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Title: Black ice from leaky mains

Date: 01 August 2013

Question

Early one winter’s morning last year (seems very distant with the recent weather we have been having) my husband came of his Triple Speed on black ice, slid across the road and into the path of a car coming the other way. Mark was very seriously injured and it is still not known if he will be able to walk unaided as he is still undergoing intensive treatment and may need further surgery.

At the time the police thought Mark could die so a full investigation was launched with the road closed. The cause was black ice which he could not have seen and they concluded it came about from a leaking water main. The police attached no blame to the other driver.

Our solicitors wrote to the council or highway authority but they have denied liability saying they could not have known about the leak and they cannot be expected to deal with all ice on all roads in such harsh and unusually cold wintry conditions. We are now facing the prospect of having to drop the claim as we seem to run out of ideas. Is there any other way to persuade the council to pay up?

Sue Roberts, Newcastle

Answer

I am sorry to hear about the awful consequences of this accident and wish your husband as full a recovery as possible. I can understand why your solicitors have been corresponding with the highways authority/council as in certain circumstances claims for ice on the road can succeed. You need to obtain the records of reports of the ice. If no one had reported the burst pipe or ice prior to your husband’s accident then there is no hope in pursuing them. Even if they were aware there is a better Defendant to go after where on the facts of the case your husband is guaranteed to be compensated. You need to go after the “water undertaker”; that is the company responsible for the water pipe / water provision.

Section 209 of little known The Water Industry Act 1991 is the key to success here. This covers situations in which water escapes and causes injury and financial losses and renders the water undertaker (company) liable. Better still this is strict liability – this is an absolute legal responsibility for an injury or loss that can be imposed on the wrongdoer without proof of carelessness or fault.
Therefore I suggest you direct your solicitors to this Act or switch to specialists in bike accidents.

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