Road maintenance in England & Wales is underfunded by around 55% (£1 billion a year), authorities pay out more than £30,000,000 in compensation claims. If authorities were given the budget they requested, English authorities would take 12 years to catch up on the current backlog!
1) Collect evidence (when safe to do so) ASAP (5-10mins) – Create a document ready for your claim, don’t submit it YET!
- Photos of the location
- Photos of the pothole (include something for scale e.g. a measuring tape/metre stick/ruler etc)
- Measure the pothole (width, depth, length etc). Note – generally, potholes less than 40mm deep are not accepted in Court as being dangerous to vehicles. Take photos of the ruler in the hole for extra proof. Be VERY careful doing so on a busy road, wait for a quiet time and ensure you wear bright clothing, obviously don’t do this on dual carriageways or motorways it maybe illegal / extremely dangerous.
- A map showing the exact location, include exact coordinates to help further. Draw on the map to show exactly where the hole is/was.
- Notes about the position on the road (e.g. no way to avoid it, hard to see it etc), rough width of the road, is the road kerbed, is it near a school/hospital/building site etc? is it on a bus route? Not enough space to avoid it without causing hazards to other motorists etc.
- Make a sketch of the road showing location, other potholes, location compared with other people wheel tracks, traffic lights, roundabouts etc. The more detail the better.
2) Report the pothole ASAP (5 mins)
As soon as it happens report it to the local council, 90% of roads are managed by them and if this road isn’t they will inform you, not only does this speed up the chances of a fix but also makes you look like a caring citizen and not just someone wanting a ‘quick buck’. You don’t have to inform them you’re making a claim YET! Ensure you give them your full details and they’ve got record of you reporting it and enough detail for them to find the pothole.
3) Get your car fixed/repaired
There is no point trying to claim any money back YET, get your car fixed and ensure you keep all the receipts.
Keep note of additional expenses (e.g. time off work, recovery costs, insurance premium increase etc).
4) Submit a Freedom of Information Act to see if others have already reported it (5 mins) – Do this BEFORE you try and claim!
It sounds crazy but if others have reported it and the council have left it untreated your case is going to be potentially solved a lot quicker. Basically, email your local council with an email subject of ‘Freedom of Information Act – Request for Information’, then ask for information relating to the road you had the issue on. REMEMBER you still don’t have to mention you’re making a claim yet, in fact we wouldn’t mention it yet. Write something like this:
“Under the general requirements of the Freedom of Information Act 2000, I would be grateful if you would provide the following information in relation to <insert road name>, <insert town name> and in particular the section between <insert exact location/road> & <insert adjoining nearby road>
- In the two years prior to my incident what dates have previous safety inspections been made
- What defects have been identified during the above safety inspections
- In the above safety inspections how were the inspections carried out, was it walked or driven, at what speed was the inspection, who carried out the inspection & were they acting alone
- What are the time frames between carriageway safety inspections
- In the two years prior to my incident what other complaints and/or enquiries have been made about this carriageway
- The hierarchy classification of this road/area
- The road/section number
- The defect intervention criteria adopted in relation to the identification of all categories of carriageway potholes (in other words, this means how they define a pothole as requiring attention)
- What is the timeframe between identification of a pothole and the repair (temporary and permanent) of all categories of carriageway defects.
- Has the authority formally adopted all or part of the standards contained within the national code of practice for highways maintenance management.
They have 20 working days to reply, if they don’t reply in that time, send another letter/email explaining the time has expired and you’re giving them a further couple of days to reply. If they don’t, you can complain to the Information Commissioner’s Office.
5) Understand the likely response to your claim before it arrives! Section 58 of the Highways Act 1980 (common defence of councils). (5-10mins)
Councils should be regularly checking roads & repairing them, and must adhere to the “Well Maintained Highways” guidelines, if you can prove their system isn’t good enough or they don’t adhere to the above guidelines you have a good case. If you can’t then most likely your claim will get rejected but this could be as simple as someone reporting the pothole and then the council doesn’t do anything about it for several weeks.
