Pothole damage claim.

1990xrider

OK, so I've submitted a FOI asking what they consider to be "dangerous" in regards to a pothole, and also seeking any information they have on the pothole eg the depth, if that is the determiner of what is dangerous.

If I have any issues would I be better trying a SAR as opposed to FOI? Given the information may be more specific to my case

DullGreyGuy

1990xrider said:

OK, so I've submitted a FOI asking what they consider to be "dangerous" in regards to a pothole, and also seeking any information they have on the pothole eg the depth, if that is the determiner of what is dangerous.

If I have any issues would I be better trying a SAR as opposed to FOI? Given the information may be more specific to my case

Different tools for different things... you cannot get a copy of the policy under a SAR request nor details of the prior report. You can only get detailed in formation about your claim against them using a SAR

1990xrider

So I think I will be taking it to the small claims court. According to ECC a category 2 defect, which mine is classed as, presents "no immediate hazard". According to ECCs website only a court can determine what is "dangerous". I would argue damage to a car would be a hazard. People online have said they've seen cars been taken out of that pothole by recovery trucks it's so bad and waterlogged. 

1990xrider

So council have come good on FOI requests but far more basic than what I asked for. 

They've given what I've interpreted to be the L W H of pothole , 1m x500mm x70mm which is pretty big, not as deep as I thought but pretty bloody big. They've acknowledged in the report action is required but rated it a low priority of 4. But there is nothing in the report about previous potholes ! Theyve only given data in the last year when I asked for the last 2. No other potholes mentioned only the presence of ice in December 22' which was removed. 

Where do I go from here ? 

ECC haven't explicitly told me what they consider to be "dangerous" only giving me a consequence score of 1 for this pothole, the lowest, according to their website this means the effect on a vehicle would be "negligent". I'd hardly call £400 of damage negligent, this is clearly a very wide pothole. Annual walks made apparently which seems like they've done their job on their part . So maybe they're covered, but I'd argue that they were flawed in their grading of the pothole. The pothole was reported earlier which is why I don't get why it's not showing the initial report.

HillStreetBlues

I do see your POV
The council talks about risk factors, but that seems to me about the council risks. It will repair a pothole on a busier road as more cars will have to dodge a pothole, so the likelihood of damage resulting is more than on a quieter road. But should that absolve a council from when it does happen on a quiet road?
When crossing a road you should look both ways, doesn't mean you shouldn't do it a quiet road, just less chance of getting run over if you don't bother looking.

1990xrider

HillStreetBlues said:

I do see your POV
The council talks about risk factors, but that seems to me about the council risks. It will repair a pothole on a busier road as more cars will have to dodge a pothole, so the likelihood of damage resulting is more than on a quieter road. But should that absolve a council from when it does happen on a quiet road?
When crossing a road you should look both ways, doesn't mean you shouldn't do it a quiet road, just less chance of getting run over if you don't bother looking.

Ive just located this. So clearly not a score of 1 as damage to the vehicle was sustained. I'd argue 3 would be a fair grading, perhaps 4 at a push. 

The council have acknowledged there is a high likelihood score (3) of 61-80% of road users being unable to take evasive action to avoid the pothole. It was also covered in water at the time backed up by photographic evidence from myself. 

So whilst I might have further to go to prove the council were negligent in their duty to fix the road, by the council's own metric they have failed in their assessment of the pothole. Is that enough to take them to court, given they have said the only opportunity to appeal is through that? 

I'd like to complain about their response to the FOI first as they didn't address the fact I wanted data from Oct 21 to May 23, Oct 21 was when the first report of the pothole was made .

HillStreetBlues

Going by their own rating of 3 for likelihood gives you a great start, as that can be agreed upon.
Clearly with the damage you have  it can't be a 1 or 2  so the minimum score is 9, that falls within Category 1 which is 5 working days, as you proved they have exceeded that. unless I'm missing something the council defence has to be that pothole didn't cause the damage.

1990xrider

HillStreetBlues said:

Going by their own rating of 3 for likelihood gives you a great start, as that can be agreed upon.
Clearly with the damage you have  it can't be a 1 or 2  so the minimum score is 9, that falls within Category 1 which is 5 working days, as you proved they have exceeded that. unless I'm missing something the council defence has to be that pothole didn't cause the damage.

