Pothole claims guide discussion

TartanGiant

StringyBob wrote: »

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.

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I'm very pleased there is a council employee chipping in with the "official" way his council works. I hate spongers who put in false claims, but I also dislike the stance that probably all councils take in the first instance throwing the Section 58 bouncer.

I have to say to our friend in the council that to disagree with the word of Lord Denning is a brave move - one I would love to see in court, OR any evidence that refutes Lord Denning's judgement, & that it failed in 'so and so case' !

I repeat what Lord Denning said, and it's enshrined in "case law" now: 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”.

How about what judge Lord Hoffman said?
"To say that the Highway Authority can rely upon the defence under section 58 does not seem to me good enough. Section 58 may give the authority a defence to a claim for damages but it is still in breach of the absolute duty"

He also said, "...the act gave highway authorities a special statutory defence, which is now in section 58 of the Highways Act 1980. The authority is not to be liable if it proves that it took 'such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous to traffic'. Section 58(2) specifies various matters to which the court should have regard in deciding whether the highway authority has made out its defence".

Let me show you STRINGYBOB what the court has to "regard" when making a decision:
The court must look at the following (under Section 58 (2)):
● the nature of the road, i.e. is this a main highway (and therefore the traffic that is reasonably expected to use it)
● the standard of maintenance appropriate for a road of that character and used by that traffic
● the state of repair in which a reasonable person would have expected to find the highway
● whether the highway authority knew or could reasonably have been expected to know the condition of that part of the highway to which the action relates was likely to cause danger to users of the highway, i.e. have pot holes already been reported?
● where the highways authority could not have reasonable been expected to repair that part of the highway before the accident occurred, what warning notices of its condition had been displayed.

Show me 'BOB where it says,"the claimant has to prove the highway authority has been negligent ".

Unless you can show me the LAW about your belief that "negligence" has to proven by quoting me chapter and verse, then as a council worker peddling the Section 58 defence, I'm afraid you remain deluded.
My Chapter and Verse is: Day v Suffolk County Council & Ors [2007] EWCA Civ 1436 (23 November 2007). Google it and then read the whole judgement - Bailii.org is a good source.

Cheers
TG

StringyBob

TartanGiant wrote: »

---

I'm very pleased there is a council employee chipping in with the "official" way his council works. I hate spongers who put in false claims, but I also dislike the stance that probably all councils take in the first instance throwing the Section 58 bouncer.

I have to say to our friend in the council that to disagree with the word of Lord Denning is a brave move - one I would love to see in court, OR any evidence that refutes Lord Denning's judgement, & that it failed in 'so and so case' !

I repeat what Lord Denning said, and it's enshrined in "case law" now: 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”.

How about what judge Lord Hoffman said?
"To say that the Highway Authority can rely upon the defence under section 58 does not seem to me good enough. Section 58 may give the authority a defence to a claim for damages but it is still in breach of the absolute duty"

He also said, "...the act gave highway authorities a special statutory defence, which is now in section 58 of the Highways Act 1980. The authority is not to be liable if it proves that it took 'such care as in all the circumstances was reasonably required to secure that part of the highway to which the action relates was not dangerous to traffic'. Section 58(2) specifies various matters to which the court should have regard in deciding whether the highway authority has made out its defence".

Let me show you STRINGYBOB what the court has to "regard" when making a decision:
The court must look at the following (under Section 58 (2)):
● the nature of the road, i.e. is this a main highway (and therefore the traffic that is reasonably expected to use it)
● the standard of maintenance appropriate for a road of that character and used by that traffic
● the state of repair in which a reasonable person would have expected to find the highway
● whether the highway authority knew or could reasonably have been expected to know the condition of that part of the highway to which the action relates was likely to cause danger to users of the highway, i.e. have pot holes already been reported?
● where the highways authority could not have reasonable been expected to repair that part of the highway before the accident occurred, what warning notices of its condition had been displayed.

Show me 'BOB where it says,"the claimant has to prove the highway authority has been negligent ".

