A case back in May 2017 in the Isle of Man shone a spotlight on local authorities only being liable if a pothole is reported but not fixed.
This case was aired on Manx Radio where someone tried to claim for pothole damage that wrote off their car (it must have been some pothole!)
The default (and lazy) position that every Highway Authority and claims handlers will try and take is that they can only be held liable for potholes that have been reported and cannot be held responsible for every pothole on the roads. They won in this instance.
Whilst this stance may hold water on the face of it, in reality, local authorities have a statutory duty to maintain the roads and inspect them regularly. When was that road last inspected?
Claims handlers work in cahoots with local authorities to reject legitimate pothole claims. That is their sole purpose – they are not independent arbitrators. They work from scripts and default answers to reject claims and hope that you give up on the first attempt. Most people unfortunately do, but once in a while someone like me comes along and tackles them head on.
DEFAULT RESPONSES USED TO DECLINE POTHOLE CLAIMS
Claims handlers use the following responses to decline pothole claims.
- No reports received about the defect before the incident.
- There was no defect outwith criteria at the location on the inspection before the incident.
- A repair was carried out once the defect was reported but unfortunately this was after the incident.
This is the first obstacle you will be faced with. Claims handlers use these responses knowing that the majority of claimants will simply give up.
£1100 POTHOLE CLAIM
I am fighting a £1100 pothole claim with Fife Council which has been reported in the Dunfermline Press. The claims handlers say that Fife Council has a reasonable inspection and maintenance system – I don’t believe it. Let’s see the proof via a Freedom of Information request.
I know that this pothole has been miscategorised as a Cat 2 and was repaired as a Cat 1 (most serious). I know the criteria for a Cat 2 and a Cat 1 repair and it doesn’t meet any criteria at all.
A Cat 2 is significant and indicates that vehicle damage could occur.
The council is legally responsible for keeping the road network maintained, and they are paid by local taxpayers to do so.
In this case (and most of the time) they have clearly failed in their duty, as they have admitted there was a pothole and that they failed to repair it within the statutory timeframe.
I found it from space on Google Earth and on Google Street Maps, yet Fife Council needed my help to find it on a map despite repairing it days later!
Google Street Maps has a date stamp, so it’s clear to me that this pothole has been a problem hotspot for years. That in itself will support my Freedom of Information request and the questions I have asked.
Every local authority has a statutory responsibility to inspect the roads on a set timescale and ensure that the roads are fit for purpose.
If, after a pothole has been reported and it has been remedied within days, it can clearly be argued that the pothole was dangerous and the road was not fit for purpose at the time it was reported and the damage caused.
The authority has demonstrated liability because they have taken the time and trouble to repair it straight away to prevent any further claims or injuries. If they were not liable, why would they bother dealing with it?
RETROSPECTIVE POTHOLE CLAIMS
I am aware of instances whereby individuals have lodged claims for pothole damage to their cars based on failed MOT reports for broken springs that have cost over £200 to replace. They have simply picked out a pothole, reported it and retrospectively lodged a claim and it’s easy to do (although I could not condone it myself).
You can reopen a pothole claim and appeal it. You have up to 6 years in England and Wales and 5 years in Scotland via the Small Claim Court.
Lodge an appeal with the Council and fire in a Freedom of Information request asking the right questions to blow their case apart.
SMALL CLAIMS COURT
The Small Claims Court is always a last resort, but don’t be afraid to use it. I took Honda to Court for a rejected warranty claim and they settled it within 1 hour of receiving the Court papers.
Pothole claims are one of my specialities. You have a 29% chance of succeeding with a claim against Edinburgh City Council, yet I won mine within 4 weeks. You have a 10% chance with Fife Council, which was featured in the Dunfermline Press when I fired in a Freedom of Information request asking for the statistics.
Do you know how to claim damage for pothole damage to your car? Have you been able to successfully win a claim for pothole damage? You need to take a leaf out of my book and hold the local authorities to account.