LEGAL CORNER: If you are injured or suffer damage from a pothole, what can you do?

WHAT rights do you have if you’ve suffered injury or loss from hitting one of our numerous, local potholes?

Local highway authorities (HA) have an obligation to maintain highways, but not to improve them.

They have a defence to any claim 
if they can show they have exercised all reasonable care in ensuring the road is safe.

But what is ‘all reasonable care’? 
If the road has a large pothole into which car or bike wheels can fall, surely they have failed in their duty? Not necessarily.

Much depends upon:

:: the nature of the road, ie is this a main highway (and therefore the traffic that is reasonably expected to use it)

:: the standard of maintenance appropriate for a road of that character and used by that traffic

:: the state of repair in which a reasonable person would have expected to find the highway●

:: whether the HA knew or ought to have known the condition of that part of the highway where an accident happened, ie have potholes already been reported?

:: where the HA could not have reasonably been expected to repair that part of the highway before the accident occurred, what warning notices of its condition had been displayed?

The highway authority has a duty to inspect the roads, ensure their safety, and fix any defects which might make them unsafe. They also have a duty to fix dangerous potholes once brought to their attention.

There are cases where a highway authority has inspected the road and noticed a defect, and an accident has occurred between the defect being flagged and repaired. Here, the court will look at the size of the defect, the amount of traffic using the road and the danger posed. Obviously the greater the danger, the less tolerant of delays the court would be. If there is a serious defect, warning notices will be expected.

Questions and answers:

Q: What do I do if I hit a pothole and want to make a claim?

A: Take several photos of the hole and surrounding road, to include its depth. Ideally use a tape measure or ruler to show depth and width.

Note clearly the name of the road and where on that road the hole is.

Whether your claim succeeds might depend upon when the HA last inspected the road and if it can be shown that they knew, or ought to have known, that it existed and was likely to be a danger.