Unless you can show me the LAW about your belief that "negligence" has to proven by quoting me chapter and verse, then as a council worker peddling the Section 58 defence, I'm afraid you remain deluded.
My Chapter and Verse is: Day v Suffolk County Council & Ors [2007] EWCA Civ 1436 (23 November 2007). Google it and then read the whole judgement - Bailii.org is a good source.

Cheers
TG

I'm afraid you seem to have a serious reading comprehension problem. Look at what Denning said. You don't have to prove a negligent breach, you merely have to prove a breach. So you're initial comment of not having to prove a breach is flat out wrong.

I am well aware of Day -v- Suffolk but I can't see what this judgement that comments on the method of inspections has to do with your general thrust.

Let me know when you have your day in court, as I'll be in the front row with some popcorn. Should be quality entertainment.

CumbrianExile

Please report all potholes using fillthathole.org
It sends a report to the relevant council, which is useful if you don't know the area. Unfortunately some councils do not take any notice of it: I live in Cheshire East which ignores it, whereas a massive pothole on Hardknott pass was repaired by Cumbria CC in less than a week.
Fillthathole.org is also useful to see whether a pothole has already been reported, as you can search by mapping and get the date it was reported.
If I hit a pothole, I just hope that all I damage is the car, and not my skull if out cycling. Like someone has already said, if the hole is full of water you cannot see whether the puddle has a hole under it or not. That is one reason why cyclists ride around puddles rather than through them.

Noahnewby

StringyBob wrote: »

I'm afraid you seem to have a serious reading comprehension problem. Look at what Denning said. You don't have to prove a negligent breach, you merely have to prove a breach. So you're initial comment of not having to prove a breach is flat out wrong.

I am well aware of Day -v- Suffolk but I can't see what this judgement that comments on the method of inspections has to do with your general thrust.

Let me know when you have your day in court, as I'll be in the front row with some popcorn. Should be quality entertainment.

This gentleman knows his onions ( Stringy or not:D). I also worked for a local authority dealing with such claims for over 20 years and what he's saying is sound (oops another onion pun).


Local authorities are constantly having their maintenance budgets eroded by central government and they try their best to provide a maintenance and inspection regime to prove they are carrying out their statutory duty. Moreover, they don't deliberately create potholes to trap unwary motorists which a lot of claimants seem to believe. The state of Britain's roads is, in my opinion, down to the underfunding of proper resurfacing over many years which would cost an absolute fortune to rectify now. The cost on income tax would have the " I pay my tax brigade" in meltdown.


Unfortunately, accidents happen and that's why you pay insurance. However, nobody wants to claim on this because it costs them in increased premiums but they seem to think it's O.K to claim against the Council which places the cost onto, guess who, the taxpayer. In fact, some people think that Council's are an easy touch for compensation but would never claim against the likes of British Gas etc who, along with other utilities, cause loads of damage to roads with their crap reinstatements.


I can tell you in no uncertain terms that Councils have had to develop excellent systems of maintenance, inspection and claims defending through necessity rather than choice due to private ambulance chasing Solicitors and fraudulent claimants.


There is a lot of genuine claimants but this doesn't make the Council, or any other public/private body automatically liable unless , of course, they've been negligent and you can prove it.

autosere

Stringy bob has been planted on this this site about this issue to put us all off, We pay our road fund licence so we deserve to drive without fear of damaging our prized possessions what are these council bigwigs doing our money these people are getting between £70.000 & £100.000 per annum , They also let the claims go out to claims companies who charge a fortune to do the dirty work & the rate payer. Scandalous. We are not daft Stringy bob I,m onto you.

StringyBob

autosere wrote: »

Stringy bob has been planted on this this site about this issue to put us all off, We pay our road fund licence so we deserve to drive without fear of damaging our prized possessions what are these council bigwigs doing our money these people are getting between £70.000 & £100.000 per annum , They also let the claims go out to claims companies who charge a fortune to do the dirty work & the rate payer. Scandalous. We are not daft Stringy bob I,m onto you.

"We are not daft". Hmmm.

