Opinion

Highways and Potholes - a guide to the legal rights

17th April 2017

Highways and Potholes - a guide to the legal rights

The law is essentially very straightforward in matters relating to a Local Authority's duty to maintain highways via the highways agency, whether it is a main commuter route or country lanes. 

There are three main areas of law to be considered are:

  • The Highways Act 1980
  • Nuisance
  • Negligence

The Highways Act 1980

Under Section 41 of the Highways Act 1980 the Highways Authority has a duty to maintain the highway. In considering whether the Highways Authority has breached its duty under Section 41, the courts will consider:

  • the character of the Highway, and the traffic which would reasonably be expected to use it
  • the standard of maintenance appropriate for a highway, taking into consideration the type of traffic which might use it
  • the state of repair in which a reasonable person would expect to find the highway

Whether the highway authority knew or could reasonably have known that the condition of the part of the highway was dangerous

To succeed in a claim for damages for either repairs costs or personal injury, a person must prove:

  • that the highway was in such a condition that it was dangerous to traffic or pedestrians
  • that the dangerous condition was created by the failure to maintain the highway
  • the injury or damage resulted from such a failure

Whether a pothole is dangerous is open to judicial interpretation and will be fact specific.   The court will consider the size of the defect and where it was located.  A small pothole on a bend or on a busy traffic route would potentially be more dangerous than a pothole on a country lane.

If the Claimant is able to prove that the pothole was dangerous, the burden then falls on the Defendant to prove that they have a Defence under Section 58 Highways Act 1980. 

If the Local Authority can prove that they had a reasonable system of inspection and maintenance in accordance with their policy, they will establish a Defence and any claim for property damage or personal injury will fail.   The policy should be based on the Code of Practice for Highway Maintenance Management. The frequency of inspections will ultimately depend on the particular traffic route.  Routes used more frequently will require more regular inspection.

If a local authority produces inspection and maintenance records as part of their defence, the burden will then fall on the Claimant to prove that the inspections were not carried out correctly.  Usually this will be in the form of witness statements to prove that the defect was in existence at the time of the last inspection and was not identified.

The manner of inspection is also relevant.  The Highways Authority will most likely argue that their manner of inspection is reasonable and adequate in the circumstances.  Questions should be asked - Is it driven?  Is it walked?  If driven, is the driver expected to note potholes as he/she drives, or is there a second inspector who notes the potholes as they drive along? 

Nuisance

The law of nuisance is found in common law (i.e. not set down by statute). 

A defect may constitute a nuisance upon the highway if it made the highway dangerous and/or less convenient for public passage.  A single event is actionable and damages (compensation) may be recovered for personal injury, damage to property and economic loss.

The Courts will treat nuisance as a type of negligence action.

Negligence

Common law negligence is an old established principle.

An objective standard is applied, that of the "reasonable man"; i.e. how would the "reasonable man" have behaved in circumstances in which the Defendant found himself?

For a claim in negligence to succeed a Claimant must prove:

  • that the Defendant owed them a duty of care
  • that there was a breach of that duty
  • that the breach of duty caused their injury or damage
  • the harm must be reasonably foreseeable
  • it is fair and just to impose liability

Summary

Claims for damage caused by potholes are not straightforward and can be difficult to win, particularly if the Local Authority have an adequate inspection and maintenance policy.  The burden is very much on the person making the claim to prove their case.  Until such a time as the inspection and maintenance records are requested from the Local Authority, it will be difficult to determine whether a claim for compensation is likely to be successful.  To that end, a solicitor should be instructed to request the relevant documents.

Practical steps to take

Evidence  - photographs ideally taken with a ruler showing the size  and nature of the pothole are absolutely essential.  It is important to measure the width and depth of the pothole.    Also make sure that the general area around the pothole is visible in a photograph so those who view the photograph can gain perspective of whether the pothole was in a dangerous position. Ideally any photographs should be date stamped.

Report it  - most postholes occur on roads or pavements which are generally the responsibility of the Local Authority.  A failure by the Local Authority to repair the defect promptly may help your case.

Contact a solicitor  or your insurance company -  if you are injured a solicitor can often pursue your case on a no win no fee basis.   If your claim is unsuccessful you will not have to pay your solicitor’s legal costs.  If your vehicle or bike is damaged by a pothole you should contact your insurance company who may be able to assist in making a claim for repairs from the Local Authority.

 

 

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