Seeking to take county council to court for pothole damage

**R0b** · 10th August 2023, 07:15:AM

Hi,

It sounds like you've already done a great deal of work to support your case but I will try to answer some of the questions you raise.

I believe I've proved that the pothole was dangerous according to their own criteria, but what about negligence?

I think you need to identify what claim you are bringing, is it a claim under the Highways Act 1980 or are you looking to bring a claim for negligence, as they are two distinct and separate legal actions.

I believe the legal criteria under the HA 1980 is that (a) the highway was in such a condition that it was dangerous to traffic or pedestrians; (b) the dangerous condition was created by the failure to maintain or repair the highway; and (c) the injury or damage resulted from such a failure.

Whereas for negligence claims, you have to show the authority (a) has a duty of care towards you, (b) that they breached their duty, (c) as a result of the breach they caused you to suffer loss or injury and then also (d) is it fair, just and reasonable to impose a duty of case on the authority based on the circumstances. As you can see the legal tests are different so you need to be careful on how you word any claim, so the more specific you are the better e.g. you are bringing the claim under section 41/42 of the Highways Act 1980.

I know there is the £50 charge to start smc proceedings but how much could I lose in money if I lose, could it be the full £750 if they call in experts etc?

Costs allocated to the small claims track are not entirely excluded but they are extremely limited and these are listed under CPR 27.14 (link here). The court has discretion to award costs but the usual rule is that the successful party should be award their costs. The court can deviate from the costs rule, for example if you argue the authority has been unreasonable in their conduct during proceedings, if they failed to take into account or consider any offers of settlement which then resulted in further costs and resources and they didn't get any more favourable judgment than what was previous offered.

Obviously before I start smc I will send an email and letter outlying my case, I have compiled a 20 page report on the matter.

This should be done by sending a letter before action. There is no hard or fast rule in how to style this out but the more clearer you are and succinct, it may be that the local authority may just want to settle there and then. Of course they may be stubborn and call your bluff but for less than £400, it will cost them way more in defending the case going to court than to pay up so it wouldn't be commercially viable to see this through to the end. However, there are some authorities that just don't think like that and will defend as a matter of principle, potentially until the very last minute.

I have also obtained anecdotal evidence from locals including a firefighter saying the damage cars have had through the hole and how some of them damage was in December 2022 , just a week after the council inspection , the last one .

There is nothing to prevent you from obtaining witness statements from third parties who may have experience similar issues before legal proceedings have started. Obviously the witness statement would need to be signed by the third parties in the format required by the court and you could use that as evidence, but even better if they would be willing to go to court as well to assist you.

Couple of other points I've thought about:

1. Have you got photographic measurements of the pothole that are clear and in different angles? I believe the courts have historically rejected claims where the photographic evidence is poor or doesn't quite show the extent of the pothole and how deep or wide it is.

2. How come you were driving on a country road at 2mph? Was that due to the fact you saw the pothole or was it for traffic reasons or some other reason? Also think about where the pothole is in relation to the road e.g. is it in a more dangerous place such as on a bend, in the middle of the road such that it can't be avoided etc.

**1990rider** · 10th August 2023, 16:50:PM

Hi there thanks for the detailed reply yes it is under the highways act I am making the claim. I am arguing essentially that the county council knew the pothole existed and did nothing to fix it.

However

I do have photos of the pothole yes,. The council claim to have measured it's depth as 3 inches. But this would not correspond with the damage caused to my vehicle and that of other witnesses. One witness had his car damaged just two weeks ago, that was after the most recent inspection which declared it to not be dangerous. So they may not have measured the pothole accurately. I may go back and measure myself. The thing is is that in the courts eyes if the council recorded the pothole and earmarked it for eventual repair is that not enough? The road was also inspected more or less in line with requirements (apart from the last one being over a month late).

they will go to court if need be, at this stage all ice asked for is their permission for me to name them and their accounts when I email the council and inform them of my stance.
Essex CC said in response to my claim.

As this defect is not considered to be dangerous, we do not accept that Essex County Council
has been negligent in its duties to maintain the highway, as set out in Section 41 of the
Highways Act 1980.

