What to do if the council won’t fix the potholes on your road

Authored by DAS Law Associate Corey Evans

Potholes have become the scourge of drivers up and down the country and are an ever-present fixture of roads in the UK. They can be a dangerous hazard and potentially cause serious damage to vehicles.

As a result of this scourge, many of us feel compelled to act, with famous faces, most notably, Arnold Schwarzenegger going as far as taking it upon himself to fill one in personally. But what can road users do about potholes, and how can they make a claim if they have suffered damages?

Corey Evans, Associate at DAS Law clarifies the legal position around damage caused by potholes and the possible repercussions for those who seek to resolve them themselves.

What is the legal definition of a pothole?

There is no nationally accepted definition of what exactly constitutes a pothole. However, a pothole can be considered a depression or hollow in a road surface caused by wear or subsidence. As a general rule, a pothole will normally only be repaired if the depth is greater than 40mm, but this can vary between local authorities.

What is the procedure for reporting a pothole?

This depends on the type of road and which country of the UK you are in as there are different agencies responsible. All major A-roads and motorways will need to be reported to the following:

• England – contact Highways England.
• Scotland – contact Traffic Scotland.
• Wales – contact Traffic Wales.
• Northern Ireland – contact the Department for Infrastructure

For any other type of road you will need to contact the relevant local authority responsible for that section of the road. You can look up the relevant local authority on the government website under ‘find your local council’.

Am I legally allowed to fill in a pothole myself?

It is not advisable to fill in a pothole yourself. We would recommend anyone considering repairing a pothole themselves to instead report the matter to the relevant authority as soon as possible. This will allow the authority to conduct their own assessment of the matter and if necessary repair the road to the correct standards. This could potentially avoid any personal liability both criminally and civilly that may occur when conducting a repair attempt yourself.

The local authority will have their own procedures and standards controlling pothole repair. Should a repair conducted by a member of the public not conform with these procedures or standards, and anyone sustains an injury or damage during the repair process or afterwards, then the injured party may be able to hold you personally responsible as you have “assumed responsibility” for the repair.

The local authority may be able to hold you liable under the law of nuisance for any perceived damage caused in conducting that repair. For example, the local authority may incur costs to remove material from the pothole in order to repair the pothole in line with their own procedures and standards. In some instances you may be committing a criminal offence as this may amount to criminal damage depending on the scale of the alleged damage caused.

If damage or injury has been sustained due to a pothole, can I take legal action against the relevant authority for the cost of repairs?

Whether you can take legal action against the authority responsible for the maintenance of the road for the cost of repairs will depend on whether the authority can be proven to have been negligent.

Under Section 58 of the Highways Act 1980, the authorities have a defence for non-repair of the highway where they are “not aware”. However, this does not fully exempt the authority as they also have a responsibility to inspect the roads they are responsible for.

In order to prove the authority is aware, you will need to prove the matter has been previously reported and that sufficient time has passed whereby the authority could be reasonably expected to have had sufficient opportunity to repair the defect. Alternatively, if a repair is not suitable the authority could be expected to place warnings or other temporary measures in place on that part of the highway to stop damage from occurring.

You may need to prove that the authority has failed in their duty to regularly inspect and maintain the highway and so has been negligent. This point is more difficult to prove as authorities will have inspection and maintenance requirements in place which set out the road inspection requirements and timescales. The frequency a road needs to be inspected varies and is dependent upon factors such as the type of road, volume of traffic and state of repair.

Essentially, authorities maintain processes which will confirm how often roads should be inspected and how quickly repairs should take place. Records should be maintained by the authorities showing the inspection and maintenance records for roads they are responsible for. A Freedom of Information Request (known as an FOI) can be made to the authority requesting these records. If it can be proven the authority has failed to inspect the road in accordance with their own policy, then it may be easier to bring a claim against them for any damages or injuries sustained.

What is the procedure for making a claim?

If you want to make a claim from the authority you will need evidence to support your claim. If you have been unfortunate enough to sustain damage or injuries due to a pothole, it is advisable to obtain the following evidence:

• Date and time of the incident.
• Location, as accurately as possible.
• Photograph and demonstrate scale of the pothole (if safe to do so).
• Alternatively, a sketch may help to illustrate where the pothole was if it is unsafe to return to the location.
• Any CCTV or dashcam footage.
• Any witnesses or other road users involved in the incident.
• Keep any photographs of damage/injuries caused along with any invoices you may incur for repairs and any other out of pocket expenses.

If your vehicle has sustained damage, it is also advisable to obtain at least 2-3 physical quotes for the damage caused to prove the quotes you have received are reasonable should this later be a disputed fact.

If you have been unfortunate enough to be injured as a result of an incident with a pothole, as a pedestrian or pedal cyclist for example, we would recommend seeking independent legal advice from a solicitor or legal expenses provider. The supporting evidence you have gathered above will assist your representative in pursuing a claim for personal injury.

If you are pursuing an authority for damage only we recommend that once you have collected all the supporting evidence, you will then need to contact the authority responsible for the road and include all evidence in support of your claim.  Each authority will have their own methods of preferred contact and can be located on their representative webpages.

If the authority rejects your claim, then you will have the option to appeal this. The authority should explain how to appeal their decision. If a claim for damage is unsuccessful on the grounds that the relevant authority cannot be proven to have been negligent, then depending on the insurance status of your vehicle you may be able to make a claim on your insurance policy. Ensure you review your documents and follow your insurers process to check your cover and make a claim.

Further information on legal topics can be found on DAS Householdlaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.

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