Pot hole damage - claiming compensation

[Gaz]

Hello everyone

 

I hit a pot hole a couple of months ago which caused irreparable damage to my NSF tyre and damage to the alloy.  The pot hole was of a size that I couldn't report it online, but needed to call our local Highways agency.

 

I submitted a claim for the damage, and have received a letter from Highways.  The main content of which is:

 

'Thank you for your completed claim form and supporting documentation. We have now had the opportunity to review the information provided and would advise as follows;

Section 41 of the Highways act 1980 places a statutory duty on Highway Authorities to maintain the highway in a safe condition for its users. We carry out this duty by undertaking routine safety inspections and responding to reports from members of the public.

The routine safety inspections for carriageways are carried out by the area Highway Steward and a driver so that the steward can focus on the carriageway and raise any intervention level defects for repair. These are then passed to the scheduling team to arrange repairs.

The minimum investigatory level for safety defects in the carriageway is 40mm (4cm) in depth and 300mm (30cm) wide in all directions, anything that falls below this will not be considered a safety defect or raised for repair during the routine safety inspection.

Grange Road, Eastbourne is subject to a six-monthly inspection. The pre-incident inspection took place on 21 September 2022. At that time, the defect you alluded to was not noted to be at intervention level.

Since the date of the routine safety inspection, the first report we received of the alleged defect was by yourself on 03 January 2022.

The Highway Steward attended the location on 03 January 2022. At that time, the Highway Steward identified a category 1 defect and repairs were carried out on the same day.

In addition to providing a statutory duty, the Highways Act 1980 permits under Section 58 a defence to any civil action brought against the Authority. Specifically, Section 58 states that where the Highway Authority has taken all reasonable care, in all the circumstances, to ensure that the highway was not dangerous, it will not be considered negligent or in breach of its duties.

In other words, if it is evidenced the highway is regularly inspected and there have been no previous actionable defects found or reported, which have not been responded to, the Authority cannot be held liable.

Taking the above into consideration, prior to your incident East Sussex Highways had taken all reasonable care ensure the highway was safe for users.

Unfortunately, based on the information provided, we will not be able to offer any compensation for your damages as have requested.

We understand that this was not the response you were hoping for but hope that the above explains the reason for this.'

 

At the moment, I'm not inclined to let it lie.  I still feel that they failed in their duty to 'maintain the highway in a safe condition', irrespective of any inspection schedule.  It wasn't 'safe' and that's why my car got damaged.  Grange Road is a mess and has been for years.  Looking at it every six months is simply lip service to a more serious issue.

 

I'm starting to put together my response, but I wonder if anyone's been in the same boat as I am now, has turned an initial rejection into a successful claim, and could give me any pointers?

 

Or should I just give up and notch it up to experience?

 

I'm in unfamiliar territory and don't know if I'm just on a hiding to nothing.

 

Ta

 

Gaz

 

[EnterName]

Hi Gaz.

It's not happened to me, but I do know someone at work who's successfully appealed to the council and got money back for repair costs after a pot-hole damage.

Taking pictures of the damage, the pot-hole, noting the date of the incident and knowing exactly which council is responsible for the repair all help.

Also get written quotes for repair/replacement costs to sort out the damage. Generally you get fobbed off at first, but persistence pays off.

I don't think the council can rely on the defence that they respond when pot-holes are reported, they are supposed to inspect their roads and discover pot-holes themselves.

Make sure you also reported the pot hole here:  https://www.gov.uk/report-pothole

 

Basically, if you can produce reasonable evidence that their pot hole damaged your car, you have a good chance of getting some compensation for repair costs.

 

[Sad555]

Try no win no fee solicitors,that could force the council to pay up quicker and save them thousands

[Gaz]

5 hours ago, EnterName said:

Taking pictures of the damage, the pot-hole, noting the date of the incident and knowing exactly which council is responsible for the repair all help.

