Pothole claims guide discussion

The_Ironist

Seeking advice.
I put in a fast claim with my local authority (Gloucestershire Highways) which was rejected.

I made the FOI request and have grounds for compensation as the road was poorly maintained prior to my incident.

However they are advising I am unable to follow up my fast claim with a full claim outlining my evidence, that the next step would be small claims court.

Are they allowed to do this? Do I have no right to appeal their decision?

kefus

Some advice, and a question.

Hit a pothole on the M6 last December (2019) which punctured both offside tyres. After a completely horrendous experience with a totally incompentent AA (it took them 10 hours to recover me a distance of 120 miles to complete my journey!!!) I eventually arrived at my sister's house where I called out a mobile fitter to replace both tyres. During the previous night's inordinately long wait for the AA I had plenty of time to contact Highways England to report the pothole and initiate the claims procedure.

I subsequently returned home to Berkshire and duly received the claim forms from the agency representing Highways England. Sent them off with the receipt for the replacement tyres and about two months later received an email refusing the claim citing the part of Section 58 that is their 'get-out' clause which enables them to deny responsibilty for various reasons.

So, I then followed the recommended route of requesting an FOI request detailing their inspection and repair of that section of motorway. I subsequently received that information about two months later. At that stage I was very busy with work and other things and just never got round to wading through the reams of information the emails contained and, whilst I was furious at the incident having occured, I kind of also just couldn't be bothered having to sit down and try and decipher all of the information and trying to spot where they hadn't done what they were supposed to do and so in the end I just forgot about it.

However, a week ago (8 months after the incident) I received an email out of the blue advising that the claim would be met but minus 20% for 'wear and tear'. Whilst I think that's extremely cheeky of Highways England to deduct the 'wear and tear' amount I just don't have the motivation to argue with them and I would even be worried that if you argued for the full amount they might even reverse their decision to pay out at all.

So, the advice part of this post is that if your claim is rejected submit an FOI request for the inspection/maintanence regime for the road that your incident occured and, if you have the time and motivation, use it to pursue a full claim. However, if time and motivation can't be found, just don't do anything once you've got the information from the council/Highways England and you never know they might settle anyway like they did in my case. If they don't, at least you will have cost them money and the inconvenience of having to comply with your FOI request. A template letter for FOI request can be found on this website under the pothole claims main section.

The question part of my post is - If the default response of councils and Highways England is to refuse your claim, as seems to be most peoples experience, but then a FOI request reveals that they have not met with statutory requirements, or contractors have missed or not repaired a pothole, does that mean that councils and Highways England are routinely lying to motorists who make claims in this regard hoping that the motorist will not make an FOI request which would subsequently reveal the relevant shortcomings? It would appear that when they receive a claim from a motorist they simply quote Section 58 without actually doing any checking themselves as to whether statutory maintanence/repair schedules were actually being adhered to. When the motorist then requests an FOI and that reveals the council/Highways England were at fault they then hold their hands up and say 'oh yeah, that was our fault, sorry!' I don't think councils or Highways should be allowed to get away with that.

It may well also be of interest to any AA members that I complained about the level of service I received on the night of the incident (Incompetence, indifference, not enough resources in place, and a six hour wait on two different recovery trucks - a total of 10 hours to provide a vehicle recovery a distance of 120 miles!) and received a fairly miserly £40 for the 'inconenience' So, just to add if you have bad service from your breakdown provider complain there as well. Once I obtained the compensation I moved to the RAC. I would never never ever return to the AA after that experience.

Qnig

Hi there,
I hit a pothole on a C road in Scotland and it blew both tyres on one side. (I had the car at a garage the week before and after an expensive bill was finally back on the road with fresh MOT when this happened after just 5 miles. GRRRR!) Made a small claim using the council's form. Got rejected because the road had been inspected 8 days prior and there was no fault. However, "my" pothole had been marked with white spray and an arrow, obviously set up for repair. To find out more, I made a FOI request. The inspections indicated a defect found in this location one months prior to my incident. Three weeks later the road was inspected and this is the report without damages being found. 8 days after that my incident happened and I also reported the pothole. 4 days later yet another inspection reports a defect with white markings, after which the road was repaired quickly.
It seems that the road defect had been marked, but not repaired and been missed by one inspection. How can I find out what works have been carried out on the road to proof that the first detection was not repaired?

