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Potholes, Potholes Everywhere....

The severe snow and ice may have disappeared (and let’s hope it has gone for good this winter), but in its wake it would seem the roads are falling apart.  Giant potholes appeared as a result of the sub-zero temperatures and road users may still be finding that they are negotiating deep craters in the tarmac!

The Independent’s website - www.independent.co.uk offered the following warning from Adrian Tink, of the RAC in early January, when he was quoted as saying…."It's clear that the severe whether conditions will create thousands of new potholes.  These potholes can be a serious danger for motorists and can cause extensive damage to cars.  Local councils will need to work around the clock to fill them but they will require further support and funding from the Government."

So can the local councils afford to fix the roads, what would be a reasonable time frame for them to do so and what happens in the meantime?  With potentially hazardous driving conditions on some of the country’s roads, if you are hurt or your vehicle is damaged due to the condition of the surface of the road, where do you stand?

Personal Injury lawyer Karen Clarke offers some advice:

“Local Authorities have a duty to ensure maintenance of highways and footpaths.  As part of their maintenance they must ensure regular inspections are carried out.  If a defect is found during the course of the inspection, it should be reported and then the necessary repairs undertaken.”

Karen goes on to explain what happens when she sees someone, who has been injured as a result of the condition of a highway or pavement, and who may potentially have a claim.  “Generally we rely on the following:

a)     That the Authority failed to carry out, or maintain an adequate system for inspection of the condition of the highway

b)     That they failed to take any or any sufficient notice of complaints about the dangerous condition of the highway.”

However, identifying a defect is not a straightforward matter, as Karen points out.  “Some defects will be classed by the Courts as not actionable, for example if someone trips over a pathway slab, or falls into a pot hole, the defect must have a depth of at least 1” in order to commence a claim.  In addition the defect has to be dangerous, and has to have contributed to someone actually sustaining an injury.”

Not all of us will realise that Local Authorities classify roads and pathways into A, B and C categories.  Each category has its own system of inspection, for example those classified as A will have 3 monthly inspections, those classified as B - 6 monthly inspections and those with a C rating will be inspected annually.  It is essential that when classifying the roads and pathways the Local Authority considers what the road or pathway is used for, in order to determine which category it should fall under.

Of course there are other factors which affect roads and pathways which need to be considered, for example if there are road works being carried out by utility providers, such as water, gas and cable, has the Local Authority made sure that any damage done is then repaired appropriately.  Knowing that the work has been undertaken, has the Local Authority inspected the area once the work is complete?

The weather takes it toll on our roads and paths and the recent Big Freeze will have had a massive impact, Local Authorities should be assessing the damage and carrying out repairs.  Of course, if the public see defects they should report them to their Local Authority to ensure they are repaired. 

It is far easier to succeed in a claim against a Local Authority if it can be proved they were aware of the defect.  If the Local Authority has been advised of the defect then there is an argument to say they had constructive knowledge, with respect to the problem, which should have necessitated an inspection and repair.

But of course it isn’t just the highways and pavements that are affected – what about retail parks, supermarkets and leisure complexes?  Karen explains similar procedures for checking and maintaining the surfaces apply, but instead of the Local Authority being responsible, under the Occupiers Liability Act, it is the owner of the land who owes all lawful visitors a duty of care, and so they would be liable.

Finally, what happens if your vehicle has been damaged as a result of a pothole?  Karen advises “It can be difficult to bring a claim, and where the claim is for less than £1,000 there is no provision for the recovery of legal fees.  Whilst the same principles apply, evidence will need to be gathered that the Local Authority failed to repair the defect, and to do this could be time consuming.  Unfortunately, to pursue such a claim could end up being quite costly.”