I came off on ‘excessive overbanding’. Can I claim?

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I lost the rear end on a wet country bend and ended up in a ditch. I hurt my shoulder quite badly, but I was able to pick myself up. When I went to inspect the road I noticed that the overbanding sealing the edge of a recent road repair looked much wider than usual, about 80mm wide. Can I claim from anyone for my injury and bike damage?
Tim H, Wrexham

Answered by Andrew Campbell, Solicitor and author of the MCN Law column.
Depending on the type of road, the local council or the Highway Authority is responsible for maintaining the road surface and all repairs. Authorities often contract this work out, but the contractors have a duty to make sure the road repairs comply with statutory requirements and repair guidelines.

Those guidelines state that overbanding should never be more than 40mm wide or 3mm thick. If wider than 20mm, the material used is supposed to have a grit-like substance added to provide adequate wet skidding resistance.

The overbanding you describe clearly exceeds the recommended width and it also sounds like it may not have had the anti-skid protection. If you can prove that the overbanding did not comply, then it would likely be considered a hazard and you may well be able to bring a claim against either the authority or the contractors for misfeasance and/or negligence.

To prove your claim you may require evidence from a highway expert witness. Such experts are not cheap, so whether it is a reasonable expense will depend on the likely value of your claim.

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