Pothole claims guide discussion

TartanGiant

I'm very pleased that this POTHOLE forum has started.
The email I got said in so many words you have to prove the Council was "negligent" - no you don't !
Your council will probably witter along the line, “The council will ONLY pay claims where it has been negligent or failed to meet a legal duty”.
Such a disclosure is untrue in law; Lord Denning in Haydon v Kent CC [1987] QB 374 “a claimant will not need to prove that there was a negligent breach of duty to maintain, merely that there was a breach of the duty to maintain”.
Another point is that you don't have to have a mechanic's letter to prove your case - though that might be an idea to get him to annotate your bill of what he thought caused the damage. The mechanic was not there when you hit the pothole, so it's not first class primary evidence, it's "opinion".
I'm having a battle with my Council and I have spent MONTHS reading all the law there is on this, so I'm ready to sink them !
TG

StringyBob

TartanGiant wrote: »

I'm very pleased that this POTHOLE forum has started.
The email I got said in so many words you have to prove the Council was "negligent" - no you don't !
Your council will probably witter along the line, “The council will ONLY pay claims where it has been negligent or failed to meet a legal duty”.
Such a disclosure is untrue in law; Lord Denning in Haydon v Kent CC [1987] QB 374 “a claimant will not need to prove that there was a negligent breach of duty to maintain, merely that there was a breach of the duty to maintain”.
Another point is that you don't have to have a mechanic's letter to prove your case - though that might be an idea to get him to annotate your bill of what he thought caused the damage. The mechanic was not there when you hit the pothole, so it's not first class primary evidence, it's "opinion".
I'm having a battle with my Council and I have spent MONTHS reading all the law there is on this, so I'm ready to sink them !
TG

Not correct I'm afraid. You have to prove negligence and/or a breach of duty. In pothole cases all you essentially have to prove is that the pothole was dangerous to road users. If you prove that then there is a breach of s41 of the Highways Act, as that imposes a strict duty upon the highway authority to maintain the highway. Even if you do that you are still likely to be rejected due to the s58 defence.

The guide is useful, but I fear it will give people false hope. I work in the claims department of a Council and can tell you that over 90% of pothole claims are rejected. This is not because, as the guide cynically claims, it is easier to reject them at an early stage, but it's because firstly the law is stacked in our favour and secondly (and this will come as a shock to most people) we actually know and do our jobs properly (most of the time).

We have never, in my time, lost a case at court because our system of inspection and maintenance was inadequate. Our Highway policy is better than the code of practice. We only lose and pay out on cases where there is basic human error i.e. an inspector has blatantly missed a pothole or the repair hasn't been done on time. It is far more efficient for the authority to pay out at the earliest possible chance if we know we've messed up. However, if we are confident we have done everything reasonable then we won't pay out, no matter how many fancy letters or FOI requests are submitted. That may sound harsh but we have a duty to look after public money.

Finally, it's worth remembering that given the right (or wrong) conditions a pothole can form in a matter of hours and no inspection and maintenance system in the world would prevent some damage. Sometimes it is just an accident and nobody is to blame. That tends to get forgotten in the current claims culture where somebody always has to be at fault.

StringyBob

Shazzak wrote: »

Hi

Can we have advice what to do when the responsible authority says it is not responsible, because the pothole is down to a third party, eg, a utility supplier, who did not complete the repair work to the right standard, hence a pothole. This happened to us last year and the authority denied responsibility on these grounds. We argued that the highways authority was responsible for the roads and the contractors it appoints to undertake any works to repair the roads, and that we ought not be responsible for chasing around after their failed contractors, since contractually that ought to be the role of the organisation commissioning the work. We were sent on a wild goose chase to try to get a round £200 worth of repair work refunded.

Many thanks.

It's not 100% straightforward.

