Potholes are everywhere at the moment – mainly because of the unpredictable weather we seem to be having at the moment. However, can you claim compensation if you are unfortunate enough to injure yourself by tripping and falling on them?
Although you may be entitled to claim it is important to make you aware that these can be very difficult cases to win. This is mainly because it is unreasonable to expect the local authority to know whenever a pothole appears and to run to it immediately and repair it- they cannot stand all day watching the roads (apparently they have other things to do). Therefore it can all come down to evidence!
As the claimant you have to prove that the part of the highway where the accident occurred was not reasonably safe. (You may notice the term “reasonable” comes into play a lot here but unfortunately there isn’t any sure fire definition it will come down to individual circumstances.) So in general when will it be considered that a highway will not be “reasonably safe”?
Solicitors refer to the test of reasonableness and foreseeability of danger – there are many “rumours” regarding this rule such as the defect has to be a high as a 50p or a thumb – but these are not strict rules in law. The courts have consistently refused to comment on what size a defect will be considered unsafe and therefore it is important to gather photographs showing measurements to ensure your solicitor can:
- Assess whether there is a potential claim
- Prove to the other side the danger if the defect is subsequently repaired.
Although it is unlikely, a “trivial” defect may give rise to a claim – if this has been unexpectedly created and has come about there could be an argument to be made.
How can the local authority defend a claim?
Many people when they are suffering from serious injuries can find it hard to believe there is a defence to these matters, but in these claims there is, and it can prove difficult to overcome.
The defence is under S 58(1) Highway Authority 1980 and states…
“It is a defence….to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”
Therefore if the local authority has documents showing the road was inspected 2 days ago and nothing found and now (after a flurry of snow and ice) there is a huge pothole it may be considered the inspection 2 days ago allows them to have a successful defence.
Of course, each case is different and therefore it is imperative to seek the advice and assistance from a personal injury specialist. It can depend on the location of your accident and the main use of any road- for example: it is likely a main road which bears a lot of traffic will be expected to be maintained more regularly than a side road that is hardly ever used.
Here at the Injury Lawyers, we have extensive experience in these types of claims so contact us today.
