Another Pothole Claim

sudsy

Tyre wrecked by a pothole, late Nov 2023, measuring 4' long by 15" wide and over 4" deep at 5.30am in the morning on the way to work on a single track rural lane, doing 25mph. Pothole on tyre line and hidden by water. RAC recovered car to local garage. Reported the pothole online the same day. Once all bills known claimed from local Council online with photos of the pothole showing depth etc.

Council rejected claim.

Obtained, with FoI request, details of inspections etc for that stretch of highway. Transpired that there had been 7 reports of that pothole in 7days. Two of those (including mine) reported 3 tyres wrecked. The reports also showed that the pothole had been inspected and risk assessed the same day as the first report. Assessment deemed that a repair would be made within 28 days. The assessor wrote that they marked the verge as it was very wet (meaning the highway was almost a small stream).

In my follow up letter, after the rejection to my online claim, I quoted the Code of Practice for Well Managed Highway Infrastructure, which states that defects which require urgent attention should be made safe at the time of the inspection and making safe may constitute displaying a warning notice. It was my contention that the size of the pothole made it urgent (a motorcycle would be on that tyre line) and marking the verge of a rural lane, which was not nice mown grass under a street light but churned up mud, weeds, bits of wood etc in the dark, was not displaying a warning notice.

I also asked in my FoI request for details of assessor qualifications and CPD records. There was no CPD record included in the reply. So my 4 page follow-up letter not accepting the online claim rejection and quoting the aforementioned CoP was rejected the next day by the Insurance Dept justifying the rejection with   'our role is to protect the public purse, and it is clear from our investigation that all obligations in respect of the Highways Act 1980 have been adhered to and that there was no negligence on the authority’s part.'

This leaves small claims court but I'm not sure and would appreciate others views on this.

DullGreyGuy

Personal information is excluded from Freedom of Information requests. There is no legal requirements for CPD on how to use a tape measure and a chart.

Councils get to set their own rules, as long as they then obey their own rules that is considered acceptable. They do have to balance a finite budget across all the services they have to provide. Which school or library do you think they should shut to cover pothole repairs?

So it shows they inspected it on the first day of the report and based on their criteria, mainly that is a minor lane, deemed a fix in 28 days was appropriate. Your accident was before the 28 days was up so they were still compliant with their rules and so not liable. 

Hoenir

Do you have dashcam footage to evidence your speed? 

cw8825

sudsy said:

Tyre wrecked by a pothole, late Nov 2023, measuring 4' long by 15" wide and over 4" deep at 5.30am in the morning on the way to work on a single track rural lane, doing 25mph. Pothole on tyre line and hidden by water. RAC recovered car to local garage. Reported the pothole online the same day. Once all bills known claimed from local Council online with photos of the pothole showing depth etc.

Council rejected claim.

Obtained, with FoI request, details of inspections etc for that stretch of highway. Transpired that there had been 7 reports of that pothole in 7days. Two of those (including mine) reported 3 tyres wrecked. The reports also showed that the pothole had been inspected and risk assessed the same day as the first report. Assessment deemed that a repair would be made within 28 days. The assessor wrote that they marked the verge as it was very wet (meaning the highway was almost a small stream).

In my follow up letter, after the rejection to my online claim, I quoted the Code of Practice for Well Managed Highway Infrastructure, which states that defects which require urgent attention should be made safe at the time of the inspection and making safe may constitute displaying a warning notice. It was my contention that the size of the pothole made it urgent (a motorcycle would be on that tyre line) and marking the verge of a rural lane, which was not nice mown grass under a street light but churned up mud, weeds, bits of wood etc in the dark, was not displaying a warning notice.

I also asked in my FoI request for details of assessor qualifications and CPD records. There was no CPD record included in the reply. So my 4 page follow-up letter not accepting the online claim rejection and quoting the aforementioned CoP was rejected the next day by the Insurance Dept justifying the rejection with   'our role is to protect the public purse, and it is clear from our investigation that all obligations in respect of the Highways Act 1980 have been adhered to and that there was no negligence on the authority’s part.'

This leaves small claims court but I'm not sure and would appreciate others views on this.

how much has this cost you? and how much do you value you time?
if IF you were to win - IMO your unlikely to - ITs not going to be quick and the amount of time and effort far outweighs the loss you have suffered

Ectophile

They aren't going to give in until you issue a court summons.  Sending a letter saying "no" only costs the price of a stamp.