In most situations involving a contractor you have to submit the claim to the contractor, as the only duty upon a person appointing a contractor is to ensure that the contractor is reasonably competent. However, there is very old case law that suggests that a highway authority cannot delegate their duty and the New Roads and Street Works Act also seems to suggest that this is the case. However, the Highway Authority will have a right of recovery against the contractor or utility and commonly they will refer you to them, as it is normally easier to deal with the negligent party directly. Best advice is to go after both and let them argue the toss.

StringyBob

veedubu wrote: »

what about damage to bikes (cycles)? It is a real hazard and can cause actual injury.

Can we claim too?

Yes, but the same rules apply and you are unlikely to get anything

cvCA

StringyBob wrote: »

Yes, but the same rules apply and you are unlikely to get anything

I successfully claimed off a contractor (I think it was Lafarge) because they left roadworks in an unsafe state with a big pothole right across a cycle lane. Take pictures of everything, don't accept the initial rejection and be prepared to go to the small claims court.

cvCA

StringyBob wrote: »

The guide is useful, but I fear it will give people false hope. I work in the claims department of a Council and can tell you that over 90% of pothole claims are rejected. This is not because, as the guide cynically claims, it is easier to reject them at an early stage, but it's because firstly the law is stacked in our favour and secondly (and this will come as a shock to most people) we actually know and do our jobs properly (most of the time).

Perhaps you could convince your colleagues in the Highways department to do their jobs properly most of the time too? 3:)

Finally, it's worth remembering that given the right (or wrong) conditions a pothole can form in a matter of hours and no inspection and maintenance system in the world would prevent some damage. Sometimes it is just an accident and nobody is to blame. That tends to get forgotten in the current claims culture where somebody always has to be at fault.

Get real. There are potholes I reported years ago which are still unrepaired, getting worse each winter until they break enough tourists' cars (because the locals have watched them grow and steer around them).

osmodia

If you don't want damage to your tyres and wheels then don't fit those ridiculous very low profile tyres! One of my neighbours has a Golf fitted with very wide wheels and the wheel rim is 30mm from the road, he has replaced two tyres this year and one wheel because of pothole or kerb damage. He realises it's a tyre/wheel problem but says it's worth it as the wheels look "cool".....!

MisterCycle

I hit a 8" deep x12" pothole in the dark this summer on my bike and bent my rear wheel. It was next to the steel edge of a manhole cover which I hit at right angles. I burst both tyres and was lucky not to end up on my backside in the road. I reported the hole as usual on Surrey CC's website and it was mended the next day. The council was very helpful in directing me to the relevant forms etc which I sent to their claims people, with photos, maps, drawings, repair estimates and a covering letter proposing that a hole that size couldn't have formed inside their inspection period so must have been missed. Indeed 'spotted' potholes round here are marked with white spray paint, this one wasn't. About 10 weeks later I got a cheque in the post for the requested £150 which paid for my new wheel.:beer:

rebecca1

I made a claim to the local Council about a pot hole I hit in August. I sent them pictures of the pot hole and location, along with pictures of the damage to my wheel and tyre which had to be replaced. They took nearly the 90 days they say they have to respond to claims and then rejected it saying that they had maintained the road and sent the me a copy of the work schedule. There was no appeal procedure but I could take it to the small claims court. I could not find this location/pothole on the list.
I have now written to the maintenance team asking them whether that pothole was listed. The pothole had an orange mark around it so I have asked them what this means.


As for the comment on this forum by tykesi stating about people looking where they are going - what a strange comment to make! many times I have hit a pothole before I knew it with very little time to avoid it especially when there is an oncoming car coming along on the opposite side of the road.


I will follow up the case next week to make sure they received my email, not had a response yet.


Rebecca

StringyBob

cvCA wrote: »

Perhaps you could convince your colleagues in the Highways department to do their jobs properly most of the time too? 3:) Get real. There are potholes I reported years ago which are still unrepaired, getting worse each winter until they break enough tourists' cars (because the locals have watched them grow and steer around them).

They do, otherwise we pay. Simple. Ask any decent highway engineer and they will tell you how fast potholes can form.