 

Basically, if you can produce reasonable evidence that their pot hole damaged your car, you have a good chance of getting some compensation for repair costs.

 

Ooh, I got lots of photos.  Starting from when my TPMS went off, right up to the size of bits of debris (from the hole) they left in the road after squirting some black stuff into the hole 🙄

 

I should've said, there's a couple of posts (and photos) from me in the 'What annoyed you today' thread, starting 02 January 2023, which is around page 155 for me.

 

I've emailed them back saying I don't accept their rejecting my claim.  It's their third sentence which sums it up for me; 'Section 41 of the Highways act 1980 places a statutory duty on Highway Authorities to maintain the highway in a safe condition for its users'.  If the highway was safe and not dangerous, how come my car was damaged by it!

 

I'll let you know how I get on.

 

Gaz

 

Edited 20 April, 2023 by Gaz
errant 's' removed

[EnterName]

1 minute ago, Gaz said:

 

Ooh, I got lots of photos.  Starting from when my TPMS went off, right up to the size of bits of debris (from the hole) they left in the road after squirting some black stuff into the hole 🙄

 

I should've said, there's a couple of posts (and photos) from me in the 'What annoyed you today' thread, starting 02 January 2023, which is around page 155 for me.

 

I've emailed them back saying I don't accept their rejecting my claim.  It's their third sentence which sums it up for me; 'Section 41 of the Highways act 1980 places a statutory duty on Highway Authorities to maintain the highway in a safe condition for its users'.  If the highway was safe and not dangerous, how come my cars was damaged by it!

 

I'll let you know how I get on.

 

Gaz

 

Do you have legal cover on your insurance?

If so, it might be worth talking to them to get some advice on how to deal with the council.

Good luck! 🤞

[Rgsmg53]

My neighbour successfully got compensation from our local council for a broken spring. The key was him explaining that pothole had been marked by the council with yellow spray paint.

[KenONeill]

12 minutes ago, Rgsmg53 said:

My neighbour successfully got compensation from our local council for a broken spring. The key was him explaining that pothole had been marked by the council with yellow spray paint.

Cheers; that's legal proof that they knew of the hole and hadn't filled it.

[skomaz]

Hi Gaz.  I deal with the Highesys Act on a semi regular basis as part of my job and thier response is pretty much bang on.  They can only be held responsible and liable for damage if the pothole was reported as a safety related one prior to you hitting it and outside of a reasonable timeframe for them to have repaired it after it was reported (usually a few hours and not more than 24hrs(.

 

Basically they can't be held responsible for something they don't know about.

 

You can carry on trying but unless you have evidence of knowledge and failure to repair within the appropriate timeframe lon the council's part your on a hiding to nothing unless they offer a goodwill payment which, given council finances these days they won't.

[J.R.]

1 hour ago, KenONeill said:

Cheers; that's legal proof that they knew of the hole and hadn't filled it.

Or someone wise enough to carry a marker spray with their spare wheel!

 

I am going to do so from now on!!!

 

I bet someone else had reported it but they are not going to admit to it are they!

 

Was it a rubber band tyre on a 19" rim?

Edited 20 April, 2023 by J.R.

[skomaz]

17 minutes ago, J.R. said:

 

I bet someone else had reported it but they are not going to admit to it are they!

 

 

No they won't but in these online days you can sometimes check if its already been reported by checking the online reporting mapping.  In this case its too late to do that though. 

[Gaz]

16 hours ago, skomaz said:

Basically they can't be held responsible for something they don't know about.

 

Cheers Skomaz, muchas gracias 👍

 

According to their letter, they did know about it: 'The pre-incident inspection took place on 21 September 2022. At that time, the defect you alluded to was not noted to be at intervention level' but they may not have been aware of an escalation level, so perhaps lacked any monitoring mechanisms to enhance inspection, should adverse weather (water and freezing ground temperatures) have an adverse effect.

