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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I damaged my car in a pothole which caused £274 of damage I

Resolved Question:

I damaged my car in a pothole which caused £274 of damage
I made a claim against the council
They said they had inspected this road 2 months previously and there was no pothole
I said the pothole had been there since February 2013 and I can obtain independent witness statements to support this claim
The pothole was even mentioned in an email sent round in the spring of last year, by the local neighbourhood watch
What can I do?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Thanks. The response you have received is the councils "standard" s58 Road Traffic Act defence. It should not in itself deter you. The RTA makes councils responsible for maintaining roads and liable for damage for failure to do so but s58 provides:

Joshua :

A highway authority won’t be liable for damage caused by a breach of its duty to maintain and repair the road if it can show that it “had taken such care as in all the circumstances was reasonably required” to make sure that “the part of the highway to which the action relates was not dangerous for traffic”.

Joshua :

If you wish to pursue the matter, the first thing to say is if you have legal assistance with your insurance, you may be able to ask them to assist you with this matter and it would not necessarily impact upon your no claims bonus - you may wish to check this point with them. If you make a claim against your insurance for the damage to your car then of course it would impact upon your no claims bonus.

Joshua :

Ideally you would have taken some photographs of the pothole before it is repaired and noted its exact location and road name/number. Your next step is to submit a Freedom of Information Act request to the relevant council or highways agency to find out how often the road was inspected and maintained and ask for a copy of their policy for roads inspection and maintenance. The council is required to provide you with this information and the dates of the last inspection.

Joshua :

May I ask if you have requested a copy of the inspection schedule to date?

Customer:

Yes, I took photos and submitted them with my original claim. I also obtained details of the council's inspection report under the FOI act which I received today. Basically the report states that the road was inspected some time between 1st September and the date of the incident. No reference is made to the hole in question

Joshua :

Thanks. As above section 58 of the highways act 1980 provides the council with a statutory defence to defend claims for pothole damage on the basis that they had at the time of your accident taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly. All councils should have a reasonable system in place whereby they regularly inspect roads and repair them if necessary. Provided they have followed their system as they should, they may be able to reject your claim. However, if you can prove that they haven't from you FOIA request above, or that their system differs from the recommendations of the national recommended standards for highway maintenance, or that they have inspected but failed to identify the pothole in question then you may have a claim. You can often find that the council is not as assiduous in its duties in maintaining local roads as it should be and it is here where you can pursue a claim.

Joshua :

From what you say you have evidence that the pothole was in place before their inspection they carried out?

Joshua :

If that is correct and you can prove this on the balance od probability with independent witness statements and the like then this is a bais on which to pursue a claim against the council in the small claims court.

Joshua :

You can read the code of practice the council should follow using the link below:


http://www.ukroadsliaisongroup.org/en/UKRLG-and-boards/uk-roads-board/wellmaintained-highways.cfm

Joshua :

If the council has not met its obligations under the above code then although the council will typically reject your claim still, particularity in these cash strapped times you should consider whether to pursue the matter in court. You will need to be able to specifically highlight both where your council's maintenance programme mirrors the code and where it differs - and wehre they failed to spot a pothole during their inspection. Entering into negotiations initially can sometimes be productive but this is comparatively rare as above and typically one needs to threaten or actually issue proceedings to obtain recovery

Joshua :

If you decide to issue proceedings on the basis of the evidence you have the simplest way to do so is by using www.moneyclaim.gov.uk

Customer:

As the claim is small I would imagine seeking legal representation and action would not be worthwhile or that anyone would be interested. Other than the Small Claims Court are there any other options?

Joshua :

legal representation would not be encouraged in the Small Claims Court as you cannot typically recover legal fees that you pay for the representation and given the size of the claim, as you say, legal fees would more than eclipse any benefit you were derived from the claim. the Small Claims Court is designed to be used by members of the public without the need for legal representation

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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