We are all still seeing the effects of the winter madness over December last year that brought Britain to a standstill after seeing some of the most severe snow showers in years. The effects we are still feeling are the pesky potholes which have littered our roads and pathways since the big freeze; caused by water seeping in to cracks in the surface, freezing, and expanding, pushing and cracking the concrete, and forming hundreds – if not thousands – of potholes.
Unfortunately, claiming against the council can be quite a difficult process – so it’s always best to get a top quality injury lawyer on the case to increase your chances of success. The reason it is difficult is because of the legislation we have in place concerning the maintenance and repair of our highways. In reality, the local authority in charge of a stretch of highway is only responsible for the reasonable and practice inspection, maintenance, and repair duties.
But what does this mean?
What it means is that each authority responsible for a particular stretch of highway must adhere to an inspection regime that is reflective of the highway itself. For example – a busy main road is probably inspected and maintained every 3 – 6 months. A less used country road is probably only inspected either bi-annually or annually. Each authority can have a different regime, and each road or path can be part of a different inspection system. The only differential is that if a defect is reported, the responsible authority must make safe the area or repair the defect within a reasonable and practical time frame.
You have probably noticed that the words “reasonable” and “practical” are used a lot. They’re not the clearest of words, but this is the way the legislation translates.
So, what does this mean for claiming? It’s probably easy just to give you an example:
Mr Joe Bloggs unfortunately trips and falls due to a pothole in the road. He has broken his arm, had some time off work, and pursues a claim for compensation. Joe tripped on the paving slab on 1st March 2011 on a stretch of highway that is inspected every 9 months. Unfortunately, the last inspection for the area where he fell was back in August 2010; meaning the next time the authority is due to inspect the highway is in May 2011.
At the time of the last inspection in August 2010, no defect was picked up on the inspection results, and nothing has been reported to the authority since; it therefore appears that the defect has developed at some point between August 2010 and the date of Joe’s accident in March 2011. Because the local authority kept up with their inspection regime, they can successfully defend the claim under Section 58 of the Highways Act that affords them a special defence from claims given that the defect has developed at some point between inspection periods. Joe is therefore entitled to no compensation.
Doesn’t seem too fair does it? Especially since Joe had to have 6 weeks off work, lost thousands of pounds in earnings, and now has a permanent ache in his arm from the fracture, and a scar from the operation.
On the flip side of the coin – is it fair for an authority to have to pay out for a defect that has developed between their inspection regimes? They can’t inspect and maintain every stretch of highway 24 hours a day, 7 days a week, 365 days a year. It’s not feasible, and certainly way too costly.
It’s a difficult situation to be in – but that’s the law. Had the local authority failed to inspect the area in accordance with any policy they have, or had they failed to make safe or repair the defect following it being reported, say, two months ago, then a claim can still be brought. The authority defending the claim must disclose a significant degree of documentation to support their defence; inspection regime results, perhaps even dating back a few years, to prove they abide by them.
So – there you have it! An insight in to the world of claiming against the council or local authority after an accident. Whatever you do though, make sure you get a Genuine No Win No Fee lawyer to represent you for a potential case. Dealing with the council or authority directly can prejudice your position – with a proper No Win No Fee lawyer, you will not be charged if the council or local authority has their special defence and no claim can be brought against them.
For further advice, please feel free to get in touch! If you have just been in an accident involving a highways defect, ensure you take photos of the defect, and perhaps note the addresses of any local business that may have CCTV footage, or any local addresses that may be able to provide witness evidence to prove a defect has been there for longer than the councils inspection regime claims; this has happened before…