 

Gaz

 

Edited 21 April, 2023 by Gaz

[skomaz]

25 minutes ago, Gaz said:

 

Cheers Skomaz, muchas gracias 👍

 

According to their letter, they did know about it: 'The pre-incident inspection took place on 21 September 2022. At that time, the defect you alluded to was not noted to be at intervention level' but they may not have been aware of an escalation level, so perhaps lacked any monitoring mechanisms to enhance inspection, should adverse weather (water and freezing ground temperatures) have an adverse effect.

 

Gaz

 

 

So in that case they knew about it but it wasn't of a size to require repair at the point in time it was identified or at the last time of monitoring.  So it wasn't a safety related pothole and therefore would not have been deep enough to cause damage.  It would therefore have gone on a list as a defect of a lesser category to be monitored during the regular six monthly monitoring regime the latter being deemed sufficiently frequent enough.

 

The same rules would therefore still apply...   They don't know about a defect that is deemed to be of sufficient size and depth to warrant immediate repair and they have a suitable monitoring regime in place to keep an eye on it for when it does get worse.  So unfortunately they still won't pay out as they won't be deemed responsible for failure to repair or monitor. 

 

Your quite right though...   Freeze thaw action can kill roads in a few months (4 to 6 in the worst cases) if initial surface defects exist and a lot of freeze that cycles occur in a short period..   Which is why they have 6 monthly inspection regimes for areas known to be at risk. 

 

For info a typical road surface will last 40 years, this being the typical design life of the road structure based on the number of heavy axles that would use it over that period and be good for about 7 after which it will start to deteriorate with a graph of %age deterioration vs time an s curve and an average rate of deterioration of 2 to 3% per year.  Defect gradings are usually on a scale of 0 to 6, with 0 being perfect and 6 being totally structurally knackered.  4 is probably a defect of the type you hit

 

[AnnoyingPentium]

Good luck sorting this out Gaz.

 

I'm not following up with the issues on my car caused by potholes as I don't need the aggro. I'm on my third set of drop links, broken two springs, knackered a shock absorber, and as a result of gubbed tracking had to shell out for four tyres. I think the main issue is that I can't pinpoint it down to ONE hole, instead it's a multitude.

 

And people wonder why I'm bitter and irritable?!

Edited 20 April, 2023 by AnnoyingPentium

[EnterName]

9 hours ago, J.R. said:

Or someone wise enough to carry a marker spray with their spare wheel!

I like the way you think, @J.R.😄

 

9 hours ago, J.R. said:

I bet someone else had reported it but they are not going to admit to it are they!

This is a very good point.

[Ootohere]

The Social Media / Websites etc where people do report or post can catch out Local Authorities or the Agencies / Contractors responsible for Inspections & Maintenance if they lie.

Repairs or temp repairs can be carried out and a pothole open up before a full repair happens if there is weather, like torrential rain / high traffic times like bank holidays etc.

 

http://briskoda.net/forums/topic/272686-motorway-blowout-2-tyres-wrecked-evergreens-fitted-oh-dear

The road here still can get torn up at any time and next week frosts are coming again. (shown in the video that is 10 years old, still no flyover built.)

 

Edited 21 April, 2023 by toot

[gumdrop]

I wonder if they have to disclose other incidents with the same pothole?

A claim with a registered letter seems to carry more weight than e-mails,

and has a different recording  method.

Edited 21 April, 2023 by gumdrop

[Aspman]

I suspect you are stuffed but there are maybe a few things to try.

So the only ways to win a pothole claim are -

The road was not inspected when it should have been  - here they've said 6 monthly and have evidenced the inspection
The pot hole has appeared in less than the inspection period, was reported by the public, but not patched or otherwise marked (cone) within the standard response time - N/A here.

What else can you do?