What would be the best course of action from here ? Emailed the garages to get a confirmation they caused the damage but haven't heard anything so maybe I'll try in person.. I do have dsshcam footage of going into the pothole which I sent to them and you can quite clearly hear the crunch. 

The thing is the email they sent to me telling me why they wouldn't accept the claim said that 

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

highway maintenance." So their response differs to the pdf they sent me when I asked what their policy was. So which can be true? The pdf was only from 2022. 

The other issue I have is proving they knew about the pothole as I've only got a screenshot from a few days after hitting the pothole that it was logged in 2021. And not convinced that was the original pothole as there are a few logged on there..but no potholes mentioned in the maintenance record. 

Do you think I have enough to take to small claims court?

HillStreetBlues

You will need to collect as much evidence as possible if you wish to try and claim, having a dash cam that captures the incidence with sound will work in your favour.
As for proof that they knew about it, having a screen print would help as then they would have to show that wasn't the same pot hole. The few pot-hole I've seen the council have said "you can't claim as we never knew about it" But they haven't tried that defence (as yet) so it makes me think (could be wrong)  that they knew about the pot-hole.
I don't know if you do have enough to win at the small claims court, but I'm an odds man. You take it court and lose your an extra £50 down, so 12½% more.
So you're taking a punt at  8 to 1, gambling £50 to get back £450. If had dash cam, evidence from garage that it was pot-hole damage and the council classing it as only minor jarring, I would play those odds.

1990xrider

HillStreetBlues said:

You will need to collect as much evidence as possible if you wish to try and claim, having a dash cam that captures the incidence with sound will work in your favour.
As for proof that they knew about it, having a screen print would help as then they would have to show that wasn't the same pot hole. The few pot-hole I've seen the council have said "you can't claim as we never knew about it" But they haven't tried that defence (as yet) so it makes me think (could be wrong)  that they knew about the pot-hole.
I don't know if you do have enough to win at the small claims court, but I'm an odds man. You take it court and lose your an extra £50 down, so 12½% more.
So you're taking a punt at  8 to 1, gambling £50 to get back £450. If had dash cam, evidence from garage that it was pot-hole damage and the council classing it as only minor jarring, I would play those odds.

Yes all good points. The dsshcam does have sound and you can hear the very loud sound and my reaction as I hit the hole.  I do have a screenshot from a few days after the accident showing what appears to be the same pothole as being deemed in need of repair but not immediate repair on the 21st October 2021. The council sneakily removed this but I had screenshot it ages before and the screenshot also shows the date on the computer, I know theoretically it could all be edited but metadata on the image will corroborate the date if it comes to the council denying, and presumably their own records would show (haven't seen it so far). 

Yes , that's the main defence and most people don't even get as far as making a claim because the council say they didn't know about it. Eighteen months is a long time for them to acknowledge the existence of a pothole and do nothing.

In terms of garages, all they asked for initially were quotes or invoices which I provoided. Two garages as first one didn't pick up on something else. Do you have any experience on whether a garage would provide an explanation ? Don't want to pay because that would surely be prejudicial. If I can't get them I wonder if I'm.still good. I sent my work manager a text on the day of the incident informing them I might not make it into work the next day because I would have to take my car to a garage. Wonder if that would help? Reduce the argument that I simply made up the claim , and I suspect if they thought this they would have said it. Wonder if I could just approach a mechanic as part of evidence for me and ask them what kind of damage would be expected on collision with a pothole of this size etc. 

Now I know before I send the case off to the SMC I have to inform the council, if only just to show the court I've done everything I can to avoid litigation. Should I hold this "trump card " so to speak close to me so the council will be caught off guard or do you reckon they're already aware etc. 

I'm just worried the council will fast track the case get a load of solicitors and experts in and on the that the probability of me losing goes up and me having to pay their fees. 

I do have a lot of annecdotes from locals online telling me their experiences of the pothole even a firefighter saying cars had to be winched out of it. But I think someone here said calling witnesses would complicate the case