Pothole damage claim.

1990xrider

Hello there,

Earlier this year (May) I drove over a very bad surface of road on a country lane in Essex. I was going at about 2mph at the time when suddnely my car dipped and there was a horrific crunch noise as it sunk into what appeared to be a pothole, concealed by water.

Initally, there was no conclusive damage. However, upon returning to my vehicle having inspected it to see any inital damage, once I began to drive the vehicle, I could hear a rattling noise. I took it to a garage at the earliest possible opportunnity and found the suspension links were gone and needed to be replaced. A few weeks later, I took my car in for a service and they found further pothole related damage. 

I had already submitted a claim to Essex County Council upon finding out the first damages incurred. Essex County Council were aware of the pothole since October 2021 according to their website. I reported it, and made a claim, and updated them of the further damage identified by garage 2, in total I was seeking £363.01 in compensation. I submitted photos of the damaged road surface and also had dashcam footage of the incident.

Today, responding within the 8 week period, Essex County Council have replied

"At the time of the post-accident inspection the defect was considered to have a consequence

score of 1 and a likelihood score of 3. Multiplying these scores together gives the defect a risk

factor of 3. As mentioned above, a risk factor of 6 or lower confirms that the defect is not

considered to create an immediate danger, and therefore is a Category 2 defect.

As this defect is not considered to be dangerous, we do not accept that Essex County Council

has been negligent in its duties to maintain the highway, as set out in Section 41 of the

Highways Act 1980.

Essex County Council is unable to offer any compensation whereby there is a legal defence

against any such claims. Whilst we are of course sorry to learn of your accident, we must

advise you that we are unable to consider the claim and accordingly deny liability."

Is it worth taking further? 
At this stage I'm looking to research into any laws and regs that could help me in the small claims court. As in, determinating what criteria defines "dangerous". I'm happy to represent myself in court if armed with the necessary legal know-how even if its just a day out and to get one over the council. I believe if this was the damage incurred at travelling at 2mph what on earth would happen if a vehicle was travelling at the speed limit of 30mph. 

Also I noticed they said

"Whilst we are of course sorry to learn of your accident, we must

advise you that we are unable to consider the claim and accordingly deny liability."

Is the s word not an admission of liability or are they simply saying sorry to have found out i had an accident as opposed to being sorry for the road?

It's difficult to see exactly what part of the road the council took my claim for as retrospectively I can't see that information. There's a LOT of damage reported on that section on the council website. This section, from the 2nd March 2023

Issue: carriageway defects
Street: Kennel Lane, Billericay
Last updated: 02/03/23
Status: An inspector will carry out an initial assessment to determine the next appropriate action, which may include a site visit. This could take up to 28 days. Please continue to check for updates.

My incident was on the 12th May, and this message was still shown then, I have the screenshot. So surely that is a dereliction of duty on the council's part to ensure this site has been visited within the period, unless there is some erroneous fault with the Track it website ECC uses.  https://www.essexhighways.org/track-it

DullGreyGuy

Why were you driving well under walking speed? I'd really be concerned about the state of my vehicle if such low speed could cause any material damage.

Their email acknowledges they'd been made aware of it but based on the information they'd been given it was deemed minor and would simply be repaired at an appropriate time. The law requires them to set the rules and then follow them, they state they have followed their own rules. Councils have very finite funds and cannot realistically inspect every bit of road every day or repair every single problem instantly. Were they to do so and as a consequence dont do any bin collections and close all the schools then they would be breaching much more fundamental duties of care. Under current rules they cannot add an extra 0 to everyones tax bill to pay for perfect roads

Aretnap

1990xrider said:

Also I noticed they said

"Whilst we are of course sorry to learn of your accident, we must advise you that we are unable to consider the claim and accordingly deny liability."

Is the s word not an admission of liability or are they simply saying sorry to have found out i had an accident as opposed to being sorry for the road?

This one's easy. You can tell it's not an admission of liability from the words "we deny liability" which come immediately after it. 

The word "sorry" doesn't have some magical status in law which means that it can override everything else in the letter. It has to be read in the context of the letter as a whole and so the latter interpretation is the correct one (ie they're saying "we're sad that you've had an accident but it's not our fault").

1990xrider

Aretnap said:

1990xrider said:

Also I noticed they said

"Whilst we are of course sorry to learn of your accident, we must advise you that we are unable to consider the claim and accordingly deny liability."