Ok so I would suggest that you put in an FOI request for pictures and measurements of that pothole at the last inspection.
Ask for any discussions, reports, emails, notes (electronic or paper) or any other relevant communications relating to that pothole
Ask for the documented policy or standard on what potholes should be fixed.
Ask for the policy on monitoring detected potholes which do not meet the threshold for an immediate repair

Those pieces of information might give you some leverage to appeal the decision if the pothole was just under the threshold for repair or if the don't actually have sizes.
i.e. they have no measuresments so how can they say it was undersize, or if it was just under it is not reasonable that it would have been left another 6 months.
The other information on policies gives you information to show if they have breached their own policies.

Depending on the amount involved you could raise a small claims action against the council. There is a pretty decent chance that they may just pay out, often for cases under a few thousand it's actually cheaper to pay out than to defend even if they win.

[mac11irl]

1 hour ago, Aspman said:

Ask for the policy on monitoring detected potholes which do not meet the threshold for an immediate repair

 

this would he my line of enquiry. in my opinion, and based on how we work in the rail industry, if you find an issue during routine maintenance etc thats not at an intervention level, the frequency of monitoring still gets increased in case it does reach a threshold before next planned routine inspection. 

basically, keep an eye on it in case it gets worse.

that pothole may have been at 250mm wide in Sept 2022. thats below intervention, but should be put on a monitoring list. if this isnt the case, then their standards need to be revised...

[Gaz]

2 hours ago, Aspman said:

Depending on the amount involved you could raise a small claims action against the council.

 

The tyre was £130, and the alloy will cost £1,016 (yes, you read that right!) to replace.

 

Many thanks for the suggestions Paul, that's really helpful 👍 

 

It seems unjust to me that I pay a licence fee to allegedly fund the road (appreciate it's called VED, not RFL now, but a Snickers is still a Marathon!), I pay tax for the privilege of insuring my car, I pay taxes to add fuel to my car.  The government got a 20% bung for the tyre I didn't want to replace (a disincentive there to maintain roads?) - heck they even got 20% for disposing of the tyre too.  If I've had to ensure my cars have all been roadworthy, and I can expect penalties if they are not, then why shouldn't I expect the highway to be vehicleworthy, and those with a duty to maintain it to be held to a similar account?  Feels like no accountability, tough ****.

 

I'll follow up with your suggestions once I hear back from them   Although I expect that might take time.

 

Gaz

[Warrior193]

1 hour ago, Gaz said:

 

The tyre was £130, and the alloy will cost £1,016 (yes, you read that right!) to replace.

 

Many thanks for the suggestions Paul, that's really helpful 👍 

 

It seems unjust to me that I pay a licence fee to allegedly fund the road (appreciate it's called VED, not RFL now, but a Snickers is still a Marathon!), I pay tax for the privilege of insuring my car, I pay taxes to add fuel to my car.  The government got a 20% bung for the tyre I didn't want to replace (a disincentive there to maintain roads?) - heck they even got 20% for disposing of the tyre too.  If I've had to ensure my cars have all been roadworthy, and I can expect penalties if they are not, then why shouldn't I expect the highway to be vehicleworthy, and those with a duty to maintain it to be held to a similar account?  Feels like no accountability, tough ****.

 

I'll follow up with your suggestions once I hear back from them   Although I expect that might take time.

 

Gaz

If they reject your appeal, strongly suggest considering taking it to County Court - they almost certainly will not want to defend that.

[Gaz]

A minor update as this continues to rumble along.

 

Their letter said it was not at intervention level.  An FoI response says they have 'no record' of it.  In reality this could be one and the same thing I guess.  Details they do have are subsequent to my reporting it.

 

They've had a change of contractor in between.  The response to my not accepting their rejection is therefore in a pile of legacy claims being worked through by the previous contractor, and will be delayed.  I've submitted a further FoI request around the change in Contractor, with a focus on reports and any other communications relating to the previous contractor not meeting targets/contract expectations.

 

I've complained about their failure to respond in the timeframe they said they would. My complaint was upheld.

