway and therefore didn’t need to be repaired, or that the municipality was still within the time to fix it.
If a judge finds that a municipality breached the Minimum Maintenance Standards, the liability will land on the city or town and award compensation to the cyclist. Compensation can be awarded for:
Before deciding to award damages, judges will also consider your actions as the cyclist. You have an obligation to make all reasonable efforts to protect yourself, such as wearing a helmet. The value of your claim may be reduced if you have a brain injury and you weren’t wearing a helmet, for example. The judge will also assess whether there is anything you did to contribute to the accident, such as you didn’t have reflectors or a light on your bike at night.
As well, a judge may take into account the actions of a third party, such as a company directing traffic, to determine whether they could have done anything differently to avoid the accident.