Pothole Claim against Council

[BinkyB]

Having failed to secure an acceptance of liability from my local council, has anyone been successful with a Small Claims action to recover costs for damage to a car resulting from collision with a pothole. My 'dialogue' with the council has lasted 10 months, and I now seem to have only one course of action to bring this to a satisfactory conclusion .

[Ukmicky]

I believe they are not automatically responsible for your damage simply because there was a pothole. I think it comes down to how well they monitor their roads for such hazards or whether they failed to act within a reasonable time once they’ve become aware of the danger. There are cases which highlight the criteria.

[sandfordboy]

Can you evidence that the Council were "on notice" of the pothole?

[ULA]

You can do a Freedom of Information request to find out if there were "on notice" in respect of the pothole. I have had to do the same with a similar pot-hole situation.

[BinkyB]

Thank you for your guidance replies. I sought and received many documents under the FOI act and it is clear that the council were made formally aware of potholes in this road almost a week before my incident but chose not to react until several more public reports were logged. They are relying on a DMA policy document that gives them 20 days to repair, but makes no demands on how quickly they should respond and inspect or provide warning signs, which is where - in my view - they have failed.to take reasonable steps to keep the highway safe. I am a person of principle, but do not tend to chase lost causes, hence my question on whether anyone has had success through the Small Claims procedure.

[ULA]

I respect you are a person of principle but please weigh up the cost of the fee you will need to pay for making a claim, your time involved in progressing with the claim plus given the backlog as you are unlikely to have a hearing, if it gets to that stage, within at least the next 12 months against the value of the damages you are claiming.

It is highly likely they will try and use the s.58 Highways Act 1980 as their defence.

[dslippy]

One week's notice of the fault is not a lot.

You haven't said yet how big the pothole is.

[R0b]

I agree it depends on the size of the pothole but assuming it is significant enough, then the Court of Appeal case Crawley v Barnsley Metropolitan Borough Council [2017] EWCA Civ 36 might assist: Link here

It's a short decision so worth a full read but a key paragraph to note:

39. The starting point is that this pothole was, as the trial judge found, in fact a Category 1 defect within the meaning of the Code. This was because its presence represented an immediate or imminent hazard. Once recognised as a Category 1 defect on inspection, it needed immediate attention, either by immediate repair or by being rendered safe by the immediate placing of a notice, by fencing or coning, followed by repair as soon as possible. That it required immediate attention was eventually accepted by the council's inspector, Mr Macey, in cross examination.

My assumption is that based on what you described, with the pothole causing damage it was significant enough to warrant an immediate or imminent hazard so this case may be useful to you.

There is also commentary on the local authority's system to respond to notifications i.e. 1 working day but in this case the court determined it should be next day.

[BinkyB]

Thank you again for the responses to my dilemma.

ULA - The council has tried to rely on section 58 of the Highways Act 1980 for their 'special defence' but I believe that they have failed in their duty on at least three of the sections defence points. I am aware of the fee and have plenty of time to pursue, but thank you for your input.

DSLIPPY - The 'pothole' was 300mm wide x 1500mm long x 140mm deep and was subsequently identified by the council as a 'failed utility trench'. One week is ample notice for a crater of this size which should have been inspected much sooner. Had it been, it would been given a category 1 priority and dealt with prior to my incident. The public do not generally file reports on potholes that are not dangerous.

ROB - A big thank you for the link to a precedent which made interesting and reassuring reading. Mine is not a personal injury claim, but in all other ways this could be describing my protracted discussions with the council and gives me comfort and confidence to move forward using the small claims procedure.