Pothole claims can be very hard to win – that’s why you need the best legal advice!
This story comes from the BBC and covers a cyclist who has made a claim for personal injury compensation having rode over a pothole and been injured as a result. Cyclists are one of the most vulnerable victims of pothole accidents, and the injuries the victim can end up with can be fairly serious.
The case here of the cyclist in the BBC news article is testament to this – he broke his collarbone and hit his head hard when he fell victim to a pothole. So why has this case been rejected by the council?
The way the law works when it comes to pothole compensation claims makes it extremely hard to win against a council or a local authority. The Highways Act 1980 puts a duty on the council to have a reasonable system of inspection and maintenance to look out for defects like potholes, and to sort out reported ones as quickly as possible.
Section 58 of this act gives the council a special defence against a claim if they can prove that they had a good enough system of inspection, and that they have kept to it. There is also a minimum size criteria as well, which means that a defect is only seen as dangerous enough to rectify if it is of a certain size. The law doesn’t necessarily have a specific measurement criteria, but the general rule lawyers and insurers use is the “one inch rule” that can mean a pothole that is less than an inch deep is not seen as a defect to act on.
What this means
What this means is that you could trip and fall on a huge pothole on a road that is inspected every, say, six months. If the road you fell on was last inspected five months ago, and the pothole that caused your accident was not there at that point, the council will defend the claim and argue that the pothole must have formed after their last inspection. Because the next inspection isn’t due for another month, they can argue that the pothole has appeared between inspection intervals. As such, they may not be liable.
When it comes to the size, they could inspect a road and they could find a pothole that is half an inch deep. But because it isn’t at least an inch deep, they could just leave it on the basis that it is not deemed dangerous enough to warrant intervention.
So how do I win a pothole compensation claim?
If we can prove that the pothole has been there for longer than their inspection periods, we can win a case. But this can be very difficult to do. We could argue that the system is not good enough for the area as well, but it’s normally the case that roads are inspected more frequently based on how busy they are.
If the pothole has been reported and the council has failed to do anything about it quickly enough, we could win a claim. But defining how quick they have to act is not necessarily easy as there are no hard and fast rules as such. It is sometimes accepted that they should rectify it within at least four weeks or so.
In this case, the cyclist in the BBC news article, allegedly swerved to dodge several potholes but was unable to avoid one which caused the accident. The council alleged that there were no defects present four weeks before the accident, presumably based on their inspection records, and in addition they argued that it was below their accepted danger threshold when it comes to measurements. The report states that it was 38mm deep, falling just short of their danger threshold of 40mm.
As such, the council here actually have two points to defend the claim on it would seem. But one thing that has been raised is that the pothole was apparently still there two months after the accident. Whether this can be raised as an argument in favour of the victim here could be down to exactly when the council were made aware of it, and what their system of inspection was for that road.
So is this fair?
Well the law is the law, and they appear to be defending the claim based on the classic arguments. Unfortunately they seem to be able to argue both on this occasion – alleging the pothole wasn’t there on their last inspection, and arguing it wasn’t deep enough to be classed as something they need to action.
A spokesperson said: “The well used roads in the county are inspected at least every month. Unsafe potholes are fixed within 24 hours, and others, if they meet the national safety requirements, will be repaired within 28 days which is in line with UK guidelines.”
That being said, we have seen many instances where this has been found to be inaccurate. There are many ways and means we can use to find out whether a defence being raised by a council is a good enough one or not.
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IMPORTANT: advice on this page is intended to be up-to-date for the 'first published date'.