CLAIMS AGAINST HIGHWAY AUTHORITIES
The government’s announcement that an extra £146m of funds is to be made available to Councils to fix damaged roads due to winter floods has not come too soon for many motorists. Over the last couple of months, all over the country, there has been report after report of serious incidents where cyclists, motorcyclists and motorists have been involved in serious accidents when the wheels of their vehicles have hit a pot hole, frequently resulting in horrifying accidents. The lucky ones have got away with just the damage to their vehicles; the unlucky ones are not only out of pocket but suffer severe injuries, which, for some are life changing.
In January, it was reported in the papers of a teenage driver in Gloucestershire who nearly died when her car hit two potholes measuring 40 cm by 10 cm on the A4173, causing her to crash into a tree when she lost control. She was lucky to escape with only concussion and fragments of glass embedded in her head and face. She was saved from fatal injuries by only a hedge which stopped her car from going any further. The only warnings of these pot holes were white paint around the pot holes but which had worn away due to the length of time it had been there despite the fact the A4173 was a busy road – the pot holes should have been repaired much sooner, although Gloucestershire Council denies that there had been any delays.
A more sinister case reported was of Northamptonshire County Council who lied to try and avoid paying out to Jane Tramontana who’s Nissan Micra was damaged when the tyres hit a 3ft wide hole causing blow outs. The accident was reported to Northamptonshire CC but they denied any knowledge of the defects and refused to pay any compensation. Faced with the injustice, Jane Tramontana and her husband pursued the council through the county courts when they learned that they had been informed with records which showed the potholes were on a priority list for work to be carried out, however, the council had failed to carry out the work. The damning part is that the council chiefs had denied having any knowledge of the problem.
Likewise Colchester County Council also tried to deny Frank Cattrall any payment for damage to his car when the suspension was wrecked when his Renault went into an 18” in by 6” pothole. It was only by applying for information under the Freedom of Information Act that he found that council workers had reported the hole during an inspection, requiring priority repairs which should have been repaired within 28 days which hadn’t been done. The Council had alleged that it was poor driving skill that caused the damage to Mr Cattrall’s car but, he took the council to the county courts and was awarded the cost of repairs and costs. Mr Cattrall commented that a lot of drivers would just throw up their hands in despair when so many obstacles are placed in their way, and they would just forget claiming because of the hassle; but, if the Council are allowed to get away with it, there would be no incentive for them to do more to prevent such accidents happening.
If you have suffered injuries as a result of a pothole accident on a highway that is maintained by the council, i.e. not on a private road, then the claim is made under section 41 of the Highways Act 1980. Section 41 only applies where there has been a failure to maintain the highway. If the accident was caused by obstructions, objects or substances on the highway (and doesn’t form part of the highway) then section 41 will not apply. [Section 41A provides an exception to this in respect of snow and ice.]
To succeed under section 41 it is necessary to show that the defect presented a “reasonably foreseeable danger”. Quite often quoted as the 1 inch rule that Judges have adopted as a “rule of thumb”. It is also generally accepted that on the carriageway, the depth of the defect must be greater (40 – 50 mm) although there is no hard and fast rule.
Once a defect can be established as a reasonably foreseeable danger, the burden then shifts to the Council to prove that they have taken reasonable care to ensure the highway was not dangerous to traffic. This is the part that most claimants will experience difficulty with. As can be seen in Mrs Tramontana and Mr Cattral’s cases, both councils tried to deny their claims. It was only by tenacity and seeking redress from the Courts that they managed to get compensation. Asking for, and obtaining, the Council’s inspection records is paramount in verifying what actions the Council took in order to ensure the highway was not dangerous to traffic. Quite often, inspection documents are not easy to read or decipher. It is very important to check and clarify anything if there is any doubt. It is vitally important to collate evidence such as taking photographs of the pot hole, taking measurements and obtaining witness statements early on.
If the highway inspection records demonstrate that inspections were completed properly, then a court is likely to accept the highway authority’s evidence, therefore it is crucial that the records are checked with a fine tooth comb.
The £146m has been welcomed by Councils, especially given the harsh winter floods that most of Country has suffered. For road users, this is welcome news indeed.