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Potholes in the road – can consumers claim?

publication date: Mar 4, 2013
author/source: Dean Dunham

Dean DunhamWho can I sue?

The Local Authorities throughout the UK are responsible for the roads that fall within their area (if they have been adopted by them). This means that if you damage your vehicle due to a road being in a bad state of repair, you can turn to the relevant Local Authority that is local to the road in question and ask them to pay for the repairs.

What does “adopted road” mean?

This means that the Local Authority has taken responsibility for it. On most occasions this will be the case. By way of example, when a new housing development is built the roads on the site usually belong to the developer who purchased the land, whilst the development is in progress. On completion the Local Authority will then “adopt the road”.

To make a claim:

1. Gain as much information as you can on the pothole you hit as soon as possible after you hit it. As long as it is completely safe to do so, take photos using something such as a ruler to give an idea of scale, and measure the width and depth of a pothole. Make a sketch of the area, showing the location of the pothole as best as possible. This is particularly important if there is more than one pothole, as saying you hit "a pothole" without being able to identify the exact one won't help you. Note also the lateral position of the pothole, i.e. was it in the wheel tracks, near the edge of the road, etc.

2. You now need to know certain information about the road and how the Local Authority looks after it. Only the Local Authority will know this so you need to ask them. Under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 you are entitled to any information (usually free of charge) that is held by a council or highways agency about a road and the safety inspections of it. Armed with these laws you need to send the Local Authority an email with the heading "Freedom of Information Act - Request for Information".

Your email needs to identify the road and ask the following questions:

    1. Dates of all safety inspections undertaken on the carriageway in the two years preceding the date of your incident
    2. Details of all carriageway defects identified during safety inspections in the two years preceding your incident
    3. Details of how carriageway safety inspections are undertaken, including whether walked or driven, the speed of the inspection vehicle and the number of persons in the vehicle.
    4. The intended frequency of carriageway safety inspections.
    5. Details of all complaints and/or enquiries relating to the carriageway, received in the two years preceding your incident.
    6. The hierarchy classification.
    7. The road/section number.
    8. The defect intervention criteria adopted in relation to the identification of all categories of carriageway potholes (in other words, this means how they define a pothole as requiring attention)
    9. The time period(s) adopted between identification and repair (temporary and permanent) of all categories of carriageway defects.
    10. Whether or not the authority has formally adopted all or part of the standards contained within the national code of practice for highways maintenance management.
Do I really need to do all this?
Unfortunately yes. The reason is that under section 58 of the Highways Act (another law governing roads) Local Authorities can avoid paying compensation to people who have damaged their vehicle after driving over a pothole if they can show that they have taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly.

What next?

Armed with the information that you have received from the Local Authority send them a letter and make your claim. Don’t be surprised if they reject the claim to start with. If this happens write back and demand that they look at your claim again.

For more information visit Dean’s website.