Ten Steps To Making A Pothole Claim
If you, your car, motorcycle or bicycle have been damaged by travelling over a pothole, you may be entitled to compensation to cover the cost of your damages.
This ten step guide is based on information provided by local government, experts in highways maintenance, and legal advisors with experience in claims of this nature.
With guidance you can get your claim to the right people, and at the same time, raise awareness of the pothole problem blighting Britain's roads.
Step 1: Gather Evidence
You need to collect evidence of the pothole as soon as you can after hitting it. However, your personal safety should be your number one priority.
So long as it is completely safe and legal to do so, take photographs of the pothole, both close up images and wider angle pictures to show the defects location in relation to the rest of the road. Notice the pothole's position in relation to the flow of traffic, and make a note of how many potholes there are nearby.
If you have a tape measure or ruler to hand, measure the width and depth of the pothole. Alternatively use something, like a pen, to give a sense of scale, then photograph the hole with the item lying beside it, and standing up in it. It will be possible to make an estimate of the hole's measurements based on these photos.
In the heat of the moment it's easy to forget the details you should be recording, and many drivers do not have a pen and paper to hand to write down information with. The http://streetrepairs.co.uk/app will prompt you to record all the necessary information whenever you report a pothole.
Download the Street Repairs app now, and the next time you encounter a problem on Britain's roads, you can upload a report to our database, from your smartphone. Simply take a photo of the pothole, add a description, and our location finder technology will identify whereabouts in the UK you are..
Step 2 Report To The Appropriate Authority
Before you turn your attention to a potential compensation claim, take the time to alert the local authorities of the presence of the pothole. There is a good chance those responsible for that stretch of road are simply unaware of the damage to the road surface. Your prompt action may prevent damage to property, and even physical injury. This can be done quickly and easily using the Street Repairs system.
Step 3 Who To Claim Against
The majority of compensation claims for pothole damage need to be made against the local council, as they are responsible for maintaining 90% of roads in the UK.
If the damaged occurred while travelling on a trunk road, the claim will be against the Highways Agency. Claims against owners of private or unadopted roads tend to be more complex and may require professional advice.
Step 4 How Much To Claim
Ensure you keep a written record of a full breakdown of all costs incurred as a result if the damage caused by the pothole. Be realistic about your claim. Adding on additional costs, such as repair of existing paintwork damage, or extravagant alloy wheels are likely to provoke a negative response. If you have incurred unusually high costs, keep evidence of how this relates to your claim. For example, if you did have expensive alloy wheels damaged by the pothole, take plenty of photographs of the wheels on your car, with the registration plate in full view, as well as closer shots of the damage.
Step 5 Background Research
Before submitting your claim, you need to find out how often the road is inspected and maintained by the council or agency responsible for it.
To do this you will need to submit a request under the Freedom of Information Act, commonly known as an FOI request.
You are legally entitled to access any information held by an agency or a council about inspections and maintenance of a road within their responsibility.
The authority will seek to refuse your claim on the basis that they have carried out regular and satisfactory inspections and maintenance of the road, so it is important you have access to their records.
You can do this by using the Street Repairs Freedom Of Information (FOI)
Submitting a request by email is usually the quickest way to access the information, and with us creates an instant digital record of the date you started the process. The reports are usually free, although some authorities may charge a small administration and / or postage fee.
Shortly after you submit your request, the authority should reply acknowledging they have received it. They have 20 working days to provide you with the requested information. If they do not, send a reminder letter or email, stating that the 20 working days have elapsed. If they still do not provide the requested information you can make a complaint to the Information Commissioner's Office. http://ico.org.uk
Do not inform the authority that you intend to make a claim against them. In law the information could then be considered to be 'disclosable documents' and the council would be within their rights to withhold them.
Ideally you should submit the FOI request before you make a claim.
Step 6 Compare Authorities Records With Section 58 Of The Highways Act
Councils and agencies will seek to defend themselves under section 58 of the Highways Act. If they have taken all the reasonable measures needed to ensure the highway was maintained to a safe standard and potholes are identified and repaired quickly, the damage caused by your incident will be considered as bad luck, and not their responsibility. In short they will not be liable to pay you any compensation.
