Pot Hole claim refused - Advice

sbf

HI,

I hit a pot hole in December and the council has refused my claim for compensation under Section 58.
I have documentation from the council which informs me that they raised an urgent 2 hour repair at the end of November but for some reason this was not carried out by the contractor.
I damaged by tyres 15 days later from them raising the emergency repair which was not carried out.
Has the council been negligent as they have not ensured the contractors carried out the ermegency repair.
I know on the day I damaged my car, several other cars also received punctures.

Any advice, welcome.
Thanks

DUTR

Sometimes no , means no.

AdrianC

Section 58, Highways Act 1980.

The_real_live_actual_legislation wrote:

(1) - In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.


(2) - For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—

(a) the character of the highway, and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the highway;

(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

https://www.legislation.gov.uk/ukpga/1980/66/section/58


Reads to me that "Well, we told them to..." would be sufficient. You would certainly have to take them to court for it to get any further.

I presume this pothole was clearly marked, having been inspected and flagged for repair? So, umm, why...?

Ectophile

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

That paragraph is deeply confusing. But the way I read it is that it is not sufficient to employ someone to do the work - you also have to check that they have actually done it.

AdrianC

but for the purposes of such a defence...

But if you are using this as a defence...

...it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates...

...you can't just say "I told him to do that one"...

...unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.

...unless you can prove you've got proper management of that contract in place.

No requirement to prove that particular instruction was followed up, only that there was management in place of the contract as a whole. Which is reasonable.