Winter is what I like to call “pothole season” because they’re far more likely to occur in the colder months. Generally speaking, a pothole is formed when water seeps in to cracks in the surface and then freezes and expands in low temperatures. This causes an extreme amount of pressure to build up in the concrete and can cause it to crack and break.
Over time, the hole normally will deepen and deepen. As such, cold weather is a common catalyst for the creation of pothole, divots, and other defects that cover our highways and paths.
So what happens if you trip and / or fall because of a pothole? Or what happens if you drive over a monster of a hole and end up with an injury?
Can you claim?
You are entitled to make a claim for personal injury compensation if you are injured by a pothole. There is a duty under the Highways Act 1980 for a council or local highways agency or authority to maintain roads and paths at the expense of the public as reasonably as possible.
However, the law isn’t very Claimant friendly I’m afraid. Under the same act, specifically in Section 58, the council is allowed to use a special defence which practically prevents them from having to pay you out for a pothole compensation claim. To use this defence, they have to prove that they have a reasonable system of inspection and maintenance for the area where the pothole has formed, and prove that they have adhered to it. In addition, they must show that they had no lengthy prior knowledge of the portholes existence either.
So what does this mean?
This means that they only have to check for potholes at reasonable intervals, which could be every one to three months for busy highways, or even as long as every 12 months in country areas. So if you are injured by a pothole and the pothole wasn’t there the last time an inspection was carried out, and the next inspection isn’t due yet, they can defend your claim.
To give you a practical example:
- You trip on a pothole on London Road on 10th February 2014.
- The road is inspected every six months by the council.
- The date of the last inspection was 15th November 2013. The next inspection is therefore due for 15th May 2014.
In this example above, you have been injured in between an inspection period, and if no one has reported the pothole to the council, they can show they have a reasonable system of inspection and in reality don’t have to pay you a penny.
When it comes to potholes, this is generally how the law works. Winning a claim means that you must prove either:
- The council has failed to adhere to their own system of inspection and maintenance; which could be done by proving that the pothole has existed longer than their last inspection.
- Their system of inspection when it comes to time lengths between inspections is unreasonable.
Proving either of the above can be a massive uphill struggle. Even if the pothole was there it needs to be classed as a “reasonable danger” and as such the rule of thumb is that it needs to be at least one inch deep.
But I’m badly injured, does this count for anything?
The short answer is no. You could, in theory, be injured for life and be totally reliant on care and unable to work for the rest of your life as a result of a pothole injury, but if they have a reasonable system of inspection, they can defend your claim.
So should I even bother claiming?
Despite the bad news above, it’s defiantly worth claiming. We offer a full No Win, No Fee service and it costs us next to nothing to set up a file and submit a claim to the other side and see what response and records they have. We have in the past been able to find flaws in their systems and evidence online that they have missed potholes, so it isn’t all doom and gloom!
If the claim does win, our clients keep all 100% of their payout as well. For help and advice, call our free claims helpline on 0800 634 75 75 today.