Council Section 58 Highways Defence for Pot Hole

[henrygregory]

Hi, I had put in a claim for pot hole damage to my wheel almost a year ago with my local council. In true (and very late) fashion, they have returned with Section 58 of the Highways Act as their defence.

I ran a FOI request for the highway in question. I have noticed that the response to this request highlights that the council don't appear to have found any actionable defects for the whole of 2013.
My incident occurred in early 2014, the records show that the highway in question was surveyed:

2012: a total of three times
2013: a total of two times
2014: a total of one times

I have never made a claim before, and I am very new to this process. Does anyone have any tips on how I can successfully prove the are in the wrong? As far as I can see, they have performed surveys however, they have neglected to do anything about the dangerous pot holes. What amazes me also, is the fact that the pot holes still remain, completely untreated even after I have put in a claim.

According to their response letter (to my claim), there have been three insurance claims for this piece of highway. The notes say: 'pothole has been marked but not repaired 13/12/2013'.
If the pot hole I hit was marked in December 13, why is it still not repaired now?!!?

[seduraed]

Re: Council Section 58 Highways Defence for Pot Hole

If the pot hole I hit was marked in December 13, why is it still not repaired now?!!?

MONEY! The council probabally broke . I wont go intoa rant about local government funding . Suffice to say it needs reform .

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

Whilst the council may be relying on Section 58 of the 1980 Highways Act. they do have to prove that they 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.
Did they offer any proof as set out in part (2) of the section?
If you were to sue them, their defence needs proving, you would not have to prove their negligence.

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

Whilst the council may be relying on Section 58 of the 1980 Highways Act. they do have to prove that they 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.
Did they offer any proof as set out in part (2) of the section?
If you were to sue them, their defence needs proving, you would not have to prove their negligence.

Here is some of what they put in their response...

We enclose by way of disclosure, the following documentation which was considered in formualting our liability decision:

1. Records of inspection for the relevant stretch of highway.
2. Maintenance records including records of independent contractors working in the relevant area.
3. records of complains about the state of the highway.
4. records of other accidents which have occurred on the relevant stretch of highway.

... whilst we are of course sorry to learn of your accident, we must advise you that we are unable to consider your claim and accordingly deny liability.

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

I wonder if the fact that the pothole's existence had been noted in Dec. 2013, but it had not been repaired when you "found" it in 2014, is in fact an admission that the council had NOT taken reasonable care, as that part of the highway was demonstrably dangerous to traffic.

I would be looking at trawling through their submissions with the wording of the act in mind.

I suppose it was an alloy wheel that now needs replacing. Is it one that can be replaced singly, or do you need to buy a set?

If you intend to take your complaint further my advice is to get out there, photograph the pothole with a ruler in view and take measurements before it is filled

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

I wonder if the fact that the pothole's existence had been noted in Dec. 2013, but it had not been repaired when you "found" it in 2014, is in fact an admission that the council had NOT taken reasonable care, as that part of the highway was demonstrably dangerous to traffic.

I would be looking at trawling through their submissions with the wording of the act in mind.

I suppose it was an alloy wheel that now needs replacing. Is it one that can be replaced singly, or do you need to buy a set?

Possibly, thanks so much for your comments and suggestions.

The incident occurred towards the end of March, so a little in to 2014. The alloy wheel was indeed damaged, however in my claim I had focussed on the tyre and had said I would be back in touch if I found the alloy wheel was going to cost lots. So far, it has continued to hold air in the new tyre, and passed its mot, so I have not bothered though the garage did say the allow was buckled.
I didn't want to be too greedy, though in hindsight, maybe I should have claimed for everything that was damaged.

Before I trawl their submissions, what do you make of this, which was also in their incident response letter:

The last inspection of the strip of highway in question, prior to your accident occurring was on the 22nd of January 2014 and at the time, no defect which was considered to be dangerous was observed during the course of that inspection.

They deem the potholes not to be dangerous, so they more than likely did come across the pot holes but did not consider it serious.
I should also point out that I actually hit two in the same incident, the second causing the final damage which blew my tyre. I mentioned both in my claim and included a good number of images and maps so they knew exactly where I was referring to.

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

The council will be claiming that at their last inspection, although pot holes were observed, they were not deemed to be dangerous and they must have deteriorated between the inspection and your incident.
Are they claiming, despite your incident, that the holes are still not dangerous?
It would be to your advantage to find other third party witnesses to the fact the pothole had not actually worsened but had been always been bad.
Did they actually send a copy of the inspection report of January?
Who decided the potholes were not dangerous... qualified surveyor or caretaker? Was the inspection report signed

RE the wheel: how out of true is it? have you been able to run it on the front with no problems?

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

Thanks again. No copies of inspection reports from the council. I do have a few friends who use the road all of the time and can confirm it has been the same for a while. It has not really worsened at all over the winter, but we still have to swerve around both pot holes as they are dangerously large.

Their correspondence does mention who deemed the road safe, or rather who undertook the survey, but interestingly, the names are all blanked out on the FOI I got back.

Regards the wheel, it seems fine so far. The steering wheel has wobbled ever since, but the tyre has kept its air inside and has not gone down. There does not appear to be un-even wear on tyre so it seems ok, though I am no car expert.

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

As your steering wheel wobbles move damaged wheel to rear to check if that stops the wobble.
If the wobble continues you may have damaged a tie rod, or just have worn components in the steering mechanism.

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

As your steering wheel wobbles move damaged wheel to rear to check if that stops the wobble.
If the wobble continues you may have damaged a tie rod, or just have worn components in the steering mechanism.

Thank you, I will try this and see if there is any change.
Meanwhile, no the council have not given me copies of the January inspection report. Should I request a copy? They said in their letter I am able to contact them regarding the matter, but it must be in writing.

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

Why not?
You need to push as far as possible to find out if they have a genuine defence to the charge of neglect before you decide if it's worth going to court.

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

Ok, I have gone back through what they sent me and there is a very grainy set of pages which do include the inspection from 22 january 14, but the date is barely readable which is why I missed these the first time.

Attached to the reports are pictures clearly showing both of the pot holes in question.
The reports state:
Descrption:
Ra3=3x1. centre pothole 1.5x0.3 x 80mm
Defect Type: HW:Carriageway surface defect.
Priority: Local Road P4 (the accompanying explanation says P4 categories are scheduled to be undertaken (repaired) during 'next programmed works'. This means it is repaired alongside other repairs along the same road whenever they are carried out. In other words, not a high priority). P1 is dangerous, P4 is lowest priority.
Defect Status: Action Required.

Description:
Ra3=3x1. Edge pothole 1.4 x 0.3 x 70mm.
Defect Type: HW:Carriageway surface defect.
Priority: Local Road P4
Defect Status: Action Required.

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

Here are scans of the two accompanying photos of the pot holes from their report:

[des8]

Re: Council Section 58 Highways Defence for Pot Hole

Don't worry if I fall off my perch , others here will assist you

[henrygregory]

Re: Council Section 58 Highways Defence for Pot Hole

des, see above, I found something of interest!!!