National Pothole Day – Your rights and how to claim for damage to your vehicle

15 January 2021, 12:40 | Updated: 15 January 2021, 17:02

Potholes cause chaos for motorists every year
Potholes cause chaos for motorists every year. Picture: PA
Dean Dunham

By Dean Dunham

Today marks National Pothole Day, serving as a good reminder that potholes continue to be a problem on our roads and what your rights are if your vehicle is damaged due to a pothole.

Here is everything you need to know:

THE LAW

The law relating to potholes and liability for road maintenance is predominantly set out in Section 58 of the Highways Act 1980. The Act outlines the legal responsibilities and duty of care of road owners, which is normally highway agencies and local councils (“Authorities”), for ensuring that roads are safe and passable, so as to avoid causing injury (or damage to property) to those that use these areas.

However, section 58 also provides the Authorities with a defence (known as a statutory defence) to claims.

This statutory defence allows a council or highways agency to defend claims on the basis that they had taken reasonable measures to ensure problems such as potholes are found and dealt with swiftly.

All councils should have a reasonable system in place whereby they regularly inspect roads and repair them if necessary. Provided they have followed their system as they should and can show that the pothole in question had not already been reported to them, they may be able to reject your claim. However, if you can prove that they have not, or that their system differs from the recommendations of the national recommended standards for highway maintenance, then you may be able to claim.

You can find the current code of practice and the "Well Maintained Highways" guidelines councils need to adhere to here: http://www.ukroadsliaisongroup.org/roads/code_of_practice.htm

You can therefore see that to be successful with a claim, you need to do some homework first so that you have a full appreciation of what steps the Authority has taken in relation to maintenance and what it already knew or did not know about the pothole.

INVESTIGATING THE FACTS

Before even thinking about lodging a claim you need to be armed with lots of facts and evidence:

1. Photographs – if it is safe to do so take photographs of the pothole. This is to evidence:

a. the location on the road (also noting the lateral position of the pothole, i.e. was it in the wheel tracks, near the edge of the road, etc.);

b. the width of the pothole and

c. the depth of the pothole. You should also take photographs of the damage to your vehicle.

2. Location – you will need to show the geographical location of the pothole and road. Many people are now using Google Earth to do this.

3. Authority conduct – for this you will need to make a freedom of information request.

Under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 you are entitled to any information that is held by a council or highways agency about a road and the safety inspections of it. As the authorities will rely on safety inspections to reject your claim, you will need information about how and when these inspections are undertaken.

If you type the name of the authority you intend to claim against and the words "freedom of information" into an internet search engine, you should find a web page that will tell you all you need about how to make a request from them.

Most local authorities pay out hundreds of thousands of pounds in pothole claims every year but, in most cases, this represents a small proportion of the overall claims received from motorists. Most claims are therefore rejected and in most of these cases, the motorist simply gives up and takes it no further.

To be successful with a pothole claim it is important to understand the law in this area (and your rights), including the legal defence authorities, can use to defeat claims.

In your request, you need to ask for the following:

· Dates of all safety inspections undertaken on the carriageway in the two years preceding the date of your incident.

· Details of all carriageway defects identified during safety inspections in the two years preceding your incident.

· Details of how carriageway safety inspections are undertaken, including whether walked or driven, the speed of the inspection vehicle and the number of persons in the vehicle.

· The intended frequency of carriageway safety inspections.

· Details of all complaints and/or enquiries relating to the carriageway, received in the two years preceding your incident.

· The hierarchy classification.

· The road/section number.

· The defect intervention criteria adopted in relation to the identification of all categories of carriageway potholes (in other words, this means how they define a pothole as requiring attention).

· The time period(s) adopted between identification and repair (temporary and permanent) of all categories of carriageway defects.

· Whether or not the authority has formally adopted all or part of the standards contained within the national code of practice for highways maintenance management.

The authority should acknowledge your request and will have 20 working days to supply the information you have requested. If they fail to do this, you can complain to the Information Commissioner's Office.

4. Evidence of the damage – take photographs of the damage and obtain quotes for repairs.

Scott Dixon from the website ‘Grumpy Git’ has helped numerous consumers in Scotland to fight pothole claims. He says it is not a level playing field and that in Scotland you have as little as 3 percent chance of succeeding. He also advises claimants to go to either: www.fixmystreet.com or www.fillthathole.org.uk to obtain copy road inspection reports for anywhere in the UK.

BEFORE YOU MAKE YOUR CLAIM

After you have gathered all your evidence (including the response to your freedom of information request) you need to consider if your claim will be successful. This means considering again the defence the Authority will have available under section 58 (explained above).

You should consider the following;

o Was the road given an adequate hierarchy classification based on its usage and location? Check the table and descriptions in Section 9 of the national code.

o Taking into account its hierarchy classification, or what you believe the classification should have been, was the road safety inspected at the recommended frequency?

o Was the road safety inspected at a proper speed? Judgements suggest that speeds of over 25mph are too fast for identifying defects in the road.

o Was there a driver and an inspector? Other judgements have suggested that an inspector cannot drive safely and look for defects.

o Had the authority already been told about the pothole before you hit it, perhaps even identified it themselves during a safety inspection? If so, did they repair it within the recommended time?

o If a safety inspection was carried out soon after your incident, was the pothole identified then?

o Did the location have a history of potholes being reported? If so, had the authority increased the number of safety inspections of the road?

o Was the pothole you hit not considered dangerous by the authority because it was not big/deep enough? (Note - generally, potholes less than 40mm deep are not accepted in

Court as being dangerous to vehicles.) If so, do their standards compare to national recommendations?

o If the authority has adopted the national code, have they complied with it?

If you answer "yes" to all the above, your claim is unlikely to succeed. If you answer “No” to any of the questions, your chances of success are improved greatly.

MAKING YOUR CLAIM

To make a claim you must address it to the right authority. Sending it to the wrong place could mean your claim is delayed or does not get looked at. If the pothole: · is on a major A-road or motorway in England, contact Highways England on 0300 123 5000 or by emailing info@highwaysengland.co.uk · is on a major road or motorway in Scotland, find the right authority on the Transport Scotland website

· is on a major road or motorway in Wales, contact Traffic Wales on 0300 123 1213 or contact@traffic-wales.com

· is on a major road or motorway in Northern Ireland, contact the Department for Infrastructure · is on any other road, contact the council that is responsible for the road. You can look up the relevant council at the GOV.UK website

Some authorities have a dedicated complaint form for pothole complaints others simply tell you to send an email or letter.

You need to provide the following information:

1. Details of what happened, including the time and date – i.e. “I was travelling along the road known as xxxx (and marked on the plan attached) (“the Road”) in my xxx make of vehicle. At approximately xx am/pm I hit a pothole located in the Road (marked on the plan attached). This caused the following damage to my vehicle xxxxxxx”.

2. A plan of where the road and pothole is located - If your map is inadequate, the authority will normally send you a scale plan for you to mark.

3. All the evidence you compiled – including photographs and all you received from the freedom of information request.

4. Details of your case – in short, this will be that the authority has failed to properly maintain the road, in accordance with applicable laws and the national code and that consequently you sustained damage to your vehicle. You should also state that you believe they have no valid defence under section 58.

Expect to initially receive a rejection letter. When you receive this go back and say that you do not accept the decision.

TAKING YOUR CASE FURTHER

If the authority refuses you claim the next port of call will be the Small Claims Court. You can initaiet this process online here: www.moneyclaim.gov.uk Before taking this step, be sure that you do have a good claim and that it is worth pursuing further.