The state of our roads and pavements is something of a hot topic at the moment.
As a firm we don’t do claims for pothole damage caused to your vehicle alone. This is because such claims are almost invariably dealt with in the Small Claims Court, where the successful party is only awarded very limited costs. That leaves them having to pay the bulk of their legal costs themselves, so that the cost of paying us would be out of proportion to the sum at stake,
But I do think it might help if I set out some of the basics around claiming for damages if your suffer injury due to a pothole or other surface defect, as in injury cases the costs recoverable from the other side are higher, which makes using a solicitor a more attractive proposition for Claimants.
Potholes
While potholes create an obvious risk of damage to vehicles, perhaps less obvious are the risks they present of causing injuries, in particular to cyclists, motorcyclists and pedestrians.
But if you do suffer injury as a result of a pothole, you might be able to claim compensation.
The key points to note are:-
- Depth – although it can vary from area to area, the pothole should ideally be at least 50mm deep although sometimes 40mm might suffice.
- So take photographs and measurements of the pothole. Ideally include your measuring device in the photographs so that the depth of the hole can be clearly seen. Also take a range of photographs, some from further away showing the pothole in the context of its surroundings so that it can be easily identified, some from closer in so that the measuring device can be seen (obviously extreme caution must be taken when taking these photographs and/or measurements if the pothole is positioned in the road).
- You need good evidence that the pothole was the cause of your injury. Again, the photographs will be useful but ideally you will have witnesses as well – get the names and contact details of anyone who saw your accident.
- How long had the pothole been like that – this is crucial because it’s a fact that potholes occur and it’s a fact that it’s impossible for every pothole to be instantly fixed. A Court will allow a reasonable period of time for the pothole to be repaired. There isn’t a set length of time that’s deemed reasonable, it varies from area to area and case to case. It will depend on how serious the pothole is, how busy the road is, who uses the road, even where in the road the pothole is located. Just by way of example if there’s a deep pothole in a heavily used cycle lane then it ought to be fixed sooner than a pothole in a little used country lane. Can you trace other road users who can say how long the pothole had been that bad? Maybe occupiers of close by houses can help?
- Report the incident as soon as possible after it’s happened. While your solicitor should obtain the Highway Authority’s inspection / maintenance records for the road, these aren’t always entirely accurate but if you’ve reported the accident and the pothole still isn’t fixed for some considerable while afterwards, that would provide good evidence that the system of inspection and maintenance is lacking.
- More on inspection and maintenance – although policies for the inspection and maintenance of potholes vary from area to area, the policy has to be reasonable and, once set, the Highway Authority have to follow it. Your solicitors, in the event that liability for the accident is denied, will be able to check the records, the reasonableness of the policy and whether or not the Highway Authority followed their own rules.
- Private roads – basically all the above applies, it’s just that the claim would be against either the land owner or management company responsible for the road. So if, say, your accident occurred in a supermarket car park, the starting point would be to submit a claim against the supermarket itself.
- Limitation – generally speaking, for injury claims you have 3 years from the date of your pothole accident in which to either settle your claim or begin Court proceedings to protect it. This is known as your “limitation period” and if the deadline is missed your chances of being allowed to bring the claim are slim to non-existent.
Other surface defects
- These can be just as dangerous, including such things as defective/loose/missing paving or foreign objects left sticking out of the ground for example metal posts, tree stumps, broken bollards etc
- If the defect is in a walkway such as pavement or pedestrianised area then it really needs to be at least 25mm in height/depth. Note that this is less than is required for a road defect.
- Again follow the advice set out above regarding photographs, witnesses (to the incident and to how long the defect had been that bad), and make sure you report your accident to the highway authority or private land owner.
- In the event that blame is denied we would carry out the same analysis of reasons for denial and the inspection/maintenance regime
- And finally the same rules apply regarding the 3 year limitation period.
Feel free to contact our specialist injury claims lawyers for more advice – info@furleypage.co.uk or 01227 763939.