For this defence to apply, the council or agency must demonstrate they use a reasonable system to regularly inspect and repair roads. If you can prove either their system does not meet the national recommended standards for the maintenance of highways, and/or that system has not been consistently implemented, then you may be able to make a claim.
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, or that their system differs from the recommendations of the national recommended standards for highway maintenance, then you may be able to claim.
You should obtain a copy of the guidelines and code of practice councils must adhere to, and compare this with the information supplied by the authority following your FOI request.
Step 7 Keep Calm And Make A Claim
If your vehicle has been damaged by travelling over a pothole, or worse still you have suffered an injury, it is completely understandable that you may be feeling angry and upset.
Any correspondence between you and the council or agency you are claiming against could be read out in Court, so keep all your communications polite and professional.
To begin your claim, write a detailed letter to the authority, with the relevant facts including:
- what happened
- how familiar you are with the road
- a map of the area with a 'X' marking the position of the pothole
- the costs you have incurred as a result of the damage
You do not need to mention any previous FOI requests, or your findings regarding the authority's compliance with the recommended national guidelines and standards for road maintenance.
Initially you are likely to receive an acknowledgement letter, which may request additional information, and ask you to mark the location on a more detailed map provided.
Step 8 Refusal
Prepare yourself for the likelihood that your claim will be refused.
The authority may reply, stating they employ rigorous inspection methods and repairs in accordance with the national recommended guidelines. This is their defence under section 58 of the Highways Act 1980.
If you can anticipate this letter before it arrives, it will be much easier to stay calm when it does. Do not call the telephone number on the letterhead. Keep all communication in written format.
This can be a standard refusal, which the authority makes because the majority of people will then drop their claim.
However, if after comparing what the authority should legally be doing to maintain the roads, and what the FOI request reveals is actually happening you have identified problem areas, the you may challenge this claim refusal.
Step 9 Challenging Their Defence
Armed with a highlighter pen, a copy of the national guidelines and the information provided as a result of your FOI request, it's time to tackle their defence, by asking these key questions:
- Based on the road's usage and location, is its hierarchy classification appropriate? The table and descriptions given in Section 9 of the guidelines will help you with this
- Was the road's condition inspected at the recommended frequency, as given in the guidelines, according to its current classification and / or what you believe its classification should have been?
- - If safety inspections were carried out while travelling in a vehicle, was it travelling at the appropriate speed? Previous Court rulings indicate that speeds in excess of 25mph are too fast for an adequate inspection
- If safety inspections were carried out while travelling in a vehicle, was the inspector also driving, or accompanied by a separate driver. Previous cases indicate that an inspector cannot both drive safely, and adequately look for defects.
- Did the authority already know about the pothole before your incident, either because someone else reported it or by finding it during an inspection? If so, did they complete repairs within the suggested time frame?
- Look for safety inspection reports carried out shortly after your incident. Did they identify the pothole then, and if so, what information is noted about it?
- Did the authority identify the pothole, but when following their own procedures decide it was not big or deep enough to fill? Does the authorities criteria for repair meet the national guidelines? Generally Courts agree that a pothole measuring less than 40mm deep is not dangerous.
If you believe you have identified discrepancies between how the authority should have maintained the road, and what actually happened, then you are in a good position to challenge their defence.
Write back to the authority, or claims handler if you are using one, listing the discrepancies you have found. Include any relevant evidence such as paperwork and / or photographs. In your letter, state that you do not believe they have satisfied Section 58. At this stage there is no need to make threats about legal action. Remember that if the claim does go to Court, anything you have written down, or said may be submitted as evidence.
It is important that you remain realistic. They may pay your claim if they believe you have a real chance of a Court finding in your favour. However, it is also possible that any discrepancy identified by you is simply the result of mis-interpreted information, and that the authority will be happy to defend their position in Court.
Step 10 Negotiation Or Small Claims
The authority may make an offer to pay compensation that is less than the amount you claimed for. Before you decide whether to accept or reject this offer, consider the time and costs involved in taking a claim to court. If you would settle for a little more than the amount offered, you can go back with a counter-offer.
If the authority decides against your claim, or you are not happy with the compensation offered to you, you have the option of making a Money Claim online. This is a simple, cost effective way of having your case reviewed independently
Always remember that there are no guarantees of winning, and pursuing the case may cost you money that you are not able to recover later.