JHallows

Hi this post is not about pot holes but was unsure where to post. I was parked at red lights on a highway where there was roadside tree and grass cutting ongoing. A strimmer being used hit debris which then hit my car back window and shattered it. Who do I claim compensation from as my car is off the road for 7 days  awaiting repairs via the insurer. The firm gave me a phone number and have agreed to pay excess but are proving difficult to get hold off and not concerned with my stress or inconvenience of no car.

CJB1608

Hi, I have a question that hopefully someone may be able to answer. I hit a pothole one evening and blew a tyre. I went back to the scene the next day to gather evidence as per the guidance and there had been emergency works carried out earlier that day and so the pothole was covered. The 300yard stretch road is full of other potholes and is due to be resurfaced so I sent photos of all the potholes that may have caused the damage although I believe it was the one that was repaired as I didn’t recognise the others (it was dark so hard to judge). I wondered if anyone has had this experience and if they were successful with their claim? The council require evidence of the pothole which I’m obviously unable to provide. I believe that if a pothole required an emergency repair then something should have been in place to ensure road users avoided the dangerous area (e.g. barriers or cones) but I don’t know whether this is too smart for councils to do. Appreciate any advice! 

kevnvicb

Following a failed fast claim, I used your pothole template letter and emailed it last Thursday. I have not received an acknowledgement of receipt. What should I do?  

Cell

CJB1608 said:

Hi, I have a question that hopefully someone may be able to answer. I hit a pothole one evening and blew a tyre. I went back to the scene the next day to gather evidence as per the guidance and there had been emergency works carried out earlier that day and so the pothole was covered. The 300yard stretch road is full of other potholes and is due to be resurfaced so I sent photos of all the potholes that may have caused the damage although I believe it was the one that was repaired as I didn’t recognise the others (it was dark so hard to judge). I wondered if anyone has had this experience and if they were successful with their claim? The council require evidence of the pothole which I’m obviously unable to provide. I believe that if a pothole required an emergency repair then something should have been in place to ensure road users avoided the dangerous area (e.g. barriers or cones) but I don’t know whether this is too smart for councils to do. Appreciate any advice! 

Probably way too late for this response, but yes, you do have to identify the defect. The defect that caused the damage must be of a size that exceeds tolerance limits per S41 Highways Act, On the whole that means 40mm on the carriageway and 25mm on the footpath. In an area of a number of defects some might be above and others below. If it';s below then your cliam would bne virtually guaranteed to fail as the first hurdle.
The relevant case law is James -v- Preseli Pembrokeshire District Council [1992] PIQR 114, which affirmed that the claimant must prove that the particular location in which she fell was dangerous – the condition of the pavement as a whole, even if in need of obvious repair, is irrelevant.
For the purpose of your claim pothole damage and a tripping claim are treated one and the same.

Brigidmoriarty

What is the situation if the road is unadopted?  Where residents are responsible for maintaining the road?

Cell

Brigidmoriarty said:

What is the situation if the road is unadopted?  Where residents are responsible for maintaining the road?

Hi.

Although this is trying to sell insurance to protect against claims the answer is given there - the owners of the land, whether that be an individual, a housing/residents association, a property developer etc. 

https://www.propertyinsurancecentre.co.uk/do-i-need-to-insure-an-unadopted-road/

Opalshade

Help Wife hit a pothole and broke an alloy a tyre and later learnt broke spring I bought 4 second hand alloys £500 as could not get a replacement the  alloys are no longer made by Mercedes The quote from Mercedes is £1600 plus VAT new set of alloys Hampshire are only willing to pay for one alloy Is this reasonable? All comments welcome