Council Claims Handlers rejected pothole damage claim

pinheadplanet

Hi

I made a claim to a council for damage caused by a pothole (the pothole was at the base of a width restriction so as the van went in th epothole it lurched to the left and into the restrictor) but the claim was rejected by their claims handlers stating that "As you may be aware our client as Highway Authority owes a duty of care to maintain the fabric of the Highway to a reasonable standard. This duty is imposed under Section 41 of the Highway Act 1980. However, this liability is not strict."

They have sent me their inspection schedule and they have missed the last 2 quarterly inspections due to covid, so the last time this place was inspected was in February. The incident happened in August, a week ahead of the next due inspection which again didn't go ahead stating covid as the reason.

What do we think? Push further or let it go? I can't believe the "liability is not strict" as stated by them.

Thanks

AdrianC

pinheadplanet said:

I made a claim to a council for damage caused by a pothole (the pothole was at the base of a width restriction so as the van went in th epothole it lurched to the left and into the restrictor) but the claim was rejected by their claims handlers stating that "As you may be aware our client as Highway Authority owes a duty of care to maintain the fabric of the Highway to a reasonable standard. This duty is imposed under Section 41 of the Highway Act 1980. However, this liability is not strict." 

They have sent me their inspection schedule and they have missed the last 2 quarterly inspections due to covid, so the last time this place was inspected was in February. The incident happened in August, a week ahead of the next due inspection which again didn't go ahead stating covid as the reason.

What do we think? Push further or let it go? I can't believe the "liability is not strict" as stated by them.

https://www.legislation.gov.uk/ukpga/1980/66/section/41

All bets are certainly off this year, for fairly obvious reasons.

One question... How wide was the width restriction, relative to the track of your van?

Sandtree

pinheadplanet said:

 I can't believe the "liability is not strict" as stated by them.

Do you understand the concept of strict liability?

In normal circumstances, like motor accidents, liability isnt strict, it is up to the claimant to prove that on the balance of probability the defendant has been negligent (or another tort) in their actions and therefore responsible for the resultant losses.

With anything that is a strict liability there is no burden of proof of negligence etc the claimant only need prove the incident occurred. In English law the easiest strict liability to consider is the tort of trespass to land, you can be minding your own business walking home and some random stranger pushes you onto someone's property.  As trespass to land is a strict liability then the land owner only needs to prove that you were on their land rather than it being your fault that you were on their land to sue you.

The council are therefore saying its up to you to substantiate they were negligent and inevitably the current situation will be considered in terms of if they have failed to do what is reasonable.

greyteam1959

Leave it alone.......
And you now have to declare this no fault claim to your car insurers.

foxy-stoat

greyteam1959 said:

Leave it alone.......
And you now have to declare this no fault claim to your car insurers.

I made the mistake of advising some one here about this type of thing, you will get folk arguing for days....hopefully they have gone back to school by now.

facade

Sandtree said:

The council are therefore saying its up to you to substantiate they were negligent and inevitably the current situation will be considered in terms of if they have failed to do what is reasonable.

You would think that missing 3 scheduled inspections over 7 months would be rather negligent, unless the required frequency is annually, and they were doing it every 3 months just to make work for the inspection teams.

Flight3287462

Everyone is trying to use Covid as a get out of free card.

OP if you want to push this I think you could win but I suspect the fight will be long and hard and very dispiriting.  Are you up for that?  Time to decide if it is worth the hassle.

As for declaring it to your insurance..........aye right.

Sandtree

facade said:

Sandtree said:

The council are therefore saying its up to you to substantiate they were negligent and inevitably the current situation will be considered in terms of if they have failed to do what is reasonable.

You would think that missing 3 scheduled inspections over 7 months would be rather negligent, unless the required frequency is annually, and they were doing it every 3 months just to make work for the inspection teams.

At the point of the incident they had missed two, the fact they went on to miss a third is broadly irrelevant... in the same way had they done the third it wouldnt automatically excuse the first two missed ones.

I didn't actually comment on if they were negligent or not just that they are correct in that it is not strict liability. It going to be a case of good luck finding any case law on what is considered reasonable or not for councils to be doing when the government has issued a national lockdown.  Remember that the council not only have to consider their obligations to road users but also their obligations to their employees... is it more reasonable to stick to guys in a van to break lockdown to inspect a road in case there is a problem with it or more reasonable to keep the employees safe and rely on other mechanisms to learn of problems (eg public reports)? I don't want to be the one risking my money on that court case.

Hunyani_Flight_825 said:

As for declaring it to your insurance..........aye right.

OPs choice obviously but plenty of claims handlers report claims onto the Claims and Underwriting Exchange database. The cost of the damage from the bollard will pale into insignificance if the OP chooses not to declare the matter and their next insurers find the claim on CUE and cancel their policy for non-declaration of an incident (aka fraud)

pinheadplanet

The given width restriction was the same dimension as the van 2.1m

The van was a rental, so I just paid the XS, I don't think the rental company even had it repaired as I never got the call from their insurers as was mentioned.

hmmmm inform my insurers....

Sandtree

pinheadplanet said:

hmmmm inform my insurers....

Just don't want a post in six months time saying you're insurance has been cancelled for non-disclosure and the only insurance you can find now adds a 0 to the end of the premium for your van, car, home etc etc... we have enough of those threads on the insurance section already.

Dr_Crypto

they say they acted reasonably in the face of COVID. I think you'd sturggle to say they didn't. They may even have redeployed highways staff to other roles such as handing out those food parcels or other COVID duties. Who knows.