Potholes or defective road surfaces
Under the Highways Act the Authority has a duty to ensure that highways are in a safe condition for all categories of traffic to pass over.
To make a successful claim we need as much information as possible about the surrounding circumstances - how long the defect had been there; if anyone else had reported it; whether you already knew it was there etc.
The legal tests that are applied are these:-
- Is the defect in question dangerous?
- Did it cause the accident?
Even if these two hurdles are cleared, the Highway Authority then has a defence provided in the Statute. If it can show that it had in place an appropriate inspection and maintenance regime with which it complied then it can escape liability.
Have hit something sticking up from, or a hole in, the surface of the road?
1. We must show that the defect is bad enough to be considered a clear hazard to people using the area.
The guideline marker for defects on the pavement is that the trip must be 1 inch either, sticking up, or deep, into the pavement. There is no equivalent guideline for defects in the road, but the inch depth is a useful guide.
Dangerous is generally understood to mean a defect in the highway which impairs the value or usefulness of the carriageway and provides a safety hazard for road users. A sharp edged depression of 40 mm or greater in depth and extending in any one direction for more than 300 mm may constitute a safety hazard and should be repaired in accordance with individual Highway Authority response time.
An appropriate inspection and maintenance regime depends upon the category of the road, the speed limit, whether urban or rural and the volume of traffic. The frequency of inspections can be anything from monthly to yearly.
It can be the case that a pothole will remain unattended even if the council allege that an inspection routine has been carried out. For example, if a pothole is obscured by parked traffic then it may not receive the attention it requires.
That part of the claim is usually the least difficult to deal with, because it will be fairly clear in most cases whether or not the defect is a danger to road users. However, it is important that you get some photographs of the defect BEFORE it is repaired. Once the council (or other body responsible for the area) becomes aware that there has been an accident, they will very quickly to carry out repairs.
Try to obtain photographs using some sort of measure against which to compare the size - e.g. a rigid ruler, your water bottle, or some other identifiable object.
2. The second thing we must show is that either: the local authority with responsibility for the road either knew of the defect and did not repair it; or that they did not carry out regular inspections of the road.
This should usually be done at a minimum of 6 monthly intervals, but what is considered reasonable will vary according to how major the road is.
Finding out whether the road has been inspected regularly enough is the difficult part of a claim such as this. Local authorities rarely co-operate in these claims, and often the only way to find out whether they have inspected is to issue proceedings through the court. We can then force them to show us their inspection records.
If your accident has been caused by something left/fallen/spilled on the highway
Unless the council were made aware of the spillage before your accident (and did nothing about it within a reasonable time), then you will have difficulty in claiming against the highway authority.
You should be able to claim if we can identify who was responsible for the spill, then you will be able to make a claim against them: the most common example of this type of claim is where work has been carried out and the contractors have failed to clean up properly, or have left their materials on the road, causing a hazard.
However, if you are unable to identify who caused the spillage then it is still possible that there may be a claim through the Motor Insurers Bureau (link to the MIB?) provided we can prove that the spillage was caused by a motor vehicle which would have been required to have insurance for use on the road (most vehicles).
NOTE - These claims can take on average 12 to 18 months to settle due to most local authorities' or contractor's delays. However, we will deal with them as quickly and as efficiently as possible and use the courts where possible to obtain documents before we enter into litigation.
If your accident has been caused by badly carried out repairs
When the work has been carried out on the road by the highway authority or someone contracted or authorised by them these types of claims may be easier to prove. The important thing is that you get photographs of the poor surface before it is repaired, so that we have evidence of its condition. The fact of the poor repair will usually be evidence of negligence and we will then usually only have to show that the defect is sufficiently poor as to be a hazard to road users.
Grids inserted the wrong way around
Accidents can be caused where drain covers with slots are inserted with the slots running parallel with the direction of the traffic instead of perpendicular to it. Always seek advice, as the general rules which allow the highway authority to escape liability may not apply here.