 

I've made a further FoI request in relation to their Call Centre stats.  My interest here is average monthly stats, and specific ones around when I reported it.  Call waiting times and lost call rates are indicative, as if they don't answer calls, people can't report pot holes that are too big to report online.

 

It's a waiting game at the moment.  I'm still undecided about sounding out legal advice just yet.

 

Grange road continues to deteriorate.  Last week one of the pot holes was big enough to need a traffic cone, and prevented two-way traffic.

 

Gaz

 

 

 

[Warrior193]

13 hours ago, Gaz said:

A minor update as this continues to rumble along.

 

Their letter said it was not at intervention level.  An FoI response says they have 'no record' of it.  In reality this could be one and the same thing I guess.  Details they do have are subsequent to my reporting it.

 

They've had a change of contractor in between.  The response to my not accepting their rejection is therefore in a pile of legacy claims being worked through by the previous contractor, and will be delayed.  I've submitted a further FoI request around the change in Contractor, with a focus on reports and any other communications relating to the previous contractor not meeting targets/contract expectations.

 

I've complained about their failure to respond in the timeframe they said they would. My complaint was upheld.

 

I've made a further FoI request in relation to their Call Centre stats.  My interest here is average monthly stats, and specific ones around when I reported it.  Call waiting times and lost call rates are indicative, as if they don't answer calls, people can't report pot holes that are too big to report online.

 

It's a waiting game at the moment.  I'm still undecided about sounding out legal advice just yet.

 

Grange road continues to deteriorate.  Last week one of the pot holes was big enough to need a traffic cone, and prevented two-way traffic.

 

Gaz

 

 

 

Hello Gaz, no need for legal advice for County Court, online claim filing fees are low and are based on size of your claim. My understanding is that you can file your claim for hearing at the County Court most convenient to you. The only drawback I can see is that there is apparently a backlog of cases.

If the Defendant fails to appear at the hearing, I'm fairly sure you will get a default win for your claim. 

[Gaz]

Yeah, thanks Warrior 👍  I'm a retired member of a national Trade Union.  They provide legal support, so I'm likely to approach them in the first instance, and then decide whether I want to leave it in their hands, or go the County Court route.

 

Gaz

[Rgsmg53]

Quote

no need for legal advice for County Court,

As someone who has recently taken a fraudulent supplier through the Online Money Claim service (was Small Claims Court), it is not a process I would advise initiating without taking some form of advice, even if it is not true 'legal advice'. In my case, it is two years since I started the process and two hearings later (one online and one in person) and judgement in my favour, I am still no nearer getting my money (inc court fees) for what was a simple open-and-shut case with liability admitted by the Defendant. (Apparently only about 6% of Claimants receiving an Online Money Claim judgement in their favour ever get any money).

 

If a judgement were to be made against a local council then there are plenty of assets that (ultimately) bailiffs could seize and so the chance of them complying with any Court Order is much greater. However - and it is a significant 'however' - the Claimant is responsible for paying all court costs unless or until the judge awards these in the claimant's favour. Also, unless the 'online' judge decides otherwise, it is highly unlikely that expert witnesses will be allowed. This means the Claimant needs to be very sure of their ground. Is the local authority likley to argue the damage was not caused by their roads for instance? etc, etc. Of course, if the LA has already admitted liability then merely the threat of legal action will probabaly cause them to pay up before going to court.

 

On the other side of the coin, if the Claimant were to lose the case, the Claimant becomes liable for the Defendant's costs unless the judge directs otherwise. In my experience, LA legal teams work very slowly so, whilst their hourly rate (for lawyers) may be reasonable, the number of hours used will likely be higher than expected.

 

Health warning: This is my opinion based on personal experience. I am not legally qualified - merely a retired professional with experience of commercial litigation some years ago.  Feel free to ignore every word!

[Rgsmg53]

Forgot add this to previous post:

 

Have you considered an FOI request to see all the council's communications regarding your case and complaint (and anything else relevant)? It's worked well for the scotsman with his 2015 Audi and ULEZ !