So is the only thing I need to do, which I have done, is prove it's dangerous?

They have section 58 as a defence though right? I have argued that they had ample time to fix the road and a reasonable road user would not expect to incur substantial damage to their vehicle through a defect in the road which by their own admission, was likely to be hit (61-80%). I was driving slowly as there was an oncoming vehicle. I was going to pull into the side once I had established it was not going to stop.

**R0b** · 10th August 2023, 21:30:PM

Unfortunately none of us are able to predict what a judge might decide as it will depend on what has been said and evidenced on the day of the hearing, but arguably, you could say that just because the council has not classified the pothole as dangerous, doesn't mean to say it is not dangerous, particularly if there have been recent multiple events of car damage reported to the council for the same pothole in which case one might consider the council to re-assess based on the reports by drivers.

In a civil claim you only need to prove your case to the extent that you tip the balance of scales 51% into your favour. If the council is claiming not dangerous and will rely on the s58 defence, it's up to you, by way of evidence and arguments, to tear down that defence to persuade the judge to rule in your favour. Based on what you have described so far, if I were in your shoes and issuing a claim, I would be looking to argue the following points:

1. How many complaints or reports have the council receive in relation to this pothole? If you don't have that information to hand, could you make a freedom of information request for that to be handed over?

2. The council have categorised the pothole as not dangerous, but have they followed their policy on categorisation and if not, highlight those failures which in your case, you would argue should be categorised differently i.e. dangerous.

3. Given that the council have assessed the pothole on several occasions and despite several situations where vehicles have been damaged, they refuse to re-classify the pothole and/or failed take remedial action even if it is a temporary remedy. Has the council explained why, if not use that to argue that they have been negligent and failed to discharge their duty to repair the pothole knowing that several incidents have occurred.

4. If the classification of the pothole is not dangerous and the pothole will be repaired but no time is given, is that reasonable? In your argument you would say it's unreasonable to put no time limit on the pothole repair despite the circumstances of a number of vehicles being damaged as a result. You are right to argue that 18 months is a rather long time to not carry out repairs, again taking into account that there have been several incidents recently.

At the end of the day, councils wouldn't be doing their job if they reject your claims and force you to issue legal proceedings as a good pecentage would not be prepared to take it further than that. Once you get over that hurdle, the worst case scenario is that you may lose and the costs will be limited. Given that cases take 6-12 months or longer from start to finish, you could offset any potential liability by saving a small sum each month to cover those costs.

Have you submitted a letter before action or have you simply threatened legal action?

**1990rider** · 11th August 2023, 06:23:AM

Hi there, thanks for the reply .
I haven't submitted any response to their response to my claim. They say the next step is through the small claims court. I haven't threatened or even mentioned anything yet. Once I get the remaining fois back I will compile a claim letter. If they ignore I will then tell them I will go to court

I will do another foi , asking how many reports about the pothole on kennel lane.

The council will not have undertaken work because it has been deemed non urgent, aka, non dangerous. This is the crux of the case. I submitted an foi asking for the assessment of the pothole back in October 2021, but given that the most recent one in May 2023 was deemed non dangerous etc....I will be arguing that the damage my car experienced does not correspond with a non dangerous pothole, and even though thr video does not show the damage, the front left of the car does almost sink into the hole and there is a large crunch. This would not correspond with the kind of pothole they believe it to be. I will go back and measure it myself if need be.

**1990rider** · 12th August 2023, 05:51:AM

Ok newsflash!
I've just checked the councils pothole portal again. Yesterday I spoke to one witness I will use who had his car damaged. Yesterday he reported the pothole on the defect system. I can see on the council system, though it doesn't specify a date, that in August 2023 the road was inspected, and the latest update now reads

"We've investigated and assessed this issue. We have assigned this to a team to progress the scheduling of works".

So I'm pleased it seems like they've realised that actually, this is a dangerous pothole and they need to repair it. How does this help me though? Because if they repair it I won't be able to measure the original pothole. Will this latest admission that the pothole is dangerous per their most recent inspection essentially destroy their previous ruling when the road was inspected in May after my accident?

Seeking to take county council to court for pothole damage