Knowing how to claim for pothole damage to your car is becoming increasingly difficult due to Councils moving to a risk-based approach on claims. The underlying reason is because of cutbacks and to save on repairs and claims. This makes it nigh on impossible for motorists to win claims. You now have a 1% chance with Fife Council of winning a pothole claim.
Potholes are becoming the fastest growing concern for motorists. 75% say that they were more concerned about it than they were in 2017. Potholes have affected 9 in 10 of motorists, with nearly a third saying they have changed their route to work. 54% have had to brake or swerve sharply to avoid potholes.
Some potholes are so big they can be seen from space on Google Earth.
WHO PAYS FOR DAMAGE CAUSED BY POTHOLES?
We all do via the Insurance Premium Tax which is levied on car insurance policies, Council Taxes, vehicle excise duty, tax paid on fuel (with 20% VAT on top), car parking permits and other levies.
Councils have a statutory duty to maintain and inspect the roads to a satisfactory standard. Councils collude with claims stoppers to prevent you from upholding a legitimate claim, so proving it is difficult but not impossible.
You will be encouraged to claim on your car insurance policy. Why should you be left out of pocket due to their negligence?
WHAT PROBLEMS DO POTHOLES CAUSE?
Hitting a pothole can cause damage to your vehicles shock absorbers and suspension, with broken springs being the most common damage. Burst tyres and damaged alloys are another hazard which can cause a driver to lose control of their car.
Potholes are also a hazard to cyclists and motorcyclists who risk serious injuries or even death, especially at night.
HOW DO YOU KNOW IF A POTHOLE DAMAGED YOUR CAR?
Steering pulling to the left / right and uneven tyre wear is a sign that the tracking alignment is out and needs resetting by a tyre garage.
Dents on the wheels and bulges on tyre sidewalls are also a sign.
Listen to the suspension. Is it ‘clunky’? Does it thump when you are driving? That could be a sign of a broken spring.
An interesting case 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 position that every Highway Authority and claims handlers will 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. This is known as the Section 58 defence which local authorities try and hide behind.
Whilst this stance may hold water on the face of it, in reality, local authorities have a statutory duty of care 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.
If you hit a pothole and you believe it has damaged your vehicle, you need to report it as soon as possible. You can do this via www.fixmystreet.com or www.fillthathole.org.uk or simply contact the local authority direct by phone or via Twitter.
Do not refer to a pothole claim as an accident – accidents hold nobody liable, whereas an incident / collision does.
Take photos of the pothole to evidence your claim. If it is safe to do so, put your foot by the pothole or in it for scale to measure the size and depth. A bottle of water or a can of Coke would suffice.
Depth of a pothole is crucial – the size of it doesn’t count in Court.
PROVIDE A SKETCH WITH YOUR CLAIM TO PINPOINT THE POTHOLE
You will be asked to help the local authority find the pothole as there are that many on the roads. A simple sketch will suffice.
GET AN ESTIMATE FOR COST OF REPAIRS / PROVIDE A COPY RECEIPT
You are seeking a full refund for the damage caused due to the local authority’s negligence.
Include this in your claim with photos of the damage caused.
SUBMIT AN EIR / FOI REQUEST
Ask for 3 years worth of inspection reports and how many times this pothole has been reported. When was the last repair made? Was it reported before you hit it?
You need to ask the following questions:
Please provide me with the following information for (street / road):
1. Inspection records for the past 3 years.
2. All reports received relating to any road defects in the past 3 years (to include details regarding action taken on each report).
3. Temporary and permanent repair specification and criteria.
4. Copies of the works orders (to identify how the pothole was repaired – temporary / permanent repair).
£890 POTHOLE CLAIM
I disputed a £890 pothole claim with Fife Council which has been reported in the Dunfermline Press. The claims handlers maintained that Fife Council has a reasonable inspection and maintenance system – I didn’t believe it. I sought proof via Freedom of Information requests.
I knew that this pothole was miscategorised as a Cat 2 and was repaired as a Cat 1 (most serious).
Cat 2 and a Cat 1 pothole repairs are set to a specific criteria and this pothole repair didn’t meet any criteria at all.
A Cat 2 pothole 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. They have admitted there was a pothole and they failed to repair it within the statutory timeframe.
I found the pothole 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 supported my Freedom of Information requests and questions asked with my evidence.
Fife Council’s inspector was following a policy that didn’t exist – I proved that in Court. The judiciary affirmed it and I lost the case.
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.
Local authorities have to adhere to a specific criteria for inspections and repairs.
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 individuals who 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.
Statute of limitations is up to 6 years in England and Wales and 5 years in Scotland via the Small Claim Court (Simple Procedure in Scotland).
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 had 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. This is now 1% with Fife Council, which is completely unacceptable.
You can find out more about how to claim for pothole damage on the Which? Guest Conversation where I give some more tips.
Do you know how to claim 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.