If it gets to court, you'll have to persuade the judge that the council's actions weren't appropriate given the nature of the pothole.  I don't think anyone here can know what the outcome of that case would be.  It will be down to the judge on the day and the evidence you and the council presents.

DullGreyGuy

Ectophile said:

They aren't going to give in until you issue a court summons.  Sending a letter saying "no" only costs the price of a stamp.

You think their staff work for free? That someone donates them computers, electricity, buildings etc? Going backwards and forwards on defending claims costs a lot more than the price of a stamp. 

Nobbie1967

DullGreyGuy said:

Ectophile said:

They aren't going to give in until you issue a court summons.  Sending a letter saying "no" only costs the price of a stamp.

You think their staff work for free? That someone donates them computers, electricity, buildings etc? Going backwards and forwards on defending claims costs a lot more than the price of a stamp. 

Clearly they don’t, but councils are willing to spend a fair bit of money to obstruct people pursuing a claim to dissuade others. They know the legal system well and use this to their advantage. A case in point:

https://forums.moneysavingexpert.com/discussion/6466779/actions-before-small-claims-court-with-council#latest

If you have too much time on your hands and like a challenge, then it might be an interesting exercise, but for most people it’s just not worth the time.

Graeme1978uk

What does the local authority state for repair timescales? 

I recently had a payout for a pothole that had been reported 4 days earlier and inspected the following day. The inspection measured the pothole at 90mm but I provided evidence that it was 180mm. Had it been correctly measured it would have had a 2 day repair time as it was over 100mm and would have been repaired prior to me hitting it.

Lancashire County Council has the 2 day repair time for all potholes over 100mm depth regardless of road classification. You’re saying it was 4” deep which is over 100mm so might be worth checking what the local authority measured the depth as against your measurement.

sudsy

Thanks everyone for your input. To answer the questions above:

I didn't ask for personal details - just CPD records i.e. had CPD been carried out for staff and contractors -  not for how to use a measuring tape (that made me smile) but to undertake a risk based approach assessment.

A.5.3.4. A programme of Continuing Professional Development and training for all staff and others involved in developing and implementing the risk based approach should be provided to enable them to maintain up to date knowledge and skills and specifically to understand and implement the processes described in this Code. It is recommended that agents and contractors are required to demonstrate that their personnel are adequately trained and competent for the work they undertake.

Unfortunately no dash cam but it is a dangerous stretch of single track lane, on a blind bend, a mile from where we live (for 33 years) so we always drive slowly there, as delivery drivers etc do not.

The inspection measurements of the pothole (5 days earlier) agreed with mine (1m X 0.6m X 105mm).

It cost £286 for a new tyre, checking and resetting my tracking, inspection of my suspension and rim. As a pensioner in their mid 70s that is a lot of money for me, which brings me back to the question of whether I pursue this to a claims court as I would accept not winning my case, if that is the final decision, but I don't want to end up paying extortionate legal expenses. The letter from the Council asked, if it was my intention to litigate, to serve proceedings upon Perry Hill of DWF LLP, London, who sound expensive.

My case rests on the fact that Section 58 was not satisfied, as quite clearly the part of the highway to which my claim relates was dangerous to traffic because the ‘Risk Based Approach’ did not follow The Code of Practice for Well Managed Highway Infrastructure, specifically paragraph A.5.8.3. If it had, I and other highway users would have been warned of the pothole hazard by a warning notice.

(A.5.8.3. Defects which are considered to require urgent attention should be corrected or made safe at the time of the inspection, if reasonably practicable. In this context, making safe may constitute displaying warning notices.)

And immediately after my accident a warning notice was placed next to the pothole, which should have happened at the time of inspection.

I think the weakness in my argument is that it appears the local Council are not bound to adhere to The Code of Practice for Well Managed Highway Infrastructure as it is just a Code of Practice and not a legal requirement. 

DullGreyGuy

The assessor, who you asked for CPD on,  is a guy following a chart/flow diagram... if A road and not dual carriageway use table A, if B road use table B, if C road use table C, Dual Carriage way table D, unclassified table E. Each table is max depth against distance from verge. Look up the measurements and it gives gives a rating, the rating will dictate if its repair in 48hours all the way down to non-urgent repair on a best endeavours basis. 

The assessor doesn't set the policy, the CPD if there was any would be on tape measure use but these days there may be an app for that instead. 

Knowing councils who set the original policy is probably a committee and who sat on that committee has been lost to time and it will be reviewed periodically by another committee. A risk based approach still allows latitude for councils to decide that maintaining libraries or keeping fortnightly bin collections are more important than ensuring medium risk potholes on an unclassified road.