Is the s word not an admission of liability or are they simply saying sorry to have found out i had an accident as opposed to being sorry for the road?

This one's easy. You can tell it's not an admission of liability from the words "we deny liability" which come immediately after it. 

The word "sorry" doesn't have some magical status in law which means that it can override everything else in the letter. It has to be read in the context of the letter as a whole and so the latter interpretation is the correct one (ie they're saying "we're sad that you've had an accident but it's not our fault").

Whoops i didn't see that!

1990xrider

DullGreyGuy said:

Why were you driving well under walking speed? I'd really be concerned about the state of my vehicle if such low speed could cause any material damage.

Their email acknowledges they'd been made aware of it but based on the information they'd been given it was deemed minor and would simply be repaired at an appropriate time. The law requires them to set the rules and then follow them, they state they have followed their own rules. Councils have very finite funds and cannot realistically inspect every bit of road every day or repair every single problem instantly. Were they to do so and as a consequence dont do any bin collections and close all the schools then they would be breaching much more fundamental duties of care. Under current rules they cannot add an extra 0 to everyones tax bill to pay for perfect roads

It was 2-5mph i have the video footage. It really was a bad hole. My vehicle was perfectly fine, it had passed its MOT just a couple of months earlier. I was driving at that speed because it was a very narrow country lane and there was a car on the other side and they had stopped to let me pass. Irrespective of the condition of my vehicle, that is not relevant to the case, though I did agree they could come and inspect my vehicle if they wanted. Presumably this would be to check damage but it was already repaired so a bit of a pointless exercise for them to perform.

The thing is like I said damage was reported to the road in March but according to the map tool no inspector was sent within the 28 day period as required to determine its status. So even if the inspector found this was not a pothole worthy of fixing could this not be a technicality I could exploit?

Like I said there are several "issues" reported on that section of road as you can see on the map tool. The area they have said which I reported you can see they determined on the 26th May but I'm not convinced that was the location of my pothole, I believe it may have been the one which was last reported on the 21st March and nothing has been done, no inspector no nothing. 

As for calling it "not dangerous", what do they define as dangerous? Is this different from council to council or is there a legal definition. As Section 41 doesnt' say anything specific about potholes per se just that councils have a duty to maintain roads etc etc. Quite vague, is there any other legislation I can use?

[Deleted User]

Your argument would have to be that their assessment was wrong, but you would likely have to get as far as at least starting legal proceedings.

DullGreyGuy

Yes, each council can come up with its own definitions and how it measures it. Many try to make it fairly objective rather than subjective based on the type of road, speed limit, distance into the road, depth etc. This will give a score that could be deemed a prioritisation or urgency or danger or anything else scale. 

With some councils that will then set the timescales in which it must be repaired, with others it may just set the priority such that a very low priority item could always be surpassed by higher priority items. Some councils will treat a temp fix as a fix whereas others it may just restart the response time for a full fix. 

Ultimately your elected council set the rules and the requirement is they follow their own rules. If you dont like the rules then you need to vote in a new council who say they'll close librarys or defund school trips/after school clubs etc to put more money into road repairs. The reality is to spend more on road maintenance you need to spend less on other things.

https://www.moneysavingexpert.com/reclaim/pothole-claims/ 

Mildly_Miffed

Very narrow lane - AND another vehicle coming the other way?

How far off the main carriageway had you pulled?

Let's see - at the least - a screenshot of this dashcam video showing the hole just before you drove over it.

1990xrider

Mildly_Miffed said:

Very narrow lane - AND another vehicle coming the other way?

How far off the main carriageway had you pulled?

Let's see - at the least - a screenshot of this dashcam video showing the hole just before you drove over it.

Not far. In hindsight, maybe I would have stopped but perhaps the other car knew there was a pothole there on his side as well and wanted me to pass first.

You can't see the hole from the footage so I'll attach both. 

Irrespective of the drivers actions, none were cited in the rejection of the claim. Their claim is that it is not "dangerous" enough. At this point all I am interested in is determining what their criteria for dangerous is. Eg pothole size.

Had I noticed the pothole there's no way I would have gone forward. The fact that £400 damage was sustained at such low speed IMO is an indiactor of how bad the pothole was. I have driven over potholes before at much higher speed, usually because they're either unavoidable or on a motorway etc, and never had any damage. 

https://drive.google.com/drive/folders/1zhJucnmzuLczqGtGsBTgH6kM5tGa5Grq?usp=sharing

DullGreyGuy

1990xrider said:
Their claim is that it is not "dangerous" enough. At this point all I am interested in is determining what their criteria for dangerous is. Eg pothole size.

