January 10, 2014
As a solicitor who deals regularly with injury claims against local authorities, this time of year usually marks the start of an increase in those made by road users. Whilst bad weather and darker nights can both play their part in the number of accidents, the main hazard which emerge are potholes. Whether it is cars losing control or pedestrians falling into them, they are a nuisance, and at their very worst can cause serious injury, even death.
The Pothole Problem
Figures released by Britannia Rescue suggest that potholes cover a massive 295 square miles in total more than twice the size of the Isle of Wight. There has been a 79% increase in claims relating to potholes from motorists and pedestrians alike, with UK councils now receiving more than 32,600 claims each year.
It's easy to think of potholes as just an inconvenience; however their presence on our roads can have serious consequences. Take for example the case of Christian Brown, which highlights just how dangerous potholes are to cyclists. Despite wearing a cycling helmet, Christian died from serious head injuries when he was catapulted off his bike after hitting a pothole.
Sadly local residents had made more than 25 complaints about the state of the road in the six months prior to his accident, but it wasn't until after Christian Brown tragically died that the potholes were finally repaired.
How is a pothole formed?
The extremes of the British weather are one of the reasons that potholes can seem to appear overnight, although in truth the constantly changing temperatures are doing their work unnoticed under the tarmac.
Most potholes we see on a daily basis are created by water seeping through the road surface via cracks caused by traffic. As temperatures drop, the water freezes expanding as ice, which pushes the tarmac upwards and ruptures the surface.
When the ice melts it then leaves a void below the surface, which caves in under the weight of vehicles passing over the top.
The highway authorities are duty bound under section 41 of the Highways Act 1980 to ensure that pedestrians and vehicles are able to pass safely along any highway maintainable at public expense.
This is not always an easy task within the current economic climate but the duty is still there to ensure that roads are safe to pass along as far as is 'reasonably practicable'.
Pothole claims against Councils
Claims against highways authorities are notoriously difficult to prove.
A lot will depend on the records provided by the council or highways agency. If a local authority is to defend a claim successfully they will need to provide evidence that they carried out regular and appropriate inspections and that any repairs were completed in a timely fashion. It is also important for local authorities to show that they responded promptly to reports of potholes and that they subsequently inspected and repaired them quickly.
Failure to carry out proper and thorough inspections will often result in local authorities being liable for any claims.
Roads are inspected in accordance with their usage, so for example:
- • Narrow country lanes in rural areas are likely to be inspected on an annual basis
- • Residential streets with bus routes may have six monthly inspections
- • Routes regularly used by the emergency services may be inspected monthly
One claim that I pursued for a client was successful because although the road had a yearly inspection and was effectively a dead end, it simply wasn't sufficient for a road where pedestrians had to cross whilst keeping an eye out for traffic coming from three different directions.
If authorities carry out these searches and can provide evidence, they will have shown that they have taken 'all reasonably practicable steps' to maintain the road. If a pothole occurs in between these intervals, then a claim probably will not succeed.
But likewise if a pothole that warrants a repair appears and is reported by a member of the public between inspections, and no steps are taken to rectify the problem, the local authority may be found liable if someone subsequently has an accident.
Reporting potholes for repair
Unfortunately potholes can be an unavoidable part of driving, but by reporting them whenever spotted we can all help to prevent accidents occurring in the future. To make this easier, the government has set up a web site (www.gov.uk/report-pothole) which will direct you to your correct local authority to report a road fault.
For our clients, we've also created a guide on how to comprehensively photograph and document road defects.
While we can all be guilty of complaining about potholes, how many of us actually take the positive step of reporting them to the council? Remember the next person who encounters it may not escape unharmed.