Really this post is not worthy of a reply ... but you have mentioned my own personal bugbear. There is no such thing as "road fund licence" or even road tax. There is vehicle excise duty, the amount of which depends on the vehicle. This tax is not ring fenced and goes into the general tax fund.

mattyprice4004

autosere wrote: »

Stringy bob has been planted on this this site about this issue to put us all off, We pay our road fund licence so we deserve to drive without fear of damaging our prized possessions what are these council bigwigs doing our money these people are getting between £70.000 & £100.000 per annum , They also let the claims go out to claims companies who charge a fortune to do the dirty work & the rate payer. Scandalous. We are not daft Stringy bob I,m onto you.

Does it not occur to you that he's posting his replies out of office time and trying to help?
It's people like you that are the reason every other council worker doesn't bother posting.

Bob, I'd save your breath. You're always going to be faced with the 'I know better' brigade on here, and while I appreciate your input there are others who would rather just whinge.

'Has been planted on this site' is my favourite quote. Take off your tin foil hat

Sussex_Cobbler

The first reaction you'll probably get from most local authorities is a long letter giving endless reasons why they are not responsible and, at the same time, trying to make you feel bad about making a claim from the public purse. Be persistent; many local authorities employ lots of expensive staff whose aim is to get you to go away and be quiet. Checks on various sites showed that this pothole had been reported several times in the previous fortnight.

If you persist you are likely to be sent a long claim form. One that I got from West Sussex demanded that copies of the driver's driving licence, insurance, and vehicle test certificate be submitted. This is evidence-gathering on an epic scale and is totally at odds with the Data Protection Act. When I queried this I was told that it was necessary and they would not deal with any claim if the documents were not produced. Be persistent. It took me 15 minutes of phone calls & I got bounced around the office before ending up with someone who admitted it was council policy, but they wouldn't be moved on it, as it was their duty to investigate fraud.

So, I sent in a Freedom of Information request asking to be told when it became Council policy and who made it, and asking what agreements existed with Sussex Police meaning that the council now investigated fraud rather than the police. No response. So I sent in another, this time suggesting the council might like to have the matter referred to the Local Government Ombudsman. Then, interestingly enough they decided they didn't need the documents, though they never did say why they were engaged in the fraud investigation business.

Then a Freedom of Information request was submitted asking for reports made to the council about potholes in the road concerned. This came back so heavily redacted that it was impossible to tell which pothole was which.

The council still rejected the claim despite being sent the repair bill. So a letter was sent saying that if they did not meet the claim within 14 days, the matter would be put to the County Court and at the same time the Council's procedures would be referred to both the Local government Ombudsman and the Information Commissioner. Curiously enough a cheque arrived a few days later.

StringyBob

mattyprice4004 wrote: »

Does it not occur to you that he's posting his replies out of office time and trying to help?
It's people like you that are the reason every other council worker doesn't bother posting.

Bob, I'd save your breath. You're always going to be faced with the 'I know better' brigade on here, and while I appreciate your input there are others who would rather just whinge.

'Has been planted on this site' is my favourite quote. Take off your tin foil hat

I appreciate the comments. I have used this site for years and found the advice to be generally good.

As a general comment, and I can only speak for our authority, it makes no financial sense for us to blindly turn down valid claims. If we did it would cost us more in damages, costs and time than paying the claim at the first possible opportunity. I would always encourage people to at least submit a claim, as firstly it keeps me in a job and secondly you may actually win. However, bear in mind that if we are confident we have a defence we will fight it all the way.

I cannot comment on specific cases but I am willing to give general advice should anybody wish to ask.

Candice-Marie

MSE_Rebecca wrote: »

Hi all,

We've written a new Pothole Claims guide for the website and we'd love your feedback.

How did you find the info? Was it useful? Do you have any other tips you would add?

Thanks for your help,

MSE Rebecca

Thank you for this, Rebecca.

Will the guide for Private Roads include information on establishing who owns a private road? This is something I'm trying to do today, so if anyone has any advice in the meantime, I'd be pleased to read it.

It's a road through an industrial estate, and it doesn't seem as though the road belongs to the owners of the units.

Thank you