Look on their website to see if they have their policy published and if not then do a FOI request to get it. 

Remember that their rating will be based on what the person before who reported it stated rather than the reality. So if size is a criteria and the person reported it as being 5mm deep then their rating would be based on that 5mm rather than the 40mm or whatever you say it is now. 

Having looked at the video I personally would have said that it was evident a pothole was there at the verge but clearly being full of water you cannot judge its size. The fact its right at the edge of the road, the fact its a narrow lane at the edge of town presumably with a 30mph speed limit all would point to it being less likely to be deemed "dangerous"

1990xrider

DullGreyGuy said:

1990xrider said:
Their claim is that it is not "dangerous" enough. At this point all I am interested in is determining what their criteria for dangerous is. Eg pothole size.

Look on their website to see if they have their policy published and if not then do a FOI request to get it. 

Remember that their rating will be based on what the person before who reported it stated rather than the reality. So if size is a criteria and the person reported it as being 5mm deep then their rating would be based on that 5mm rather than the 40mm or whatever you say it is now. 

Having looked at the video I personally would have said that it was evident a pothole was there at the verge but clearly being full of water you cannot judge its size. The fact its right at the edge of the road, the fact its a narrow lane at the edge of town presumably with a 30mph speed limit all would point to it being less likely to be deemed "dangerous"

So ECC seem to use a consequence and "likelihood" calculator . It's written in such a manner to deliberately complicate people. This is what the email says:

Following your incident, a post-accident inspection of the site was made on the 26th May

2023. A defect was found, a risk assessment was carried out and as a result the defect was

not considered to be dangerous.

When completing the risk assessment, the inspector takes into consideration a multitude of

different criteria such as the size and location of the defect, the type of road or footpath on

which the defect is situated, and the traffic that is likely to encounter the defect. Once the

inspector has taken all this into consideration, he/she will determine the risk factor of the

defect.

The risk factor is determined by taking the consequence score of the specific defect and

multiplying it with the likelihood score of traffic encountering that defect. The consequence

and likelihood are determined on a scale of 1 to 4, with 1 being the lowest impact and

probability, and 4 being the highest. As a result, defects are therefore given a risk factor score

between 1 and 16, again with 1 being the lowest risk and 16 being the highest risk.

Defects are defined into two categories, a defect with a risk factor between 1-6 are

considered to be Category 2 defects (non-dangerous/low priority), whereas any defect scored

between 8-16 are Category 1 defects (those that require urgent or prompt attention because

they represent an immediate or imminent hazard or because there is a risk of short-term

structural deterioration).

Dependant on the severity and prioritisation, all Category 1 defects will be repaired within 2

hours, or 2 working days on County Roads, and within 5 working days on local roads.

Category 2 defects will be repaired in priority order as within the resources allocated for

highway maintenance.

There is no duty upon any Highway Authority to repair defects that are not considered to be

dangerous. However, in an attempt to avoid non-dangerous defects deteriorating to a

dangerous condition, Essex County Council will raise low priority repairs, and these repairs

will be carried out as and when resources allow.

At the time of the post-accident inspection the defect was considered to have a consequence

score of 1 and a likelihood score of 3. Multiplying these scores together gives the defect a risk

factor of 3. As mentioned above, a risk factor of 6 or lower confirms that the defect is not

considered to create an immediate danger, and therefore is a Category 2 defect.

So based on the likelihood score it was almost certain according to their calculator, that one would hit the pothole. 

Yet according to danger it is the lowest. Surely at the lowest you would get a mild bump and your car would be fine, whereas I had £400 worth of damage caused. If I was a cyclist or if I was travelling at speed the damage to my car or injury to a cyclist could have been catastrophic. 

There is no information on their website about the criteria for dangerous. Is there any better way than FOI as obviously this has been an actual case logged with the council, but their email seems to suggest the only thing I can do now if I don't accept the result is to pursue it through the small claims court. 

I'm aware country roads probably have less priority for pothole fillings but if you look around Billericay even the main roads are riddled with potholes, some of the worst road surfaces I have ever seen. ECC have admitted they are now pursuing a policy of "managed decline". I think Essex has actually been found to have the worst potholes in the UK.