potholes

Pothole misery – who is responsible

Potholes. They are the bane of every motorist, motorcyclist and cyclist in the land. They have even been known to claim the odd pedestrian or two, and it seems that the problem is getting worse. With hundreds of thousands of miles to look after, local councils and the Highways Agency freely admit that they are stretched to the limit to try and stay on top of all the cavernous craters that are blighting our roads. Local councils are trying their best to deal with the problem but, as is the nature of these vacuous voids, as soon as you fill one, another one pops up.

After yet another cold, wet winter, the UK’s road surfaces are in a pretty dreadful state of disrepair. Any pothole deeper than 40mm is usually regarded as a danger to road users but, if we are honest, there are some roads where the residents dream of only having to deal with 40mm potholes. The real problem, though, is the damage that these blots on the landscape are causing to our vehicles. If you do damage your vehicle by hitting a pothole, what can you do and who is responsible for the cost of repairing that damage?

First things first…

If you do end up hitting a pothole, the first thing to do is stop. Even if there is no visible damage, there could be underlying issues to the steering or the integrity of the wheels.

The vast majority of people now have access to some form of camera on their phone so, if it is safe to do so, get some clear pictures of the pothole and make a note of its exact position, the general condition of the road surface and the date and time of the accident. If you can, use an object to give a sense of scale; something simple like a drink’s can (which are generally of a standard size) in the photo next to the pothole will help to show how big the pothole is.  It is also useful to take measurements of the pothole and photos of the damage to your vehicle.

Report it straight away

Regardless of whether you are planning to put in a claim for any damage, you should report the pothole to the local authority or borough council. That pothole could cause much more than just a buckled wheel or flat tyre to cyclists or motorcyclists so, as soon as the council know about the pothole, they can take action to prevent anyone having a serious accident.

If the pothole is on a motorway or major A road then you will probably need to report it to Highways England or Traffic Wales.

Getting the damage fixed

You are going to need to get the damage fixed but before you settle on one repair shop, get several quotes first. This demonstrates that you have done everything you can to resolve the problem as economically as possible.

Keep all the quotes (and not just the one you finally settle on), all invoices, receipts and any other paperwork. If you had to get roadside assistance from your breakdown and recovery service, make sure you keep all the paperwork from that too.

Who pays?

The usual course of action is to contact the agency responsible for the upkeep and maintenance of the road surface. Generally, that is your local council, although some roads are private. Councils do have a little bit of a ‘get out of jail free’ card when it comes to potholes as they cannot be held responsible for a pothole they did not and could not reasonably have been expected to know about (which includes ones that have not been reported or those that could not have been reasonably identified during regular road surface condition checks). That may seem a little harsh but it is possible to challenge this defence.

Appealing against the statutory defence clause

Councils are required by law to operate a reasonable system of road inspection and maintenance. This dictates how often roads are inspected, what damage (in this case, potholes) is identified, and how quickly repairs should be undertaken.

If your claim for compensation as the result of damage from a pothole has been rejected and you feel that it is unfair, you can ask to see the details of the council’s road inspection reports. If the pothole that did the damage to your vehicle has been identified but the repairs have not been carried out within the required timescale, then the council should not be able to use their statutory defence to avoid paying you the compensation you deserve.

How much will I get?

The average claim ranges from £300-500, and in successful cases you should either receive part or all of the amount claimed. If the damage is considerably more, or hitting the pothole caused physical injury then the best thing to do is to contact a claims expert who will be able to help you pursue your claim through the courts if necessary.

To discuss any commercial and dispute resolution issue  you may have you can contact Dianne Thomas on dthomas@berryandlamberts.co.uk

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.