Legal: Pothole crisis is 'catch 22'

Legal expert Alan Scott-Davies believes that legal challenges for pothole damage are a catch 22 situation.

Despite extra funds to repair the millions of potholes, and many potholes are actually craters, it is never going to be enough.

Local Authorities are cutting budgets like never before to balance the books whilst at the same time the number of claims for compensation from drivers is increasing. We all want to see the potholes repaired and roads improved generally but we do not want an increase in our Council Tax Bills to pay for it. I’m one of those people!

The Catch 22 is that as more drivers claim for damage to their vehicles, allegedly caused by poor roads, they are doing so via a claim that is linked to one for a personal injury. By making a personal injury claim a driver doesn’t have to touch their motor vehicle policy and under a No Win No Fee Agreement they secure compensation for both their injuries and the damage to their vehicle.

Local Authorities argue that essential funds are being diverted from repairing roads into defending claims. Good point but drivers argue that the claims would reduce if the roads had less potholes creating the actionable defects in the first place.

A word on the legal obligations by Local Authorities to maintain roads. They owe us a duty of care to maintain roads at public expense. However s. 58 of the Highways Act 1980 allows a Local Authority to defend claims on the basis that they had taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly.

All councils should have a reasonable system in place whereby they regularly inspect roads and repair them if necessary – normally every 6 months. Provided they have followed their system, as they should, most Local Authorities are successful in defending claims for compensation. As a Claimant you have to prove that they either had no regime of inspection in place or that they failed to follow it and therefore acted unreasonably.

There is a fairly recent case on this point and if anyone wants to indulge in some ‘light reading’ then have a look at the case of Devon County Council v TR . TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the near side and his passengers were very seriously injured in the ensuing crash into trees alongside the road.

They sued him and he made a third-party claim against Devon County Council alleging that the defective state of the offside of the road was what had caused him to lose control. This is actually a very interesting case, full of legal arguments, and if anyone would like full details just let me know. I won’t spoil the decision but as with all things legal it is never straight forward.