Pothole payout delay

Pothole payout delay

I have recently submitted a claim to Dumfries and Galloway Council for £50 to replace a headlamp that was jolted from its mount when I hit a pothole. The council’s reply states that my claim has now been passed to their insurance handlers who will contact me in due course.

Is this just delaying tactics, or do I simply have to accept that their insurers will contact me ‘in due course’?

Andy Armstrong

As far as the law on potholes is concerned, the council is not strictly liable for damage to your bicycle and you do not have an automatic right to compensation. The Highways Act 1980 imposes a duty upon the highway authority responsible for the road to maintain and repair it. Assuming that the council is the relevant highway authority for the road in question, it is only if the council can be shown to be in breach of its statutory duty to maintain the highway that it would be obliged to compensate you for any harm or expense caused to you by the pothole.

The Highways Act requires the relevant highway authority to maintain and repair the highway. The courts have subsequently considered the nature and extent of this duty on many occasions. They have made it clear that a highway authority cannot be expected to maintain the roads in a perfect state of repair at all times, and that the law must not impose unreasonably high standards upon them.

The key issue is whether the defect amounted to a danger to road users. A degree of imperfection is tolerated. The courts have not specified the size or depth, but potholes which are less than an inch deep would not normally be considered a danger.

You must identify the precise defect in the road that caused your accident. (Take photos and measurements!) The recent case of Barker v Lancashire County Council made it clear that it is not enough to point out that a stretch of the highway is generally in poor repair. You must pinpoint the defect and it must be established that that defect was a danger to road users.

Even then, it is still possible for the council to escape responsibility for the claim. Section 58(1) of the Highways Act 1980 provides the council with a statutory defence if it can show that it had ‘taken such care as in all the circumstances was reasonably required to ensure that the part of the highway to which the claim relates was not dangerous for traffic’. If the council can produce evidence to show that it was inspecting the road at regular intervals and that there were no defects present at this location on the last inspection, then it can potentially defend the claim.

Challenging such a defence can be difficult. Consider if there is any way of showing that the defect was actually present at the time of the last inspection (for example, by asking local residents how long the pothole had existed). Alternatively, you should consider if the inspections were carried out to a satisfactory standard.

Whilst your claim is against the council, it is its insurers who would meet the claim if the council is legally liable to compensate you. Once they have investigated the claim, they should respond to confirm if they accept responsibility for the accident. If they deny liability, they should give reasons and they should provide all relevant documentation.

If the insurers or the council do not accept your case or fail to respond in a timely manner, you would have to issue court proceedings against the council – usually in a Small Claims Court.

Finally, don’t forget that you can use Cycling UK's FillThatHole app to collect evidence that may be useful not just for your claim but for those of any subsequent cyclists. See www.fillthathole.org.uk.

Bhavika Joshi, for Paul Kitson

 

This was first published in the October / November 2014 edition of Cycle magazine.

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