You’re doing 40mph on a country road (which is at the limit) and it’s dark (so you can’t see the road properly) when you hear a huge smash as your wheel dips in to an “impossible to notice” pothole hiding in the road; one with enough depth to do some serious damage to your car! You immediately feel the car isn’t right, so you pull over and discover you’ve suffered a blowout from the tyre being slashed by hitting the pothole at force.
What’s worse, is you cannot change the tyre yourself because the last time you had a service, the nice men at the garage used their automated tools to put the wheel nuts back on! Not only that, but it isn’t easy to change a tyre in the dark and you have breakdown cover for a good reason. So, you call your breakdown recovery service to come out and change the tyre for you, only to be told there’s a longer than normal call-out time for them to get to you because of how busy they seem to be.
Half an hour later after the time they were meant to arrive, you give them a call only to be told it will be another hour. Repeat the last step and then some, and you’ve got a three and a half hour wait on your hands!
Sound like a nightmare? I’ll be honest – I’m venting what happened to me last night. But the point of me highlighting this is that, for the sheer trouble and hassle it causes you, getting any recompense for what has happened will not be easy to do.
Potholes are normally caused by water seeping in to cracks in the surface of paths and roads that then expands as the temperature drops and the water freezes. Simple physics dictates that as the water changes in to ice and expands the surrounding ground cracks open and forms a pothole. The council or whichever highways agency has the jurisdiction of the pothole location is responsible for reasonably maintaining and inspecting the roads and paths within their control. So if a pothole is present and causes you some damage, can you sue the council or responsible agency?
The short answer is yes, you can. The long answer is that you can sue them, but you will not necessarily be successful.
Potholes can appear quickly – and the council or responsible agency is funded by the public purse. So the way the law balances this problem is by allowing the council to have a system of inspection and maintenance in place that reflects how busy the area in question is. For example, a very busy main road may need to be inspected by the local authority between every month to three months, as an example. The country road I blew my tyre, dented my alloy, and smashed out my tracking on may only be inspected once every year!
However, if the defect has been reported, the local authority responsible must, as quickly as they reasonably can, make good the area or repair the defect entirely. You may have noticed I’ve used the word reasonably a lot – the reason, is because that is pretty much the way the law works in this area. It can be quite grey, and open to interpretation. You might say that a defect should be repaired within a week of it being reported, whereas the local authority may say, and stick by, a month. If they can prove they have done all that is reasonably expected of them by law, they have a Special Defence under Section 58 of the Highways Act 1980 which pretty much makes it nigh impossible to succeed with a claim, in the event they can successfully argue the defence.
So I’m £200 down right after Christmas, which is naturally annoying, as a result of the pothole that damaged my car. But what are my chances, or your chances if you have been injured due to a pothole, of claiming the compensation you feel you deserve? Well, it all comes down to whether the local authority responsible for where the accident occurred has kept up their end of the bargain for inspections and maintenance. I might give it a try in my spare time, but I’m not hopeful of a victory!
If you have been injured due to a pothole, you can make a claim; the point I’m making is that it is difficult to succeed. We have been doing this for years, and we like to give you the honest advice upfront. Don’t get me wrong – we fight tooth and nail to get you a payout, and we have overturned many attempts by insurers and authorities to use the defence. But the odds are, unfortunately, stacked against you.