6) Make your claim – stay calm, remember you may be recorded, it might be played in court &/or your letter read out (5-20mins)
Write a letter to the authority / council ensure you include:
- Exact location (copy and paste from your evidence)
- Exactly what happened, why it couldn’t be avoided etc
- Explain how you reported the pothole immediately to avoid others getting similar damage / further costs to the council/authority
- The damage you incurred and explain you want compensation
- No need to mention the Freedom of information request you made yet
Wait for a response from the authority, most likely they will refuse your claim under Section 58 of the Highways Act 1980, stating that they have a system in place for inspections.
Stay calm. Don’t do anything you will regret, don’t shout down the telephone at them, don’t send an angry letter back. Most authorities will have been advised by their legal teams to send out these letters as they know the vast majority of people will simply not bother to continue the claim.
This next point you will need your Freedom of information response.
7) Compare the information from your Freedom of information response Vs the ‘Well-Maintained Highways’ guidelines & consider your case (10-60mins)
Make notes on how the authority has or hasn’t followed the guidelines and think to yourself if you’ve got a good case or not. It might be worth discussing this with a family member or friend or to seek further legal advice at this point (however it’s not 100% needed)
- Compared with the table/description in section 9 was the road given an adequate hierarchy classification based on its usage and location?
- With the current hierarchy classification in mind, was the road safety inspected at the recommended frequency? If you believe the classification is wrong then mention this point again.
- If a road safety inspection was done, was it done at a fair speed to judge possible damage? For instance if it was over 25mph it may be too quick to identify defects. If it was done at a time of day that differs from when you were using it, e.g. they tested it mid-afternoon with a clear carriage way & your incident happened in heavy traffic at a lower speed.
- In the past others have won cases if there wasn’t a driver + an inspector present during inspections as a lone inspector look for road defects whilst also safely controlling a motor vehicle. Was there a separate inspector present?
- Were the authority already aware of the pothole, had they already found it during inspections or had another member of the public already reported it. If so, did the authority repair it within the recommended time?
- If a safety inspection was carried out soon after your incident, was the pothole identified then?
- Has that previous part of the road already been subject to previous cases, did it have a history of potholes appearing. If so, had the authority increased the number of safety inspections of the road?
- When the inspection of the road was done by the authority did they deem that pothole not deep, long, wide enough for them to deem it dangerous? If so, do their standards compare to national recommendations?
- If the authority has adopted the national code, have they complied with it?
If you’ve answered No to any of the above points then you MAY have a decent enough case to win.
7.1) Respond to the Authority again
Now respond to the authority (via email or letter) with how they have not followed the guidelines from above, ensure you only mention the ones that are relevant to your case, include evidence of why. Inform them that you don’t consider that they have satisfied Section 58 (or any other reason they’ve not granted you compensation) & why.
Stay calm. Threats of solicitors, lawyers or courts are not going to help your case. Again remember anything you send/say may be read out in court.
If you’ve pointed out obvious discrepancies, don’t just presume they will pay you. They may have a good explanation of why they didn’t meet them or why they believe your evidence isn’t correct.
Don’t hire a solicitor or start court proceedings without first following the above points.
If your request for compensation has been refused by the authority you will have to think how strong your case is, obviously if you’ve got to this point you probably believe you’ve got a decent case.
It’s up to you how you proceed but hiring solicitors etc will cost you more money and if your case doesn’t win you risk further costs, if you believe you can ‘fight your own corner’ or believe you have a good enough case then going to small claims court will be your best bet, you can complete an application online. Costs start at £25 for Small Claims proceedings, however, further costs may be incurred if it goes to a full hearing. Applying online will save money.
Remember if your case is a small claim – under £10,000 – it may be dealt with using written evidence, without a hearing.
If there is a hearing, you can either:
- represent yourself
- pay for a barrister or solicitor to represent you
- ask someone to speak on your behalf, like your partner, parents or an advice worker – you must get the court’s permission
If you’re unsure on the strength of your case then it might be time for some proper legal advice.
8) Negotiate your offer (10 mins)
If the council has made you an offer (e.g. the cost of a replacement wheel & tyre) be willing to negotiate it, explaining the additional costs you’ve incurred (time off work, recovery of your car etc). Be fair and don’t take the p*ss.
Good luck and be sure to comment below if you manage to win.